FPY v NSW Trustee and Guardian

[2023] NSWCATAD 285

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FPY v NSW Trustee and Guardian [2023] NSWCATAD 285

Hearing dates:

5 September 2023

Date of orders:

31 October 2023

Decision date:

31 October 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

T Simon, Principal Member

Decision:

The decision of the respondent to sell the property is affirmed.

Catchwords:

ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) – Trustee and Guardian - interests and welfare of protected person – whether to sell the protected persons property.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2014 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

NSW Trustee and Guardian Regulation 2017 (NSW)

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FPY (Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Solicitors:
R Maytear (Applicant)
NSW Trustee and Guardian (Respondent)

File Number(s):

2022/302633

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act, (2013) the publication of the applicant’s name is prohibited.

Reasons for Decsion

1. These proceedings relate to the administrative review of a decision made by the Trustee and Guardian (the Trustee) to sell the applicant’s residential strata unit. On 27 April 2021, the Guardianship Division of this Tribunal made a decision committing the estate of the applicant to the Trustee and Guardian (the Trustee). On 29 July 2022, the Trustee made the decision to sell the applicant’s strata unit. The applicant presently resides in the unit. On 30 August 2022, having conducted an internal review of the decision, the Trustee affirmed the decision.

2. On 7 October 2022, the applicant made the application for administrative review of the decision to sell the strata unit. On 18 October 2022, the decision to sell the strata unit was stayed by consent of the parties. On 10 March 2023, the proceedings came before me for final hearing. I remitted the decision to the Trustee for further consideration pursuant to s 65 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). On 12 July 2023, the Trustee again affirmed the decision to sell the property and the applicant pressed her application for administrative review of the new decision.

3. The matter was heard on 5 September 2023 and after the hearing was concluded and the proceedings were reserved, the applicant emailed various documents to the Registry. The applicant was informed that the hearing was concluded, and that the proceedings were reserved and that if she sought to provide further material, she would need to make application on a miscellaneous matters form and identify the basis for seeking to reopen the proceedings. No such application was provided, and I have not considered that material.

4. I have determined to affirm the decision of the Trustee.

Legislative framework

5. Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states that the ADR Act provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Pursuant to s 9(1) of the ADR Act, NCAT has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to NCAT for administrative review under the ADR Act.

6. Pursuant to s 62 of the NSW Trustee and Guardian Act 2009 (NSW) an affected person may apply to Tribunal for an administrative review under the ADR Act of a decision of the NSW Trustee that-

(a) is made in connection with the exercise of the NSW Trustee's functions under this Division, and

(b) is of a class of decision prescribed by the regulations for the purposes of this section.

7. I am satisfied that the applicant is an affected person within the meaning of section 62(2) of the NSW Trustee and Guardian Act and that the decision made by the Trustee was in connection with the Trustee’s functions in the management of the estate subject to the financial management order and so the Trustee’s decision is administratively reviewable by the Tribunal (reg 45 of the NSW Trustee and Guardian Regulation 2017).

8. Section 40 of the NCAT Act provides that an application for administrative review to the Tribunal is to be made in the time and manner prescribed by the enabling legislation or the procedural rules. Section 55(2) of the ADR Act provides that, subject to the enabling legislation, an application is to be made in the time and manner prescribed in the procedural rules. Rule 24 of the Civil and Administrative Tribunal Rules 2014 (NSW) requires that an application for review must be made 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of the ADR Act. The internal review was finalised on 30 August 2022 and the application was not made to the Tribunal until 7 October 2022, making the application some 7 days out of time. However, an extension of time may be permitted under s 41(1) of the NCAT Act and the applicant applied for an extension of time.

9. The applicant submits that the delay in making the administrative review application is because she originally filed the application in the wrong division. Attached to the original administrative review application to the Tribunal, is a letter from LegalAid NSW dated 7 October 2022. It explains that the applicant had inadvertently filed the administrative review application in the “strata division” (presumably the Consumer and Commercial Division) of the Tribunal. The applicant subsequently received correspondence from the Tribunal that the application was misconceived. The Trustee does not object to the extension of time and given the reasons for the delay and the length of the delay I was satisfied to extend the time for the making of the application until 7 October 2022.

10. Section 63 of the ADR Act requires that in determining the application for review, the Tribunal is to decide the "correct and preferable" decision and it "may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision"

The financial position of the applicant

11. The Trustee submits that the property is required to be sold to be able to pay the estates liabilities and to avoid the possibility of debtors enforcing their rights to obtain judgement debts and the mortgagee exercising their right the property. The Trustee also submits that it is not in the overall financial interest of the applicants estate to retain the property and doing so will only place further strain on the estate in the future.

12. The applicant submits that should the strata unit be sold there will be difficulty in arranging alternate rental accommodation as rents for similar properties in the area are more than her mortgage repayments. In that regard the applicant submits that the decision to sell the unit is not in the financial interest of the estate. She also submits that that she has had difficulty obtaining a copy of her citizenship certificate which has meant that she has been unable to obtain a working with children check and so has been unable to work. She submits that while it has taken some time to arrange for the replacement certificate, she expects to receive it shortly and she will be able to operate her own business and start taking clients shortly. The applicants submits that the decision to sell the property should at least be delayed until she has all matter in place to effectively start seeing clients.

13. In a letter to the applicant dated 11 April 2023 (exhibit 4, p 2), the Trustee has set out the financial position of the estate as at the time when the estate came into their financial management:

Assets

St George Bank Account $0.00

St George Bank Account $7.41

St George Bank Account $0.31

[strata unit subject of the decision] $300,000.00

Liabilities

Pepper Money Mortgage $146, 382 as of 9th of July 2021. Debt collectors involved at this stage.

Original Pepper Money loan was for $148,000.

Strata Arrears $2,440.14

Origin Energy $2,002.72

Shoalhaven Council Rates $2,008.69

Shoalhaven Council Water $1,694.40

ANZ Credit Card $2,417.69

Bomaderry Pharmacy $600.00

14. The letter also notes that while the estate has been under financial management by the Trustee, the following has occurred to reduce the liabilities:

- Pharmacy account paid to date

- Origin Energy account paid to date

- Court Fine (centrepay deduction) paid off

- Pension rebates applied (and backdated) to council rates, water rates and origin energy Successful hardship application to Shoalhaven Council resulted in $1500 reduction to total arrears. Payment plan set up with Shoalhaven to repay debt of $20 per fortnight.

Shoalhaven Council rates paid off in full. Water rates on payment plan continuing.

- Waivers requested for ANZ Credit Card and Strata Levies- neither successful

- 12 Month Mortgage repayment suspension requested- declined

- Mortgage refinancing investigated, due to current arrears and overall estate situation this was deemed non-viable

- … payment plan set up currently paying $872.51 per month. Balance now $142,911 owing.

15. The Trustee submits that on 25 February 2022 the estate incurred a further debt of $2,700.01 to a builder which is being repaid at $25 a week and which the applicant disputes (exhibit 4, p 3).

16. At the hearing the Trustee also provided an assets and liabilities statement (exhibit 7) which records that as of 5 September 2023, the current status of the estate as follows:

Assets

- Strata Unit                $300,000

- Car - Mitsubishi Lancer 2002       $0.00

- OPC - Trust Account         $8,462.70

- Bank Account - St George Bank      $0.00

- Bank Account - St George Bank      $136.88

- Bank Account - St George Bank      $0.12

Liabilities

Pepper Finance (mortgage)      $127,788.23   

Regional Strata Law          $9,454.62

ANZ credit card             $2,417.69

JMB Medical Pty Ltd          $205.00

Master Building Solutions          $925.01

Total Outstanding Fee         $1.28

17. The amount of $8,462.70 held in in the trust account is part of an insurance payment of $10,576.95 that was made in December 2022. That payment was to rectify flooring damage caused by flooding to the subject unit. That flooring damage has not been rectified, however some of the monies have already been used towards other expenses.

18. The applicant disputes some of the liabilities as owing.

19. At the hearing, the Trustee advised that the mortgage over the unit had been in default since they took over financial management of the estate and that the arrears remain. A file note made on 7 July 2023 (exhibit 4, p 6) records that the applicant is facing legal action regarding the amounts owing for mortgage repayments and strata levies. The applicant states that she contacted the mortgagee and that they advised that the mortgagee was not pursuing the debt and that the applicant was entitled to make a hardship application in relation to her loan.

20. In relation to the ANZ credit card debt of $2,417.69, the applicant submits that it had been previously found by the Australian Prudential Regulation Authority that the amount was found not to be owing and that she had not incurred the debt. The applicant has not provided any outcome from APRA regarding the amount not being owed. There is no statement in relation to the credit card debt provided in the documents produced by the Trustee under s 58 of the ADR Act. However, despite the applicant’s assertions, I note that in the letter to her dated 11 April 2023 (exhibit 4, p 2), it states that waivers were requested for the ANZ Credit Card and the Strata levies, and neither were successful.

21. In relation to the JMB medical account, the applicant disputes owing any money to the medical centre. Again, there is no supporting evidence in the documents produced by the Trustee under s58 of the ADR Act in relation to the medical debt.

22. In the file note dated 7 July 2023 (exhibit 4, p 6), it is noted that on 11 April 2023 a meeting was scheduled by the Trustee with the applicant and her solicitor, and the applicant did not attend and sent her apologies as she was unwell. The note records:

Matters discussed include her current assets and liabilities, all actions take to date to resolve liabilities, future commitments of NSWTG to support [the applicant] to find work and actions required by [the applicant] regarding the future of her property. A copy of the letter is attached to the task. To date, NSWTG has fulfilled commitments expressed in the letter. It is noted that there has not been any confirmation that [the applicant] has secured employment, although she has requested documents to assist with applications.

23. Following a meeting with the parties, a letter dated 11 April 2023 was sent by the respondent to the applicant and the letter identifies the credit card debt as owing. I note that neither of the amounts, either for the credit card debt or the medical bill have been paid. At the hearing the respondent invited the applicant to provide the relevant evidence contesting the amounts owing for them to consider.

24. While the applicant, may have a basis for disputing the credit card and medical bill amounts, she must provide the relevant information she has to the Trustee. In my view, even if those amounts were not found to be owing, that would not significantly impact the financial position of the estate.

25. In relation to the Master Builders Solutions debt, the applicant states in her affidavit dated 8 March 2023 (exhibit 1, p 7):

Window replacement

61.   I am concerned about the installation of window costs.

62.   The windows were only being replaced due to the highway and were being paid for by the government in compensation for the increased road noise. I have been charged about $2,700 for some of the windows. I do not understand why the appears to be a cost to me.

63.   I have not been given clear information as to why the trustee is being asked to pay $27600 for a window when the only replacements were due to the road noise and provided for by the NSW Government as noise reduction measures.

64.   I am surprised the Trustee would approve a window for this cost and should dispute the cost as my understanding is the windows were being replaced free of cost to compensate for noise increase by the road changes in … that were assessed as impacting my property. I have never signed any documents relating to this $2,700.

26. The applicant submits that she never signed a contact or quote, and, on that basis, it could not be found that the amount was owing. I note that the provisions of the Home Building Act 1989 (NSW) would be unlikely to apply to any contract because the amount would be unlikely to exceed the prescribed amount of $5,000 (cl2 (3) (a) of sch 1 to the Home Building Act and cl 12 Home Building Regulations 2014).

27. Included in the documents produced under s 58 of the ADR Act, is an invoice from the builder (exhibit 3, p 90). The invoice is headed Quotation/Tax Invoice and is for an amount of $2,700.01 and states under item and description of the works that the amount is for an extra window:

As per acceptance of quotation via text msg on the 14/10/21 to Michael Comito.

28. In an email sent to the Trustee dated 23 March 2022 (exhibit 3, p 89), Gary Stevens on behalf of Master Building Solutions Pty Ltd states:

Hello and to whom it may concern,

We fitted windows at [the applicant’s] apartment on behalf of Transport NSW as part of their Noise Abatement Programme in relation to the Nowra Bridge Upgrade. [the applicant] requested an additional window which we kindly accommodated for her.

[The applicant] has since requested we pass on the invoice to the public trustee.

Please find attached tax invoice for works completed

…

29. On 22 April the Trustee informed Mr Steven’s that the applicant has minimal funds sitting in her trust account, being less than $300.00 and can’t even afford to make a payment plan (exhibit 3, p88).

30. The respondent submits that after investigating the matter, they were of the view that the amounts to the builder were owing, and the builder had a basis for enforcement and so they entered into a payment plan with the builder to repay the amount to the builder and to avoid enforcement of the amount.

31. It does not appear to be in dispute that the window works have been done. What is in dispute is whether the applicant requested the works. I find that based on the emails and invoice that it is open to the Trustee to have found that the amount is owing and to enter the payment plan to pay the outstanding invoice.

32. The applicant makes submissions that the arrears could be paid if she obtained employment. In her affidavit dated 8 March 2023 (exhibit 1), the applicant states she is fluent in Auslan and English and is a bi-lingual counsellor for the deaf and is a trauma nurse and has undertaken research and worked with autistic non-verbal children. The applicant states she has real prospects for employment, but that she requires a working with children check to work in her fields and to obtain that she needs to obtain a replacement citizenship certificate. The applicant has been trying to obtain employment for some time and part of the reason for the adjournment on 10 March 2023 was to facilitate the applicant obtaining a replacement certificate.

33. In an affidavit dated 4 September 2023 (exhibit 2), the applicant sets out the steps which she has taken to gain appointment since the adjournment on 10 March 2023. She states that she has applied for the replacement citizenship certificate, and she has been advised that the certificate is on its way. Once the citizenship certificate is received then the applicant can apply for her working with children check which will then allow her to take on clients and accept referrals to her business.

Consideration

34. I find from the evidence that the applicant remains in arrears of the mortgage and strata levies. That is regardless of the amounts owing for the credit card and medical bill (which have not been paid in any case) or even the window amount which is being paid back at only $25 a week. It remains the situation that there is not enough money to pay those arrears. I note that pharmacy accounts, energy accounts and court fines have been paid since the Trustee took over as financial manager. Pension rebates have been applied for council rates, water rates and origin energy. A successful hardship application was made to council for the rates and reduced and the rates have been paid. A minimal amount remains in the applicants bank accounts. While there is presently $8,462.70 in the trust account, that amount has arisen from the insurance payout and the property still has not been repaired and the amount is being depleted to pay other amounts owing by the applicant. I have also considered the statement of transactions for the period from 1 March 2023 to 5 September 2023 which was provided by the respondent at the hearing (exhibit 6). The applicant is receiving a pension of about $1026.50 every two weeks and no other significant income. She received an allowance of $125.00 and the rest of the amounts go toward her mortgage, utilities and arrears. The applicant simply does not have the income to meet her debts.

35. The applicant states that a consolidation of her debt would mean that she would not have to sell her house. Beyond the applicant’s assertions, there is no supporting evidence to suggest that the consolidation of the debt would mean that the applicant could better afford the mortgage and debt if her debts were consolidated.

36. In her affidavit (exhibit 1) the applicant states that rentals in the area are as much, if not more than her mortgage. In that regard the applicant has provided examples of properties and weekly rents. Those rentals range from about $300 a week (for a unit) to $750 a week (for a house). The mortgage repayments are currently about $872 a month. The property is presently valued at $300,000 and the total sum of the liabilities is $140,791.83. Even taking into consideration that a small amount of that liability may not be owing, if the property were sold for the estimated price, the sale would result in a balance of over $150,000 being available to the applicant. The sale of the property will free the applicant from her ongoing debts and arrears and the applicant would not be required to pay ongoing strata fees and maintenance of the property, including the rectification of the insurance damage.

34. The applicant submits that the Trustee could apply for a reprieve in the mortgage payments, based on a hardship application, until she obtains employment, when she will be in a better position to repay her debts. The applicant has been informing the Trustee for some time now that she would gain employment. In a letter to the Trustee dated 31 March 2022, (exhibit 3, p 86) the applicant informed the Trustee that she has been trying to obtain employment and obtain her citizenship certificate. The applicant has not since that time gained any employment of any kind. I accept that it may have taken some time for the applicant to obtain her citizenship. I note that in her affidavit (exhibit 2) the applicant states she will be able to begin to take on her own clients and being employed. However, there is no supporting evidence to indicate how much money the applicant will make or whether it will indeed put her in a better financial position to repay her debts.

35. Having considered the evidence and submissions of the parties, I find that the correct and preferable decision is that the premises be sold. I affirm the decision of the respondent.

Orders

39. Accordingly, I make the following order:

1. The decision of the respondent to sell the property is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 31 October 2023