FZM - [2020] NSWCATGD 79

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FZM [2020] NSWCATGD 79
Hearing dates: 20 November 2020
Date of orders: 20 November 2020
Decision date: 20 November 2020
Jurisdiction: Guardianship Division
Before: G Bartley, Senior Member (Legal)
S Flanagan, Senior Member (Professional)
Dr M Spencer, General Member (Community)
Decision:
HPM is joined as a party.
1. The estate of FZM is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of FZM is committed to the NSW Trustee and Guardian.

Catchwords:
FINANCIAL MANAGEMENT – application for a financial management order – no medical evidence on ability to manage affairs – victim of online scams – loss of significant sums of money – risk of further financial exploitation – NSW Trustee and Guardian appointed
INTERLOCUTORY – joinder of party – party has genuine concern for subject person – applicant supports joinder – father joined

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), s 44(1), cl 7(1) of Sch 6
Guardianship Act 1987 (NSW), ss 4, 25E, 25G, 25M

Cases Cited:
CJ v AKJ [2015] NSWSC 498
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106

Texts Cited:
Nil

Category: Principal judgment
Parties:
001: Financial Management Application
FZM (the person)
SBQ (applicant)
HPM (joined party)
NSW Trustee and Guardian
Representation: Nil

File Number(s): NCAT 2020/00273662
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

What the Tribunal decided

HPM was joined as a party to the application.
The Tribunal committed FZM’s estate to the management of the NSW Trustee and Guardian.

Background

FZM is a 42-year-old woman who lives with her brother, Mr Z, in a home they inherited from their mother in the Upper North Shore of Sydney. Their father, HPM, and cousin, SBQ, live in Spain.
On 21 September 2020, SBQ lodged an application for financial management for FZM. He said FZM has been the victim of an online scam, which has resulted in her transferring most of her money to a fraudulent Swiss bank account. SBQ said his cousin is planning to start selling her properties.
On 8 November 2020, HPM applied to be joined as a party to the proceedings.

The hearing

At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
The hearing was conducted in Sydney. Unfortunately, due to the COVID-19 pandemic a face-to-face hearing was not possible. FZM, Mr Z and HPM participated in the hearing by telephone. SBQ attended by video conference. The Tribunal was assisted by a telephone interpreter in the Spanish language for SBQ.

Application by HPM to be…

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.

Continue reading FZM

Details

AGLC: FZM [2020] NSWCATGD 79
Case: [2020] NSWCATGD 79
Decision Date: 20 November 2020

CaseChat Overview and Summary

The case involved an application for a financial management order in relation to an individual, referred to as FZM, who had fallen victim to online scams and subsequently lost significant sums of money. The application was made by a party who had a genuine concern for FZM, and the father of FZM, who was joined as a party, supported the application. The NSW Trustee and Guardian was appointed to manage FZM's estate.

The primary legal issues before the court were whether there was sufficient evidence to support the granting of a financial management order and whether the NSW Trustee and Guardian should be appointed to manage FZM's estate. The court had to consider the risk of further financial exploitation and the lack of medical evidence regarding FZM's ability to manage their affairs.

In determining the application, the court found that there was no medical evidence to assess FZM's capacity to manage their affairs. However, given the circumstances of the case, including the significant losses due to online scams and the potential for further exploitation, the court was satisfied that there was a compelling need for the appointment of a financial manager. The court found that the NSW Trustee and Guardian was the appropriate body to manage FZM's estate and granted the application accordingly.

The orders made by the court included the joinder of HPM as a party to the proceedings and the commitment of FZM's estate to the management of the NSW Trustee and Guardian under the NSW Trustee and Guardian Act 2009. The court's decision provided a framework for the protection of FZM's financial interests and mitigated the risk of further exploitation.

Orders

Orders of the court

HPM is joined as a party.

1. The estate of FZM is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. The management of the estate of FZM is committed to the NSW Trustee and Guardian.

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:	FZM [2020] NSWCATGD 79
Hearing dates:	20 November 2020
Date of orders:	20 November 2020
Decision date:	20 November 2020
Jurisdiction:	Guardianship Division
Before:	G Bartley, Senior Member (Legal) S Flanagan, Senior Member (Professional) Dr M Spencer, General Member (Community)
Decision:	HPM is joined as a party. 1. The estate of FZM is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of FZM is committed to the NSW Trustee and Guardian.
Catchwords:	FINANCIAL MANAGEMENT – application for a financial management order – no medical evidence on ability to manage affairs – victim of online scams – loss of significant sums of money – risk of further financial exploitation – NSW Trustee and Guardian appointed INTERLOCUTORY – joinder of party – party has genuine concern for subject person – applicant supports joinder – father joined
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 44(1), cl 7(1) of Sch 6 Guardianship Act 1987 (NSW), ss 4, 25E, 25G, 25M
Cases Cited:	CJ v AKJ [2015] NSWSC 498 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Financial Management Application FZM (the person) SBQ (applicant) HPM (joined party) NSW Trustee and Guardian
Representation:	Nil
File Number(s):	NCAT 2020/00273662
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.