FYV v NSW Trustee and Guardian - [2024] NSWCATAD 54

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Protected Estates Act 1983 (NSW) (Repealed)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
WL v NSW Trustee and Guardian [2011] NSWADTAP 22
YFM v Public Guardian [2023] NSWCATAP 266

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?

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWCATAD 54
Decision Date: 29 February 2024

CaseChat Overview and Summary

The case of FYV v NSW Trustee and Guardian involved the appellant, FYV, challenging a decision made by the respondent, NSW Trustee and Guardian, regarding the management of the estate of an individual with a disability. The central issue at dispute was the decision of the Trustee to sell the former family residence, a matter that elicited objections from certain family members who proposed a "reverse-mortgage" arrangement instead. The appellant argued that the Trustee's decision contravened the principle of preservation of the estate and failed to adequately consider the protected person’s welfare and interests, as mandated by the NSW Trustee and Guardian Act.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 WL v NSW Trustee and Guardian [2011] NSWADTAP 22 YFM v Public Guardian [2023] NSWCATAP 266
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.