Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: FYV v NSW Trustee and Guardian [2024] NSWCATAD 54 Hearing dates: 1 December 2023 Date of orders: 29 February 2024 Decision date: 29 February 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: J S Currie, Senior Member Decision: The decision of NSW Trustee and Guardian which is under review is set aside and the matter is remitted for reconsideration by NSW Trustee and Guardian in accordance with the recommendations made at the conclusion of the reasons for decision.
Catchwords: ADMINISTRATIVE LAW - merits review - NSW Trustee and Guardian - management of estate of person with a disability - Trustee’s decision to sell former family residence - objection by some family members - proposal for “reverse-mortgage” arrangement - principle of preservation of estate - Trustee’s duty to act in protected person’s welfare and interests and related principles including views of the person: NSW Trustee and Guardian Act, section 39
Legislation Cited: Administrative Decisions Review Act 1997 (NSW), ss 58, 63
Guardianship Act 1987 (NSW), s 4
NSW Trustee and Guardian Act 2009 (NSW), s 5, Chapter 4, ss 38, 39
Protected Estates Act 1983 (NSW) (Repealed)
Cases Cited: Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60
DYH v Public Guardian [2021] NSWCATAD 136
Protective Commissioner v D & Others [2004] NSWCA 216
Category: Principal judgment Parties: FYV (Applicant)
NSW Trustee and Guardian (First Respondent)
GBZ (Second Respondent)
GCA (Third Respondent)
GCH (Fourth Respondent)Representation: Applicant (self-represented)
Crown Solicitor (First Respondent)
Second Respondent (self-represented)
Third Respondent (self-represented)
Fourth Respondent (self-represented)
File Number(s): 2023/00281493 Publication restriction: The disclosure of the names of the person with a disability who is the subject of these proceedings, the Applicant, the Second Respondent, the Third Respondent and the Fourth Respondent is prohibited under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: The name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.
reasons for decision
What is this matter about?
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I shall refer to the person whose managed estate is under consideration in these proceedings as “Giulia” and more formally, where appropriate, as “the subject person”. Giulia is 93 years of age and is reported to have dementia. She is of Italian culture and heritage and now lives in residential care at a facility in Western Sydney. Her estate is being managed by NSW Trustee and Guardian (NSW Trustee or the Trustee) pursuant to orders of the Guardianship Division of this Tribunal made on 12 January 2023.
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The decision under review in these proceedings is a decision of great significance to Giulia. It is NSW Trustee’s decision of 7 June 2023 as manager of Giulia’s estate to sell the property which she regards as her family home. It is a residence in Croydon in inner Western…
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- Case
- [2024] NSWCATAD 54
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the Trustee's decision to sell the residence was lawful and whether the principle of preservation of the estate had been correctly applied. Specifically, the court needed to assess if the Trustee had adequately considered the protected person’s views and interests, and if the decision aligned with the statutory duty to act in the welfare and interests of the protected person. The court also had to examine whether the Trustee had properly balanced the principle of preservation with other relevant considerations.
In reaching its decision, the court examined the statutory provisions and case law concerning the duties of a Trustee under the NSW Trustee and Guardian Act. The court found that the Trustee had not sufficiently considered the protected person’s views and had not adequately balanced the principle of preservation with the need to act in the protected person’s welfare and interests. The court held that the Trustee's decision to sell the residence was therefore flawed and set aside the decision. The matter was remitted back to the Trustee for reconsideration in light of the court’s recommendations.
Orders
Orders of the court
The decision of NSW Trustee and Guardian which is under review is set aside and the matter is remitted for reconsideration by NSW Trustee and Guardian in accordance with the recommendations made at the conclusion of the reasons for decision.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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