GGN v NSW Trustee and Guardian

[2024] NSWCATAD 277

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GGN v NSW Trustee and Guardian [2024] NSWCATAD 277

Hearing dates:

9 August 2024

Date of orders:

19 September 2024

Decision date:

19 September 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Bailey, Senior Member

Decision:

The decision of the NSW Trustee and Guardian dated 9 February 2024 is affirmed.

Catchwords:

Administrative Law

Merits Review - where NSW Trustee and Guardian decided to approve the sale of two properties of a person who is the subject of a financial management order- two properties- separate family members are named as beneficiaries of a property each in the protected person’s Will- protected person has insufficient income to pay her bills- will and preference of the protected person- nephew occupies one of the properties - 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

Guardianship Act 1987 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

Powers of Attorney Act

Cases Cited:

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; [1979] FCA 39

McDonald v Guardianship and Administration Board [1993] Vic Rp 36; [1993] 1 VR 521

YG and GG v Minister for Community Services [2002] NSWCA 247

Category:

Principal judgment

Parties:

GGN (First Applicant)
GHA (Second Applicant)
NSW Trustee and Guardian (First Respondent)
GHJ (Second Respondent)

Representation:

Counsel:
R D Turnbull (First and Second Applicant)
R Stormont (First Respondent)

Solicitors:
Skinner & Associates (First and Second Applicant)
McPherson Legal (Second Respondent)

File Number(s):

2024/00092672

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 respondent), dated 9 February 2024, to sell the two properties of an elderly woman, who is the subject of a financial management order, made by the Guardianship Division of the NSW Civil and Administrative Tribunal, on 25 January 2022 (the protected person).

2. To comply with the order Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013, restricting the publication of the name of the parties, pseudonyms have been attributed to the parties in this matter.

3. The applicant, GGN, is the nephew of the protected person. The second applicant, GHA, is his wife.

4. The second respondent, GHJ, is the protected person’s niece, and the cousin of the applicant.

5. The two properties will be referred to in these Reasons for Decision as the “KS” and the “TT” properties, for ease of differentiation, whilst protecting the anonymity of the parties.

6. The applicants live in the TT property.

7. The first respondent, as financial manager for the protected person, made a decision, on 20 November 2023, to sell the KS property. The second respondent sought an internal review of that decision.

8. On 9 February 2024, the first respondent, having conducted the internal review, varied its previous decision and decided to sell both the KS and TT properties. This is the reviewable decision.

9. By way of application, received by the Tribunal on 8 March 2024, the applicants seek a review of the reviewable decision. The applicants submit that the respondent’s decision is not the correct and preferable decision for reasons set out in more detail below.

10. It is that application which is to be determined.

The Protected Person

11. The protected person is 93 years old and, at the time of the hearing, was a resident of an aged care facility in regional New South Wales. She does not have any children of her own. She is the sole owner of the KS and TT properties.

12. The protected person has a nephew, the applicant, and a niece, the second respondent. They both claim to have a good relationship with their Aunt.

13. On 14 November 2018, the protected person appointed the applicant and the second respondent with her enduring power of attorney. On the same day, she appointed the second respondent and the second applicant as her enduring guardians.

14. It is not contested that the protected person was diagnosed with moderate to severe mixed dementia, of Alzheimer’s and vascular aetiology, in 2020.

15. She has been the subject of orders made by the Guardianship Division of the Tribunal.

Orders of the Guardianship Division

Financial management

16. On 28 January 2022, the Tribunal reviewed the operation and effect of the enduring power of attorney made by the protected person on 14 November 2018.

17. As a consequence of reviewing the operation and effect of the enduring power of attorney, the Tribunal decided, pursuant to s36(2) of the Powers of Attorney Act, not to make an order, and to treat the application for review as an application for the appointment of a financial manager.

18. The Tribunal accepted that the power of attorney was unworkable, because the relationship between the attorneys had broken down to the extent that they were unable to cooperate.

19. The Tribunal also noted that the applicant had moved into the protected person’s property, in 2021, after she was deemed incapable of agreeing to it.

20. The Tribunal committed the management of the protected person’s estate to the NSW Trustee and Guardian (the respondent), pursuant to the NSW Trustee and Guardian Act 2009, having made findings that she lacks the ability to manage her own affairs, that there was a need for an order and that it was in her best interests.

The Hearing

21. The Hearing occurred on 9 August 2024. The applicants and their representatives attended in person. Ms Stormont, for the first respondent, also appeared in person. The second respondent and her legal representative appeared by AVL.

Legal Framework

22. 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 (ADR Act).

23. 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.”

24. 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 respondent in this case that:

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

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

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

26. Section 63(1) of the ADR Act prescribes the role of the Tribunal in determining an application such as this. Its role is:

“... to decide what the correct and preferabledecision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.”

27. Section 63(2) allows the Tribunal, for the purpose of making its decision, to exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

28. The Tribunal must conduct this review without any presumption as to the correctness of the decision: McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] 1 VR 521 at 529. To decide what the correct and preferable decision is, the Tribunal must consider the material that is available at this hearing. That may include material that postdates the reviewable decision: YG and GG v Minister for Community Services [2002] NSWCA 247 (“YG”) at [25]; Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60 (“Drake”) at 77; [1979] FCA 39.

29. It is also clear that the Tribunal’s determination must be carried out at the time the relevant issues come to be decided by it, and not as at the time at which that decision under review itself was made: Drake at 68 (Bowen CJ and Deane J), and numerous subsequent authorities.

30. Section 63(3) of the ADR Act sets out the range of possible outcomes of an administrative review by this Tribunal. Having determined an application, the Tribunal may decide:

1. to affirm the decision; or

2. to vary it; or

3. to set the decision aside and make a decision in substitution for it; or

4. to set the decision aside and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations made by the Tribunal.

31. Additionally, by operation of s 65(1) of the ADR Act, at any stage of proceedings the Tribunal may decide to remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

32. The Tribunal must also observe the principle in Section 39 of the NSW Trustee and Guardian Act, which includes the provision that the welfare and interests of the protected person should be given paramount consideration.

Documents and exhibits

33. The applicants provided a “Court Book”, comprised of 598 pages. Any reference to page numbers in these Reasons for Decision is a reference to the page number in the “Court Book”, unless otherwise stated.

34. The applicants tendered the following:

1. Affidavit of GGN, dated 17 June 2024 (Exhibit A, page 26)

2. Affidavit of GGN, dated 2 August 2024 (Exhibit B, page 222)

3. Affidavit of the second applicant, dated 18 June 204 (Exhibit C, page 201)

4. Affidavit of the second applicant, dated 2 August 2024 (Exhibit D, page 226)

35. Each of the affidavits contained several annexures, which were included as part of the respective exhibit.

36. The respondent tendered a bundle of documents filed pursuant to the Section 58 of the ADR Act (Section 58 bundle) (Exhibit 1, commencing at page 352).

37. The second respondent tendered her affidavit, dated 27 June 2024 (Exhibit 2, page 570)

38. The Tribunal also considered written submissions of the parties.

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

AGREED FACTS

40. In separate proceedings, the Tribunal has previously determined that the protected person is an elderly woman living with moderate to severe dementia.

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

42. It is not disputed that the protected person has lived at an Aged Care Facility in regional NSW since May 2019. It is also not disputed that the protected person owns the properties known as KS and TT, nor that the applicants continue to occupy the TT property.

43. It is also not disputed that GGN and the second respondent are beneficiaries of the protected person’s Will, nor that their relationship with each other is not harmonious.

Reviewable decision

44. On 9 February 2024, the respondent varied a previous decision, following an internal review, and decided that the properties known as KS and TT must both be sold, to fund the protected person’s accommodation and lifestyle.

45. In the letter explaining the outcome of the internal review of decision, the respondent confirmed that it had considered the protected person’s previously expressed wishes not to sell the KS property, as this was her home. The reviewer, Mr Wilkman, acknowledged that this was an important consideration. However, he prioritised “the need to ensure adequate and sustainable funding for her ongoing care and related costs as well as to eliminate all liabilities”, in accordance with the respondent’s obligation to prioritise the protected person’s welfare and interests as the paramount consideration.

46. In coming to its decision, the first respondent rejected the submission of the second respondent that it would be preferable to sell the TT property, because this was more likely to provide sufficient funds to cover the protected person’s liabilities, because the protected person’s liabilities were less than previously anticipated. They amounted, at that time, to $42,036.00.

47. The first respondent noted that the protected person’s Will, dated 14 November 2018, named the applicant and the second respondent as her Executors and beneficiaries. The TT property is bequeathed to the applicant and the KS property to the second respondent, with a provision that any balance of the estate should be divided equally between the two beneficiaries.

48. The first respondent considered this an important consideration but not one which should persuade the decision maker, in this case the first respondent, to favour one beneficiary to the detriment of providing for the protected person’s needs.

49. Furthermore, the reviewer noted that an initial consideration of selling the TT property had not occurred “due to difficulties in contact with (the applicant)”. He suggested that the decision to sell the KS property alone would contradict the protected person’s expressed wishes because one beneficiary (the second respondent) would lose any future benefit from the KS property.

50. Therefore, it recommended that both properties be sold.

THE PARTIES’ SUBMISSIONS

The applicants

51. The factual dispute is best understood by setting out the respective views of the parties. In summary, the applicants submitted:

• they were denied procedural fairness, because they were not given the opportunity to make submissions in relation to the sale of the TT property before the internal review decision was made;

• it is not necessary to sell the TT property in order to discharge the current and future liabilities of the protected person;

• the proceeds of the sale of the KS property would be adequate to raise sufficient funds to discharge the protected person’s liabilities;

• the applicants’ home and principal place of residence is the TT property;

• the first respondent failed to give sufficient weight to the protected person’s testamentary intentions, and that the sale of the TT property would frustrate her intention that the applicants inherit that property, when such a sale is unnecessary;

• the applicants have spent approximately $84,727.05 on the TT property since 2012, because the protected person “had promised the TT property to the first applicant in her Will”. Numerous accounts and receipts were annexed to the application to support this assertion;

• without the contribution from the applicants, the TT property would have been sold in 2012. The improvements were carried out at the TT property with the encouragement of the protected person;

• the TT property could be rented to the applicants to generate income for the protected person to pay future debts;

• the first applicant has suffered from an intestinal injury since October 2023, which has interfered with his inability to consider communication from the respondent prior to and at the time of the internal review;

• the sale of the KS property alone, in addition to a rental agreement for the TT property, would satisfy the requirement to prioritise the protected person’s interests, because it would create a fund to discharge the current liabilities, leaving approximately $300,000.00 for future contingencies and generate ongoing income;

• retaining the TT property would benefit the protected person, because it will increase in value and it will still be available to be sold if required to meet her needs and because the protected person will obtain ongoing income from the payment of rent;

• the protected person intended to give the more valuable property to the applicants. Therefore, the sale of the KS property would give effect to that “general testamentary scheme by ensuring (the applicant) obtained a bigger share of her estate, and (the second respondent) obtains half of the residue”;

• if both properties were sold, it would suborn the protected person’s testamentary intentions to benefit the first applicant more than the second respondent in her Will, because all of her assets would be placed in the residue, which would then be distributed equally between her beneficiaries;

• the KS property is unoccupied, and therefore easier to sell;

• everyone in the proceedings agrees that the KS property should be sold. Had it been sold by now, the outstanding debts would have been discharged.

52. The applicants assess the value of the KS property at $390,000.00 and the TT property at $630,000.00. The applicants also submitted that the first applicant made improvements to the KS property, which cost him $12,592.93. He presses for reimbursement of those funds.

53. The applicants assessed the protected person’s liabilities, including the alleged debt to the first applicant, to be approximately $84,000.00. They assert that this liability is made up as follows:

trust account deficit - $9,761.62 (as stated in the Section 58 documents at page 77);

• nursing home fees arrears - $30,000.00 (approximately);

• debt to the applicant for improvements to the KS property - $12,592.93;

• local council rates arrears - $3,562.08;

• NSW Trustee and Guardian management fees - $27,598.85;

• Origin Energy - $156.93;

• pharmacy expenses - $215.95.

54. The applicant submitted that he “will not press his claim for reimbursement of $84,727.05 with respect to TT in the event” that the decision is made not to sell that property. By inference, he otherwise intends to claim that amount.

55. The applicants submit that the sale of the KS property will be sufficient to discharge the protected person’s current liabilities.

56. Furthermore, the applicants have offered to pay rent of $250.00 a week, which, they assert, would raise an annual income of $13,000.00.

57. Applying an interest rate of 4% per annum, the applicant calculates that the protected person would raise approximately $12,000.00 in bank interest on the balance of the sale price from the KS property. Therefore, the applicant asserts that the protected person has a potential income of $25,000.00 a year.

58. The applicant estimates the protected person’s expenses, including nursing home fees, management fees, pharmaceutical expenses, and contingencies, would amount to approximately $43,000.00 per annum, leaving a deficit of approximately $18,000.00. The applicant submits that this could be paid by drawing down on the balance of the cash invested.

59. The applicants submitted “(the protected person) would have to live until 2041 and attain the age of 110 years before the fund of $305,438.00 is exhausted”, and that the KS property will provide “more than enough” to meet her needs.

60. In reply to the first respondent’s submission that the applicants have occupied the TT property rent free (which is set out in more detail below), the applicants noted that the first respondent has permitted the applicants to live at the TT property rent free, despite it being available to the first respondent to enter into a residential tenancy agreement.

61. In fact, the applicants allege that the respondent has failed its statutory and fiduciary duties as asset manager, by failing to ascertain the market rent it might receive the TT property; and seek to rent that property either to the applicant or other tenants.

62. The applicants dispute that the offered rent of $250.00 is well below market value and state that the first respondent has not provided any information to demonstrate that the applicants’ offer is unreasonable.

63. The applicants also accuse the first respondent of not taking action to convert the KS property into an income generating asset.

64. In response to the second respondent’s submission that the first applicant has acted contrary to his duties as the protected person’s attorney, the applicants submit:

• the protected person knew and acquiesced to the applicants living at the TT property;

• the second respondent was also an attorney but did not require the applicants to enter into a lease with respect to the TT property; and

• the second respondent’s assertion is “in essence an allegation of fraud, which must be proven on the balance of probabilities applying the Briginshaw principle”.

65. Annexed to the second applicant’s affidavit, were copies of what she attested were diary entries between February 2010 and December 2021. Those entries were edited. To the extent that they are allegedly relevant to this application, they contained references of the contact between both applicants and the protected person, and records of assistance provided by the applicants to the protected person. Counsel for the applicants referred the Tribunal to certain specific diary entries. They included:

● 24 February 2010 (page 232)

“(the first applicant) been at (the protected person’s) (TT) mowing. Told me (the protected person) is leaving block to us, if we build house there. Very excited and now hopes to make plans for our house to sell first then start building”;

● 2 August 2012 (page 232)

“(first applicant) told me he wants to put tantershel sheds on sale, as (the protected person) wants to sign block over to him in August so then (the first applicant) can pay Clanger and Leanne out and others that he owes money to. Hope it all works out for him”;

● 19 February 2016 (page 263)

“(the first applicant) and (the protected person) had a long chat about the (TT property). She stated she’s ready to pass it over to us and the farm contents before March 9^th, 2016”.

66. The counsel for the applicants also pointed the Tribunal to certain diary entries which, he submitted, demonstrate her agreement with the proposal that the applicants should occupy the TT property. These entries included, but were not limited to, a diary entry dated 12 October 2014 (page 246) which referred to the fact that the first applicant had picked the protected person up and brought her back to the TT property block for brunch; and another entry on 15 November 2015 (page 258), which recorded another occasion on which the applicants took the protected person to her block.

67. The weight the Tribunal attributes to this evidence is set out later in these Reasons for Decision.

The first respondent

68. In summary, the first respondent submitted:

• the first applicant has made a “significant claim” on the estate of the protected person, since the first respondent made the reviewable decision;

• this strengthens the position that both properties need to be sold to meet the current and financial needs of the protected person;

• the first respondent does not hold any funds for the protected person nor does it receive any income for the protected person;

• her trust account is in deficit of $9,765.62 and her nursing home fees are in arrears;

• the first respondent has been advised that the arrears may place the protected person’s accommodation at risk;

• the first respondent is unable to meet any property expenses for the KS or TT properties, because they do not hold any funds for the protected person;

• the first respondent is unable to pay the protected person’s care needs, including accommodation and pharmacy expenses;

• the correct and preferable decision is to sell both properties;

• when the protected person had capacity, she indicated her desire to retain the KS property. However, the paramount consideration is her welfare and interest, which in this instance is inconsistent with that expressed preference;

• the protected person’s testamentary intention is of less importance than the paramount consideration of ensuring that her basic care needs can be met during her lifetime;

• it is not consistent with the protected person’s welfare or best interests to have her accommodation placed in jeopardy, or be unable to pay for her medication, because she cannot meet her ongoing care needs, in order to preserve her estate for her beneficiaries;

• the protected person does not receive any income, because her pension ceased on 8 June 2023;

• the applicants’ contention that once the proceeds of the sale of the KS property are exhausted, a rental income of $480.00 per week would be required to meet the protected person’s accommodation expenses does not take into account the ongoing property outgoings of retaining the TT property or the costs associated with its leasing;

• any increase in the value of the TT property would mostly benefit the first applicant, not the protected person;

• the TT property is not an income generating asset. The applicants have had the benefit of residing rent free in the property since 2021 but have also made a large claim for purported expenses for work and improvements on the property;

• the proposed rent of $250.00 per week is well below market value and insufficient to meet the protected person’s ongoing expenses;

• retaining the TT property and allowing the applicants to occupy it exposes the protected person to further claims against her estate by the applicants;

• the paramount consideration is the welfare and best interests of the protected person. It is in the protected person’s best interests that her accommodation not be jeopardised;

• little weight should be given to the assertion that the TT property should not be sold, because it is the applicants’ home. The applicants have only lived at that property since 2021;

• the applicants’ assertion that the TT property was promised to them, during the protected person’s lifetime is inconsistent with the applicants’ claim for reimbursement for financial assistance provided to the protected person.

The second respondent

69. The second respondent agrees with the decision of the first respondent to sell both properties.

70. In summary, the second respondent submitted:

• the reviewable decision is the correct and preferable decision, because it is necessary to sell both properties;

• the second respondent has requested the applicants to pay rent to occupy the TT property. These requests have been refused. Therefore, neither property is generating income;

• the rental appraisal obtained by the second respondent from a local real estate agent has estimated market rent for the TT property at between $750.00 and $800.00 per week;

• a decision to sell only the KS property would be highly prejudicial to the second respondent and would frustrate the provisions in the protected person’s Will;

• had the applicants paid rent for the three and a half years they have occupied the TT property, the protected person’s financial position would have significantly improved to the extent that the decision to sell the properties would not have been necessary;

• the estimated potential rental income from the KS property would be $380.00 to $400.00 per week;

• the assertion that retaining the TT property gives better effect to the protected person’s wishes is refuted. The only people this will benefit are the applicants;

• there is no evidence that the protected person encouraged the applicants to undertake any improvements to the TT property. Any such improvements were not for the benefit of the protected person but were for the “direct personal benefit of the applicants”;

• there is a manifest and immediate need to sell both properties;

• any potential increase in the value of the TT property will be for the benefit of the applicants only;

• the fact that the TT property is the applicants’ home is irrelevant. The Tribunal should consider that the applicants have lived there rent free, operating an income earning enterprise, for three and a half years. Whilst they may live there, it is not their property. They have derived and direct and undue benefit from their occupation of the property;

71. The second respondent also gave evidence by way of an Affidavit, which has been marked as Exhibit 2. She asserts the following:

• that she had a close relationship with the protected person since her birth and that the first applicant now has a good relationship with her, but this was not always the case;

• until the financial management order was made, the second respondent assisted the protected person with all her banking and payment of accounts;

• despite having the power of attorney, she was not advised that the applicants would live at the TT property during the protected person’s life time;

• any improvements made to the TT property were done without authorisation of the joint attorney.

The protected person’s wish and intention

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

73. The object of the Guardianship Act 1987 is that the welfare and interests of the protected person should be given paramount consideration. Her stated wishes and intentions are one relevant consideration.

74. Their assertion in relation to this issue is twofold. Firstly, they assert that the protected person intended for the first applicant to benefit from a greater proportion of her estate than the second respondent. Secondly, they submit that the protected person intended that the applicants could occupy the TT property during her lifetime.

75. I find the suggestion that the protected person intended the first applicant to benefit from a larger share of her estate than the second respondent speculative at best. There is no evidence to satisfy me, to the requisite standard, that the protected person had knowledge of the comparative values of both properties.

76. The fact that she provided that any balance of her estate after the distribution of the properties should be distributed in equal shares, does not support the applicants’ submission that it was her intention that a differential distribution be made. On face value, her Will only demonstrates that she intended that the first applicant and the second respondent each benefit from her estate in some way.

77. Even if that is incorrect, the suggestion that the sale of the KS property alone would better reflect the will and preference of the protected person is flawed. It is not contested that the consequence of that proposal would be to significantly reduce any potential benefit from the Estate for the second respondent, because any residual proceeds of the sale of that property, after the payment of the protected person’s expenses, would be shared between the first applicant and second respondent. There is nothing to suggest that this outcome would more closely align with the protected person’s will and preference.

78. Dealing now with the second limb of this argument, I am required to consider the weight that should be attributed to the diary entries annexed to the affidavit of the second applicant. The applicant submitted that these diary entries provided evidence of the protected person’s promise to transfer the TT property to the first applicant during her lifetime. I am not satisfied that it is open to the Tribunal to draw that conclusion from these documents.

79. These documents are hearsay. They are no more than contemporaneous records that the second applicant made of conversations she had with her husband, the first applicant. At best, they may be persuasive that the first applicant told his wife the things that she has recorded, but they cannot be probative insofar as the protected person’s intention is concerned. I, therefore, attach no weight to that evidence.

80. Furthermore, the fact that the diary entries that suggest that the protected person was taken to the TT property by the applicants for outings does not equate to evidence that she was acquiescent to their occupying the property. Those diary entries pre-date the time from which it is agreed the applicants moved into the property, in any event.

81. I also note the findings of the Guardianship Division of this Tribunal to the effect that the applicants only moved into the TT property after the protected person was deemed to have dementia and lacked capacity to agree to that arrangement. There is no evidence to cause this differently constituted Tribunal to form a different conclusion. This does not support the applicants’ argument that the protected person knew and approved of their rent-free occupation of her major asset.

82. In this case, I cannot form a view about what the intentions of the protected person were, at the time when she still had full cognitive capacity.

83. Even if that were possible, the benefit that the protected person may derive from her estate, during her 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 has no priority. Even if her wishes were clear, there is nothing to satisfy me that the interests of ensuring that the protected person’s financial needs can be met, during her lifetime, are outweighed by the need to give effect to her intentions about the distribution of her estate.

84. Therefore, even if the protected person had indicated a desire to benefit her nephew, more than her niece, it would not be a factor of sufficient weight to result in a finding that the reviewable decision is not the correct and preferable one.

Is it the correct and preferable decision for both properties to be sold?

85. To determine this requires a review of the competing proposals and any other identified options.

86. The first respondent submitted that the aged care facility has indicated that the protected person’s accommodation is at risk, due to extensive accommodation fees arrears. There was no evidence to contradict this submission, and I, therefore, accept it to be true. That being the case, I am satisfied that there is an urgent need to ensure that the protected person’s accommodation fees and any arrears, as well as her living expenses and comforts of life can be funded. How that might be achieved is a relevant consideration.

87. The applicant disputes that both properties need to be sold. They maintain that the proceeds of the sale of the KS property, alone, will suffice to ensure that the protected person can satisfy her financial obligations.

88. Not one of the parties provided a recent real estate appraisal or certified valuation of either property. Therefore, the estimates provided by each of the parties in relation to the value of the properties are speculative. This weakens the force of the applicants’ submissions that the sale of the KS property would provide sufficient funds to extinguish her debts and provide for her ongoing expenses.

89. I note the applicants’ submission that they could now commence paying $250.00 a week rent to occupy the TT property. Both respondents argue that this is well below market value.

90. The second respondent provided real estate appraisals which state that the estimated mark rent is between $750.00 and $800.00 per week. The applicants did not provide evidence to contradict this. I find that the appraisal from a licensed real estate agent is more likely to be a reliable indication of the appropriate rent than the unsubstantiated estimate of the applicants.

91. The applicants seek to explain the fact that they have not paid rent to date by accusing both respondents of failing to request them to do so. This is not a submission which advances their cause. The fact that the applicants are occupying the protected person’s major asset is a significant contributing factor to her lack of income. The offer they now make to pay rent for that privilege is inadequate and comes too late to avoid the dire situation in which the protected person now finds herself.

92. I refer now to the applicants’ claim for reimbursement for alleged improvements carried out on both properties. Any such claim will be determined by the NSW Trustee and Guardian. However, to the extent that a claim exists is relevant to this application, I am satisfied that the sale of both properties will result in the protected person having sufficient funds to meet any claim that can be substantiated. The value of the first applicant’s offer to waive any such claim cannot be assessed by this Tribunal, because the claim has, as yet, not been considered by the NSW Trustee and Guardian. I, therefore, consider that offer to be of very little assistance in terms of determining the issues in this matter.

93. The protected person is a woman who has substantial assets but who has insufficient income to pay for her basic needs. I accept the uncontested evidence that she is at risk of losing her accommodation. I am also satisfied that there is significant and unacceptable risk to her dignity and reputation, because she is unable to fulfil her financial obligations, due to a lack of income. I do not accept that the circumstances in which she now finds herself are in her best interests.

94. The second respondent asserts that the KS property is uninhabitable and will be difficult to sell. Photographs were included in evidence that depict a property that might require some renovation. The applicants have not provided any evidence to contradict that assertion. In circumstances where it is urgent that funds are raised to pay for the protected person’s needs, I find that it is in her best interests that both properties be presented and marketed for sale, to safeguard against the risk that one property may take longer to sell than another and maximise the chance of raising funds expeditiously.

CORRECT AND PREFERABLE DECISION

95. The applicants submitted that the preferable decision would be to sell the KS property only.

96. For reasons set out above, that is not a persuasive argument. Any further delay in the management of the protected person’s debts may result in a financially and personally catastrophic outcome. If the uncontested evidence that the KS property may not be easy to sell due to its condition is correct, it will be necessary to maximise the prospect of a quick sale of at least one of the protected person’s assets.

97. I turn now to the applicants’ argument that the decision is not the correct and preferable one, because the TT property is their home. In circumstances where the evidence falls short of demonstrating that the applicants occupy the TT property with the full knowledge and permission of the protected person, and because they have only occupied the property for a relatively short period of time, namely since 2021, I do not consider that to be a factor which outweighs the best interests and welfare of the protected person.

98. The protected person owns the assets, from which she is currently deriving no benefit. On the contrary, the evidence demonstrates that she is suffering financial detriment because neither of her major assets are generating income. The fact that her Centrelink pension has been ceased is another important consideration.

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

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

101. I am, therefore, satisfied that it is in the protected person’s best interests that both properties be sold and that the correct and preferable decision is to sell both properties.

ORDER

102. The decision of the NSW Trustee and Guardian dated 9 February 2024 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: 19 September 2024