GDO v NSW Trustee and Guardian

[2024] NSWCATAD 187

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GDO v NSW Trustee and Guardian [2024] NSWCATAD 187

Hearing dates:

17 June 2024 and 2 July 2024

Date of orders:

02 July 2024

Decision date:

10 July 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Bailey, Senior Member

Decision:

(1)   The decision of the NSW Trustee and Guardian, dated 18 October 2023, to sell the property of the protected person is affirmed.

(2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned or otherwise involved in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Catchwords:

ADMINISTRATIVE LAW — Merits Review — where NSW Trustee and Guardian decided to approve the sale of a property of a person who is the subject of a financial management order — alleged marital separation — family members allege intention of protected person to transfer ownership of property to nephew — objection to sale — paramount consideration is the welfare and interests of the person subject to the financial management order — correct and preferable decision

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Guardianship Act 1987 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

Category:

Principal judgment

Parties:

GDO (Applicant)
NSW Trustee and Guardian (First Respondent)
GKV (Second Respondent)
GKZ (Third Respondent)

Representation:

Solicitors:
Applicant (self-represented)
R Stormont (NSW Trustee and Guardian) (First Respondent)
S Lloyd Legal (Second Respondent)
Third Respondent (self-represented)

File Number(s):

2024/00016747

Publication restriction:

The publication of the name of the applicant or any other person mentioned in these Reasons for Decision is prohibited pursuant to Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

Background

1. This matter concerns an application for an administrative review of a decision of the NSW Trustee and Guardian (the first respondent), dated 18 October 2023, to sell the property of a person, who is the subject of a financial management order, made by the Guardianship Division of the NSW Civil and Administrative Tribunal, on 21 October 2022 (the protected person).

2. The applicant, GDO, is the brother of the protected person. He applied for an internal review of the first respondent’s decision, of 18 October 2023. The decision to sell the protected person’s property was affirmed by an internal review of the decision, dated 11 December 2023.

3. By way of application, received by the Tribunal on 15 January 2024, the applicant now seeks a review of the reviewable decision. The applicant submits that the first respondent’s decision is not the correct and preferable decision for reasons set out in more detail below.

4. It is that application which is to be determined at this hearing.

The Protected Person

5. The protected person is 80 years old and, at the time of the hearing, was a resident of the Jesmond Aged Care Facility in Strathfield, New South Wales. The protected person has been married to his wife (the protected person’s wife) (also known as GKV) since 1987. They do not have any children.

6. The protected person has an extended family in Australia, comprising of siblings and nieces and nephews. His brother is the applicant, and his sister has also made submissions to the Tribunal.

7. It is not contested that the protected person has been diagnosed with Parkinson’s plus syndrome and dementia. The Guardianship Division of this Tribunal found that the protected person lacks the capacity to make decisions about his lifestyle and the ability to manage his affairs.

8. A Social Work report from Canberra Hospital, dated 27 June 2022, reveals that the protected person was initially diagnosed with Parkinson’s and dementia in approximately 2019.

Orders of the Guardianship Division

Guardianship

9. On 25 July 2022, the Guardianship Division appointed a guardian for the protected person. That order was reviewed on 14 October 2022. On 21 October 2022, the Tribunal published its orders and findings arising from that review.

10. The Public Guardian was appointed for a further period of 12 months, to make decisions about the protected person’s accommodation, access to health care, medical and dental consent, and access to services. That order will be reviewed at the end of its term.

Financial management

11. On 21 October 2022, the Tribunal committed the management of the protected person’s estate to the first respondent, pursuant to the NSW Trustee and Guardian Act 2009.

12. It is not disputed that the protected person and his wife own adjoining properties in Dundas, and an additional ‘granny flat’ annexed to one of those properties. For ease of reference, in these Reasons for Decision, and in accordance with the order that the identity of the parties be suppressed, I will refer each property simply by a number (“number 41”, “number 39A” and “number 39”), rather than by the full address.

13. The parties agree that the protected person’s wife still lives in number 39.

Adjournment

14. The hearing was initially listed on 17 June 2024. On that date, the applicant was given leave to attend by video. He sought permission to do, so based on medical grounds. However, the audio quality of the video connection was so poor that it was almost impossible for the parties and the Tribunal to effectively communicate with each other. There was also a considerable delay in facilitating the attendance of the applicant on that occasion.

15. Furthermore, it was apparent that the first respondent’s legal representative, Ms Stormont, had not received a large bundle of documents submitted, late, by the applicant. The Tribunal granted a short adjournment to allow her to review those documents, so that she could ascertain whether the first respondent wished to make any application arising from the fact that the material had not previously been reviewed. Having reviewed the material, Ms Stormont told the Tribunal that she did not wish to seek an adjournment.

16. However, the practical difficulties experienced in terms of communicating with the applicant made it impossible to continue the hearing.

17. Pursuant to Section 51 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the Tribunal may adjourn proceedings. When deciding whether to do so, the Tribunal must consider the guiding principle of the CAT Act, which is to provide the just, quick and cheap resolution of the issues in the proceedings (subsection 36(1)).

18. The Tribunal must also consider the principles in Section 4 of the Guardianship Act and afford procedural fairness to the parties. This means that the Tribunal is required to take such steps as may be reasonably practicable to ensure that the parties understand the nature of the proceedings and have a reasonable opportunity to be heard or otherwise have their submissions considered (Section 38(5) CAT Act).

19. The applicant told the Tribunal that, if the hearing were to be reconvened on a later date, provided that the hearing were to commence at 11:00 am, he would make his best endeavours to attend in person.

20. The first respondent and the representative of the protected person’s wife agreed that this would be beneficial to all parties. I was satisfied that it would not be possible to continue the hearing on 17 June 2024, because of the technical difficulties experienced. I was also satisfied that it would be in the interests of fairness for all parties to have the opportunity to participate fully and that it would be beneficial for the applicant to attend in person.

21. I, therefore, adjourned the hearing, on a part heard basis, until 2 July 2024.

Resumed Hearing

22. The Hearing resumed on 2 July 2024. The applicant and the protected person’s sister attended by AVL. Ms Stormont, the protected person’s wife and her legal representative appeared in person.

23. On the day prior to the resumed hearing, the applicant submitted a further voluminous set of submissions and attachments. Despite the late service, there was no objection to those documents being accepted by the Tribunal. Those submissions were, for the most part, a duplication or re-statement of the applicant’s previous submissions.

Legal Framework

24. The Tribunal has jurisdiction to review decisions, by virtue of Section 30 of the CAT Act and Sections 6, 7 and 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

25. Section 6 of the ADR Act defines “decision” to include any of the following:

(a) making, suspending, revoking or refusing to make an order or determination;

…

(g) doing or refusing to do any other act or thing.

26. Section 62 of the NSW Trustee and Guardianship Act 2009 (NSW) (TAG Act) provides that an affected person may apply to the Tribunal for an administrative review under the ADR Act of a decision of the first respondent in this case that:

1. is made in connection with the exercise of the first respondent’s function under this Division, and

2. is of a class of decision prescribed by the regulation for the purposes of this section.

27. It is not contested that the applicant is an affected person, nor that the decisions made by the first respondent in connection with its functions in the management of the estates of a protected person are reviewable by the Tribunal.

28. The issue for the Tribunal is whether the decision to sell the protected person’s property is the “correct and preferable decision” (ADR Act Section 63).

29. In order to decide whether that is the case, the Tribunal must observe the principle in Section 39 of the NSW TAG Act which includes the provision that the welfare and interests of the protected person should be given paramount consideration.

Documents and exhibits

30. The applicant tendered a bundle of documents of approximately 60 pages, which was received by Tribunal on 30 May 2024. That bundle was admitted without objection and marked as Exhibit A.

31. The Tribunal also considered submissions of the applicant contained in a bundle submitted to the Tribunal on 30 May 2024, a submission of the protected person’s sister, received by the Tribunal on 5 June 2024, the documents submitted with the applicant’s application, and a bundle of documents submitted by the applicant on 17 June 2024.

32. The first respondent tendered a bundle of documents filed pursuant to the Section 55 of the ADR Act (Section 55 bundle).

33. There was no objection to the Tribunal considering that material.

Agreed Facts

34. In separate proceedings, the Tribunal has previously determined that the protected person is an elderly man living with Parkinson’s plus syndrome and dementia.

35. There is no evidence to persuade the Tribunal that it should make any different finding in relation to that issue at this time.

36. It is not disputed that the protected person has lived at Jesmond Aged Care Facility in Strathfield. It is also not disputed that the protected person and his wife owned the properties known as numbers 39, 39A, and 41 as joint tenants, nor that the protected person’s wife continues to occupy number 39.

Reviewable decision

37. On 18 October 2023, the first respondent decided that the property known as number 41 must be sold, to fund the protected person’s accommodation and lifestyle. The first respondent had previously issued a statement of advice to the protected person, on 11 January 2022, foreshadowing the first respondent’s decision to sell number 41.

38. The first respondent advised the protected person that this was necessary, because he was required to pay a Refundable Accommodation Deposit (RAD) of $388,000.00 or the equivalent Daily Accommodation Payment (DAP) of $67.08 per day ($24,484.00 per annum), which was calculated by applying the maximum permissible interest rate, of 6.31%, in addition to basic daily care fees of $56.87 per day ($20,757.00 per annum) and an estimated means tested care fee of $2.40 per day ($876.00 per annum).

39. The first respondent reported that the protected person’s income was comprised of a Commonwealth superannuation pension of $932.33, per fortnight ($24,240.00 per annum), and a share of a rental income, of $375.00 per week ($19,500.00 per annum), from two properties.

40. Number 39 has an extension known as 39A (on the same title). That is also leased, as a one-bedroom unit, for $220.00 per week.

41. The protected person and his wife own all properties as joint tenants.

42. The first respondent found that, based on his current expenditure, the protected person did not have funds to meet his financial obligations and outgoings.

43. Therefore, it recommended that the protected person’s share of the investment property, number 41, be sold immediately. Once the property was sold, it was recommended that the mortgage liabilities be paid and the protected person’s share of the sale proceeds be received, capital gains tax be paid, and a part payment be made towards the RAD to reduce the DAP. It was also recommended that the protected person continue to receive 50% of the rental income from number 39A.

Analysis of the Applicant’s Submissions

44. I considered the submissions of the applicant which were contained in several documents. The first being a document titled “Appeal” and annexed as attachment 3 to his application. The second of these documents is titled “Submissions on behalf of (the applicant)” and was received by the Tribunal on 30 May 2024. The most recent submission was received by the Tribunal on 17 June 2024.

45. The applicant submitted that the first respondent’s decision is “grossly unfair” and will disadvantage the protected person.

46. The applicant also submitted that the decision of the first respondent will financially disadvantage the protected person and benefit his wife. He argued that the first respondent may be acting beyond its authority.

47. The applicant submitted that the first respondent “is making a decision which is virtually a partial property settlement or that is affecting a property settlement action that could be brought in the Family Court at a future date for property settlement”. He submitted that this may be illegal, because “it impinges on the authority of the Family Court”.

48. Another argument advanced by the applicant is the allegation that the first respondent has undervalued the property. A seemingly contradictory submission is that the property is non-compliant with building regulations and may, therefore, not be easily sold.

49. Furthermore, the applicant submitted that the first respondent should have considered and given effect to the protected person’s alleged ‘wish and intention’ to transfer his share of the property settlement to his nephew.

50. Finally, the applicant states that the protected person’s share of the proceeds of sale will only be sufficient to fund seven years of basic care.

Were the protected person and his wife separated?

51. Underpinning the applicant’s submissions is the assertion that the protected person and his wife were separated.

52. This issue was considered by the Guardianship Division before it made its orders on 21 October 2022. The Reasons for Decision of the Guardianship Division on that date were tendered in evidence. In summary, the applicant submits that the married couple had decided to separate and had come to an agreement about the separation of their property.

53. It is not necessary for me to outline, in precise detail, the submissions made by interested parties about whether the protected person and his wife are separated. What follows is a summary of those submissions to the extent that they are relevant.

54. In summary, the applicant and the protected person’s sister submitted that the protected person and his wife came to an agreement that the protected person’s wife should be the sole owner of number 39, and that he would be the sole owner of number 41. The applicant asserted that, in order to vary the titles to the property, both parties agreed to contribute to having the other person’s name removed from the title. The applicant also submitted, that the protected person had indicated his desire and intention for his property to be transferred to his nephew. This never eventuated.

55. On the other hand, the protected person’s wife denies that the couple were separated or intended to end their marriage. However, she agreed that discussions took place about the separation of the properties. She maintained that this happened after he was diagnosed with Parkinson’s plus syndrome and dementia, and because she was advised that it would be financially sensible for both of them.

56. The Guardianship Division of the Tribunal found that marital separation and divorce were never pursued by the protected person or his wife. However, there may have been an agreement to separate their assets, in view of their declining health. Proposed property settlement documents were drafted but not executed.

57. The Guardianship Division also found that there were irreconcilable differences of opinion between the protected person’s family of origin and his wife, in relation to where he should live and the way in which his affairs should be managed.

58. The Guardianship Division found that the “separation” appeared to be a matter of practicality, rather than a breakdown of a marital relationship and that it was not analogous to an intention to separate from the marriage. There is no reliable evidence available to me which would cause me to conclude differently.

59. The first respondent submitted, and I agree, that the applicant had sufficient opportunity to produce information to the Tribunal, by 4 June 2024 (in accordance with the Tribunal’s directions), to support his assertion that there are legal documents to corroborate that the protected person and his wife are legally separated. He has not done so.

60. To the extent that there is a difference of opinion about whether was an intention that the protected person and his wife should end their marriage, I prefer the evidence of the protected person’s wife. To arrive at this conclusion, I considered the evidence contained in the Social Work report from Canberra Hospital, dated 27 June 2022, which confirms that the protected person was diagnosed with dementia in approximately 2019. There is no evidence to contradict that. This means that any discussions about separation and the separation of assets occurred when the protected person had dementia. I find such evidence unreliable for that reason.

61. Pursuant to Section 16(1)(g) of the NSW Trustee and Guardian Act, the first respondent has the power to sell real property belonging to a person under financial management. I reject the applicant’s submission that the first respondent is attempting to force a property settlement between the protected person and his wife. This is because I prefer the first respondent’s submissions, which make it clear that the purpose of the proposed sale of the property is to reduce the protected person’s liabilities and ensure that he has sufficient cash flow to meet his needs.

62. The information set out in the first respondent’s statement of advice to the protected person, on 11 January 2022, set out the basis for that decision. The applicant has not provided evidence, as distinct from opinion, which would cause me to question the calculations contained in that correspondence. Therefore, I reject the submission that the first respondent is acting beyond its authority.

Will the decision disadvantage the protected person?

63. The applicant submitted that the first respondent’s decision to sell the protected person’s property will cause disadvantage to the protected person, and that the ‘statement of advice’ is flawed and contains “major inexcusable errors”. The alleged errors include failing to consider that only the protected person’s share of the mortgage should have been identified as his liability and miscalculating the protected person’s assets.

63. The applicant also submitted that the protected person’s wife would receive a “windfall”, if she were to receive half of the proceeds of the intended sale, and that the first respondent failed to consider that the protected person’s wife should contribute 50% of market rent to occupy number 39.

64. He complains that the first respondent did not consider alternatives for raising income, such as obtaining a further loan, such as a home equity loan, which, he submitted can be obtained from Centrelink.

65. The applicant’s submission also claims that the proposal to sell number 41 is “a pipe dream” because the duplex “may not comply with the current rules” in relation to fire and acoustic separation, and expressed the opinion that the net gain to the protected person would not be more than $50,000.00.

66. The applicant provided valuation summaries of comparable properties and of the property known as number 41, dated 12 March 2021. The valuation summaries pre-dated the reviewable decision. They are, therefore, not a reliable estimate of the current value of the property, and I attribute little weight to that evidence, for that reason.

67. The applicant also tendered screenshots of internet searches which estimate the current market price for the properties. I do not consider these to be reliable valuations because they are not the detailed valuation of a licensed valuer. The basis upon which the valuation stated on those documents is untested.

68. The first respondent submitted that the protected person and his wife had been married for more than 35 years and had acquired marital assets during this time. Furthermore, the first respondent submitted that there is a significant level of conflict in the protected person’s family, including what were described as “serious and unproven allegations made by the protected person’s family against the protected person’s wife”.

69. The first respondent also asked the Tribunal to consider that the applicant, the protected person’s sister, and their extended families would potentially benefit, if the property were retained, which gives rise to a conflict of interest.

70. The applicant’s submissions also contain several serious allegations against the protected person’s wife. I note that the allegations are disputed and unsubstantiated. I have read those submissions but do not consider that they require determination by the Tribunal.

71. I am not satisfied that the decision of the first respondent is intended to benefit the protected person’s wife. There is no evidence that she will obtain an undue benefit from the decision to sell property, which she jointly owns, when half of the proceeds of the sale will be utilised to pay for the protected person’s expenses. She is a joint tenant and would be expected to inherit the property in its entirety, if she were to survive the protected person. Furthermore, she is legally entitled to a share of the proceeds of sale.

72. I do not accept the submission that the protected person’s wife should be expected to pay rent to occupy the marital home, a property she owns as joint tenant.

73. The first respondent submitted that a Home Equity Loan would not raise sufficient funds to prevent the Commonwealth bank from foreclosing on the mortgage. In any event, I do consider that it would be the correct and preferable decision to subject the protected person to additional debt by seeking a further loan to pay his current expenses.

74. Therefore, I reject the submission that the reviewable decision will disadvantage the protected person and unfairly advantage his wife.

The protected person’s wish and intention

76. The applicant submitted that the reviewable decision is contrary to the protected person’s wish and intention.

77. He asserts that the protected person intended to separate the properties so that 50% of the total value of the property would be given to each of the protected person and his wife. The applicant then asserted that the protected person wanted his share of the value of the property to be transferred to his niece and nephew, although the niece refused the gift.

78. He set out a history of correspondence with Solicitors and other authorities in relation to these proposed transactions. The submissions of the applicant’s (and the protected person’s) sister, received on 5 June 2024, also identify that her major objection to the decision under review is the fact that the protected person intended to transfer his property to her son.

79. A discussion with Solicitors to change ownership of number 41 to the protected person’s nephew was said to have occurred in the context of the nephew having contributed approximately $15,000.00 towards the mortgage, during Covid. The property was, at that time, deemed to be valued at more than $600,000.00.

80. There is no dispute that these discussions occurred after the protected person was diagnosed with Parkinson’s plus syndrome and dementia. This means that I cannot discern the protected person’s wishes at a time when he had full capacity to express his preference. In any event, none of these transactions occurred.

81. The object of the Guardianship Act 1987 is that the welfare and interests of the protected person should be given paramount consideration. His stated wishes and intentions are one relevant consideration. In this case, I cannot form a view about what the intentions of the protected person were, at the time when he still had full cognitive capacity. The evidence about that is hearsay, at best, and has little probative weight.

82. The benefit that the protected person may derive from his estate, during his lifetime, is of paramount importance to this Tribunal. The interest that any other party may have in the eventual distribution of the protected person’s estate is not a relevant consideration. There is no reliable evidence to satisfy me that the interests of ensuring that the protected person’s financial needs can be met, are outweighed by the need to give effect to his expressed intentions about the distribution of his estate, during his lifetime.

83. Therefore, the question of whether the protected person may have indicated a desire to benefit his nephew, is not something which would result in a finding that the reviewable decision is not the correct and preferable one.

84. The first respondent submitted that the applicant had not provided any legal documents to indicate that the protected person intended to transfer his property to any relative. However, even if it was the protected person’s intention to transfer his interests in a property to another family member, the first respondent submits that his financial situation is now such that he cannot afford to do so.

85. Ms Stormont submitted that the Commonwealth Bank has already indicated that it will have to conduct a mortgagee sale, because neither the protected person nor his wife can afford to service their mortgage. Ms Lloyd, who represented the protected person’s wife, corroborated this fact. I therefore accept this to be true.

86. Even if there had been evidence that the protected person had taken steps, at a time when he had capacity to do so, to transfer a share of his property to his nephew, I am satisfied that his situation is now such that his current needs are more important than any desire to give such intention effect.

87. I reject this aspect of the applicant’s submissions for that reason.

Does the property need to be sold?

88. The applicant disputes that the protected person’s current income in insufficient to meet his needs. The applicant alleged that the first respondent was “haphazard and disorganised” in its calculations. He expressed his opinion that the property has been inaccurately valued. However, he did not provide evidence, as opposed to opinion, to contradict the first respondent’s calculations that were set out in the statement of advice.

89. He also submitted that the proceeds of sale would be insufficient to meet the protected person’s needs for more than seven years.

90. The first respondent issued a statement of advice to the protected person on 11 January 2022 to advise him of the decision to sell number 41. The first respondent advised the protected person that this was necessary, because he was required to pay a Refundable Accommodation Deposit (RAD) of $388,000.00, or the equivalent Daily Accommodation Payment (DAP) of $67.08 per day ($24,484.00 per annum). The DAP is calculated in accordance with the maximum permissible interest rate of 6.31%.

91. The protected person was advised that he also had to pay basic daily care fees of $56.87 per day ($20,757.00 per annum), and an estimated means tested care fee of $2.40 per day ($876.00 per annum).

92. The first respondent found that the protected person’s income was limited to a Commonwealth superannuation pension of $932.33 per fortnight ($24,240.00 per annum), and his share of rental income of $375.00 per week ($19,500.00 per annum) from two properties.

93. The protected person and his wife own all properties as joint tenants. Number 39 has an extension known as number 39A (on the same title). That is leased, as a one-bedroom unit, for $220.00 per week. The protected person’s income is $43,740.00 per annum.

94. The first respondent found that based on his current expenditure, the protected person did not have funds to meet his financial obligations and outgoings. Therefore, it recommended that the protected person’s share of the investment property, number 41, be sold immediately.

95. Once the property was sold, it was proposed that the mortgage and capital gains tax be paid, and the protected person’s share of the sale proceeds be received, and a part payment be made towards the RAD, to reduce the DAP. It was also recommended that the protected person continue to receive 50% of the rental income from number 39A.

96. The first respondent calculated that the protected person has total assets of approximately $926,000.00 and liabilities, in the form of a CBA mortgage over number 41, in the sum of $328,299.00, in addition to his obligation to pay the RAD of $388,000.00.

97. This means that the protected person’s current expenses are $83,417.00, including his mortgage repayments and DAP. This results in a cash flow shortfall of approximately $40,000.00 per annum. The proceeds of selling the property would provide part payment for the RAD and other debts that are currently accruing, including the mortgage over number 41.

98. In its written submissions received by the Tribunal, dated 4 June 2024, the first respondent provided additional information. The submissions state that the first respondent does not hold any monies for the protected person. His liabilities are extensive and include a negative trust account balance of $3,173.44. His fortnightly pension is $1,017.72 and his accommodation fees are $825.72 a fortnight to Jesmond Aged Care.

99. He continues to be responsible for his share of ongoing property expenses for numbers 39, 39A and 41. These include council rates and insurance.

100. He also remains liable for the mortgage on the property. He can no longer afford the mortgage repayments. Because the protected person’s (and his wife’s) financial position is such that they cannot afford to meet their ongoing mortgage repayments, even if the applicant and the protected person’s family do not consider it is an optimal time to sell, the bank will take legal action to force the sale of the property. The first respondent submitted that the Commonwealth Bank will not take steps to ensure that the best sale price is achieved.

101. Ms Stormont and Ms Lloyd confirmed that the bank has already indicated its intention to sell the property and has agreed to defer such sale, only pending the outcome of this hearing.

102. The first respondent submitted that the protected person’s estate is vulnerable to litigation, whilst it accrues liabilities with no means of payment other than the sale of the property. Furthermore, the first respondent submitted that the protected person’s accommodation may be at risk, if he continues to accrue fee arrears at the aged care facility.

103. I prefer the evidence of the first respondent in relation to this issue, because it is corroborated by the protected person’s wife, and because only the first respondent, in its capacity as financial manager, has legal authority to access the financial records of the protected person, in order to form a conclusion about his financial circumstances. I am satisfied that the property must be sold to fund the protected person’s needs.

Correct and Preferable Decision

104. The applicant submitted that the preferable decision would be to sell 39 (and presumably 39A) and number 41. He said that this would result in the mortgage being paid and the protected person and his wife each receiving approximately $1,157,000. He submitted that this would be sufficient for the protected person’s wife to purchase a new house.

105. I do not consider that to be a persuasive argument. The protected person’s wife is a joint tenant and has occupied number 39 for many years. She is also an elderly citizen. Number 39 is the marital home. She has the right to occupy it. In circumstances where there is a clear and achievable alternative to the protected person’s wife having to leave her own home, I cannot be satisfied that it would be preferable, to adopt the option which would require her to find alternative accommodation.

106. The object of the Guardianship Act 1987 is that the welfare and interests of the protected person should be given paramount consideration. It is not contrary to his best interests that his wife of 37 years should be entitled to remain living in the home they had together. However, any further delay in the management of the protected person’s debts may result in a financially catastrophic outcome for both of them.

107. I prefer the evidence of the first respondent to that of the applicant. This is because the first respondent has conducted a comprehensive investigation and review of the protected person’s circumstances. The applicant has failed to successfully rebut that evidence.

108. I am satisfied, on the basis of that evidence, that the protected person’s financial situation is such that he cannot pay for his liabilities and lifestyle. This exposes him to the risk of litigation and reputational damage. It also places his accommodation at risk.

109. I also accept the first respondent’s evidence that the protected person does not have sufficient funds for his basic daily needs. This is an untenable situation that requires urgent intervention.

110. I am satisfied that the correct and preferable decision is to sell the property.

Orders

1. The decision of the NSW Trustee and Guardian, dated 18 October 2023, to sell the property of the protected person is affirmed.

2. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned or otherwise involved in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

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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: 10 July 2024