GTC v NSW Trustee and Guardian and GWH and GXF

[2025] NSWCATAD 174

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GTC v NSW Trustee and Guardian and GWH and GXF [2025] NSWCATAD 174

Hearing dates:

11 July 2025

Date of orders:

21 July 2025

Decision date:

21 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Block, Senior Member

Decision:

The Trustee’s decision to sell the subject property is affirmed.

Catchwords:

ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) - NSW Trustee and Guardian – Interests and welfare of protected person – Whether to sell a protected person’s property – Financial management order –s16 NSW Trustee and Guardian Act 2009 (NSW)

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

Cases Cited:

LK v NSW Trustee and Guardian [2009] NSWADT 224

McDonald v Guardianship Administration Board [1993] 1 VR 521

NSW Trustee and Guardian v FYV [2024] NSWCATAP 243

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

GTC (Applicant)
NSW Trustee and Guardian (First Respondent)
GWH (Second Respondent)
GXF (Third Respondent)

Representation:

Solicitors:
Appellant (Self-represented)
J Nalbandian (Legal, NSW Trustee and Guardian) (First Respondent)
D Perla (Second Respondent)
D Perla (Third Respondent)

File Number(s):

2024/00429505

Publication restriction:

With the exception of officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1. GTC (the Applicant) has applied to the Tribunal for a review of the decision made by the NSW Trustee and Guardian (the First Respondent) to sell her mother’s house. In April 2021, the Guardianship division of the Tribunal made orders that the Applicant’s mother (the Protected Person) be committed to the financial management of the First Respondent. The decision to sell the house is supported by GWH (the Second Respondent) and GXF (the Third Respondent) who are the Applicant’s sisters.

2. The Applicant submits that the First Respondent has not established that her mother’s estate would benefit if the property was sold, and contends that her mother has resumed residing in the property, since December 2024, and wishes to remain in the property.

3. This is an application for administrative review of a decision of the First Respondent pursuant to s 70 of the NSW Trustee and Guardian Act 2009 (NSW) (the Act).

Legislative Framework

4. The Tribunal has jurisdiction to review a decision pursuant to s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) and sections 6, 7 and 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).

5. Section 62 of the Act provides the basis of the Tribunal’s jurisdiction to hear this matter. The decision to sell the house is made in connection with the exercise of the First Respondent’s functions, and the Applicant has standing to bring the application.

6. As set out above, on 22 April 2021, the Guardianship Division of this Tribunal found that the Protected Person, who is currently 95 years old, was incapable of managing her affairs, due to a diagnosis of moderate dementia complicated by psychosis. A financial management order was made pursuant to the provisions of Part 3A of the Guardianship Act 1987 (NSW) and the Protected Person’s estate was committed to management by the First Respondent.

7. Chapter 4 of the Act is concerned with 'management functions relating to persons incapable of managing their affairs.' Under s 56 and 57 of the Act, the First Respondent was empowered to exercise all the functions necessary and incidental to management and care, and the functions which would have been exercised by the Protected Person if she were under no incapacity.

8. Section 16(1) of the Act empowers the First Respondent, amongst other powers, to grant leases, receive rental income and sell real property. On this basis, I am satisfied that it is within the power of the First Respondent to sell the Property.

9. In accordance with s 62 of the Act, I am satisfied that the Applicant is an ‘affected person’ and therefore entitled to apply to this Tribunal to review the decision of the First Respondent to sell her mother’s property.

10. In reviewing the decision, the Tribunal ‘stands in the shoes’ of the First Respondent and is required to make the ‘correct and preferable decision’ having regard to any relevant factual material and any applicable written or unwritten law. The Tribunal may set aside, vary or affirm a decision before it as per s 63 of the ADR Act.

11. The review is to be conducted ‘without any presumption as to the correctness of the decision’: McDonald v Guardianship Administration Board [1993] 1 VR 521 at [530]. On review the Tribunal may exercise all of the functions vested in the First Respondent.

12. The Tribunal must consider the material that is available before it, which may include material that postdates the reviewable decision as per YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

13. This Tribunal must give paramount consideration to the interests of the Protected Person, and in accordance with s 39 of the Act, the following principles must be observed:

1. the welfare and interests of such persons should be given paramount consideration,

2. the freedom of decision and freedom of action of such persons should be restricted as little as possible,

3. such persons should be encouraged, as far as possible, to live a normal life in the community,

4. the views of such persons in relation to the exercise of those functions should be taken into consideration,

5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

7. such persons should be protected from neglect, abuse and exploitation.

Material before the Tribunal

14. The material before the Tribunal included submissions and correspondence by both parties.

15. The Applicant submitted a bundle of documents which included submissions, correspondence, file notes, copies of communications from the Respondents.

16. The Respondent submitted a bundle of documents which included their submissions, correspondence, photographs, the Statement of Advice dated 22 March 2022, the decision regarding the appointment of the First Respondent as the financial manager of the Protected Person in April 2021, their recent decision and the internal review notifications.

17. Both parties made oral submissions at the hearing. The Applicant’s daughter, acting as the Applicant’s representative, offered two witnesses, her friend (T) and her brother-in-law (B), whilst the Second Respondent offered the Protected Person’s grandson (M) as a witness. The three witnesses gave evidence and were cross examined by the other party.

Issue for determination

18. The following issues arise in this matter and are considered below:

1. What is the current financial status of the Protected Person?

2. Is the sale of the Property the correct and preferable decision, for protecting the Protected Person’s financial position and future, taking into account the principles set out in s 39 of the Act?

3. Does the Protected Person’s alleged residency at the Property change the conclusion in respect of sub-paragraph b above?

Background

19. On 18 September 2024, the First Respondent notified the Applicant that a decision had been made to sell the Protected Person’s house located in Marrickville (the Property). The Property had been the Protected Person’s place of residence until she moved in with her daughter, the Applicant, some years earlier. A desktop valuation indicated that the Property was worth approximately $1.4 million, and that it could be leased out for $650 per week if $15,000 were spent to bring it up to leasable standard.

20. This is the Protected Person’s only asset of note, whilst she has a number of significant liabilities and ongoing expenses, which the First Respondent ascertained could not be met by leasing the Property.

21. The decision to sell the Property was based on a calculated shortfall of over $20,000 in meeting her annual expenses. It was acknowledged by all parties at that time, that the Protected Person had not lived in the Property for some years, and likely since 2020, according to the supplementary submission of the Applicant.

22. At the request of the Applicant an internal review was conducted. In a decision dated 24 October 2024, the reviewer affirmed the original decision, noting that they were satisfied that the sale of the Property was in the Protected Person’s best interests and the sale proceeds would be utilised for her ongoing care and support needs, and to meet her current expenditure and liabilities.

23. On 15 November 2024, the Applicant lodged an application for administrative review of the decision to sell the Property with the Tribunal.

Applicant’s case

24. The Applicant submits the correct and preferable decision is to retain the Property for occupation. Her grounds for this review include the following:

1. That the Protected Person only moved out temporarily, due to suffering health issues which have since resolved, but wished to return (or had returned since December 2024) to reside in the Property;

2. That the sale was against the Protected Person’s wishes, which should be taken into account;

3. That the Protected Person has no physical incapacity issues, and therefore is not currently in need of funding for potential care, and hence this proposed sale is premature;

4. That the First Respondent has mismanaged the Protected Person’s finances, and is responsible for the accumulation of the relevant debt and liabilities, triggering their decision to sell the Property; and

5. That the First Respondent is therefore in breach of their obligations pursuant to sections 16(1)(g), 16(1)(h), 16(1)(o), 39(a), 39(d), 39(e), 39(f) and 39(g) of the Act.

25. The Applicant submitted that the Protected Person does not have health issues, aside from some paranoia, for which she requires a family member to be present in the house with her.

26. The Applicant submitted that the Protected Person had in fact moved back into the Property in December 2024, despite the First Respondent changing the locks in September 2024.

27. The Applicant submitted that the First Respondent had been responsible for incurring the Centrelink debt because they had neglected to inform Centrelink of the Protected Person’s temporary absence from the Property.

28. The Applicant submitted that the First Respondent was also responsible for not securing a Portuguese pension worth approximately $30,000 for the Protected Person to which she was entitled.

29. The Applicant submitted that the First Respondent had generally mismanaged the Protected Person’s assets by charging substantial trustee fees and accruing significant council and utility arrears.

30. At the hearing, the Applicant submitted that the Respondents’ submissions and evidence of the Property being uninhabited and uninhabitable, were inaccurate, and produced two witnesses to provide evidence under oath as to their interactions with the Protected Person, so as to confirm that she now resides in the Property and wishes to remain there.

31. At the Applicant’s invitation, the Tribunal sought to call the Protected Person during the hearing, however she did not speak English and an independent Portuguese interpreter could not be arranged at short notice.

32. At the hearing, the Applicant further submitted that the medical diagnosis which led to the appointment of the First Respondent as the Protected Person’s financial manager, was overstated, inaccurate and not reflective of her current state of health.

Respondent’s case

33. The Respondents submitted that the First Respondent made the correct and preferable decision in the circumstances, and that their decision to sell the Property should be affirmed by the Tribunal, for the reasons briefly outlined as follows:

1. The Protected Person has been suffering from moderate dementia and psychosis for a number of years, such being confirmed by medical professionals in 2021 and as recently as May 2025;

2. The Protected Person has been living with the Applicant for some years, and is unable to live independently;

3. The Property remains uninhabited, has been locked up and its condition has observably deteriorated since September 2024;

4. The Property was occupied rent free by the Protected Person’s grandson for 2-3 years after she moved in with the Applicant, and the First Respondent was obligated by law to report the change in residency of the Protected Person to Centrelink, once this was discovered; and

5. The First Respondent obtained a Statement of Advice assessing the Protected Person’s financial position and needs, and noted that the recommendation to sell the Property based on the Protected Person’s liquidity and cashflow shortfall problems, predated the Centrelink debt.

34. The First Respondent submitted that they complied with the full suite of their obligations pursuant to the Act, and that the Property must be sold in order to fund the Protected Person’s needs and clear her debts.

35. The Respondents submitted that they believe the Property has been unoccupied since September 2024, and has not been occupied by the Protected Person since a few years prior.

36. The First Respondent submitted that the Protected Person was not medically fit enough to provide meaningful input into the decision, and that her family had been given the opportunity to provide their views on the proposed sale.

37. The Respondent called the Protected Person’s grandson M to give oral evidence under oath, who spoke to his belief that the Property remains vacant. He asserted that he lives less than 100 metres from the Property and walks past it regularly, and has taken photographs and knocked on the door occasionally, and is of the belief that neither the Protected Person nor anyone else is currently residing in the Property.

Consideration

38. The provision relied on by the First Respondent, in forming the decision to sell the Property, was that they had given adequate consideration to s 39 of the Act in deciding that the sale of the Property was necessary to meet and reduce the expenses, satisfy the liabilities, and finance the ongoing care and support needs of the Protected Person.

39. The Tribunal must apply the principles set out in s 39 of the Act and then determine whether the decision to sell the Property is the correct and preferable decision. This task necessitates deciding “what is now the correct and preferable decision on the material before us, not what might have been the correct and preferable decision at some earlier point in time” per NSW Trustee and Guardian v FYV [2024] NSWCATAP 243 at [93].

Peripheral matters

40. A number of peripheral issues were raised during the hearing which fall outside the scope of this decision, but are important to briefly address.

41. The parties substantially agree that the Protected Person has a Centrelink debt exceeding $80,000. The Applicant believes that this was caused by the First Respondent’s mismanagement, and submitted that Centrelink had advised her that no interest would be charged nor would the debt be pursued before October 2025, or possibly until after the death of the Protected Person. The Applicant was unable to provide any evidence or material substantiating these alleged discussions or promises, and the First Respondent considered that they were unable to act in reliance thereon.

42. In any event, the recommendation to sell the Property is based on the financial situation of the Protected Person prior to incursion of the Centrelink debt, so the point is potentially moot.

43. The Applicant’s submissions that the Protected Person was entitled to a Portuguese pension in the amount of $30,000 were not substantiated by any documentation. In the Tribunal’s decision dated 22 April 2021 [2020/00187945] appointing the First Respondent as financial manager of the Protected Person, it was noted at [25] that the family had delayed in applying for such pension. The parties’ submissions in these proceedings contained a file note showing that enquiries had been made regarding such pension, with the result noted that “Client is Not entitled to a Portuguese Pension.” In the absence of any further evidence, no weight can reasonably be given to this alleged entitlement.

44. The Applicant has asserted that the First Respondent has mismanaged the Protected Person’s financial affairs, however this issue is beyond the scope of these proceedings. The Applicant has separately filed an application with the Tribunal to remove the First Respondent as the financial manager of the Protected Person, in favour of the Applicant’s son-in-law. That matter is scheduled to be heard in September 2025, and has no relevance to this one.

What is the Protected Person’s current financial status?

45. The records submitted by the First Respondent indicate that the Protected Person currently has liabilities of (i) council arrears of $8,827.22 (ii) pharmacy arrears of $768.09 (iii) water arrears of $1,218.69 (iv) trustee fee arrears of $11,815.37; and (v) Centrelink debt of $81,253.95.

46. There is potentially a further liability in the form of an alleged loan of $28,000 outstanding to the Protected Person’s granddaughter in respect of funeral expenses incurred in 2016, although no documentation has ever been provided to the First Respondent or the Tribunal in respect of such loan. In the Tribunal’s decision dated 22 April 2021 [2020/00187945] appointing the First Respondent as financial manager of the Protected Person, it was noted at [32-33] that a caveat was placed on the Property on 27 August 2020 in respect of this alleged loan.

47. The records submitted by the First Respondent indicate that the current assets of the Protected Person are less than a thousand dollars in a bank account, and otherwise only the Property which is unencumbered and estimated to be worth up to $1.75 million. The ongoing expenses for the Property include insurance, council rates and utilities which amount to an additional $6,000-7,000 per year, and this does not account for additional property maintenance costs which may arise. No rental income has been earned during the vacancy (nor during any alleged occupancy) of the Property.

48. If the Property were to be rented out at the projected $650 per week, even if no work were required to bring the Property up to a leasable standard, the net income would not generate sufficient funds to cover the Protected Person’s ongoing accommodation, care and medical expenses, nor would it assist in reducing her debts.

49. I accept the findings of the Financial Planning unit of the First Respondent dated 22 March 2022, that leasing out the Property is not a viable option, even if it were found to be in a fit condition immediately and even if it obtained above market rent.

50. Even with receipt of a pension, and no Centrelink debt, her income was calculated to be, and remains, well short of the amount needed to service her expenses in the Statement of Advice previously obtained in March 2022. The Applicant noted that an updated Statement of Advice has not been procured for these proceedings, however, it is clear that the Protected Person’s financial situation has significantly worsened since that advice, and will continue to deteriorate as her liabilities continue to accrue, without any income to offset them.

45. In the Tribunal’s decision dated 22 April 2021 [2020/00187945] appointing the First Respondent as financial manager of the Protected Person, it was noted at [21] that there were already significant arrears ($5,244 as at December 2020) in council rates, with no payment plan in place, whilst interest charges continued to accumulate on the debt. The lack of rigorous and considered financial management by the family, together with the difficulties resulting from serious rifts within the family, were instrumental in the appointment of the First Respondent at that time.

46. The Applicant has offered no submissions or evidence with respect to a viable alternative financial management plan, if the Property is not sold, to secure adequate income to address the Protected Person’s current day-to-day needs and reduce or eliminate her substantial debts.

47. The Applicant has asserted that the Protected Person’s current health, capacity and mobility are far greater than as understood by the First Respondent, and that there will be time in the future to sell the Property if her health should deteriorate. Realistically, taking into account her age and existing medical diagnoses, together with the fact that the potential for a sudden downturn in health is increasingly likely for a person aged 95 years old, it cannot be argued that it is in her best interests to stay in the Property with no formal care arrangements in place, and no ability to pay her debts and meet her ongoing expenses.

Is the sale of the Property the correct and preferable decision, for protecting the Protected Person’s financial position and future, taking into account s 39 of the Act?

54. Section 39(a) of the Act requires the welfare and interests of the Protected Person to be given paramount consideration. To this end, it is of paramount importance that the Protected Person access sufficient funding to cover her accommodation, her care and her medical expenses, all of which are vital to her day-to-day survival.

55. The importance of seeking the views of the Protected Person pursuant to s 39(d) of the Act is acknowledged, however the material submitted to the Tribunal supports a finding, on balance, that the Protected Person does not have sufficient capacity to contribute to this decision. Evidence from medical professionals from the time the First Respondent was appointed in 2021, and again from the medical professionals who treated the Protected Person for a recent infection, all support a finding that the Protected Person suffers from, at least, moderate dementia and psychosis. In the Tribunal’s decision dated 22 April 2021 [2020/00187945] appointing the First Respondent as financial manager of the Protected Person, it was noted at [18] that the Tribunal could not obtain her views as her capacity to participate was impacted by her dementia.

56. In that decision, it was noted at [14] that the Protected Person suffered from paranoid delusions and hallucinations. It was further noted that these had begun some years earlier, but had worsened after the Protected Person’s husband died in October 2016. At [15] it was noted that her memory had suffered a marked decline, and she suffered a general cognitive and functional decline. At [49] it was noted that the medical professionals had submitted that she lacked the capacity to make decisions about financial matters, and that this was acknowledged and not contested by the family members who had participated in the hearing.

57. No medical professional assessment or other evidence has been adduced by the Applicant to support her vehement assertions that the Protected Person no longer has incapacity issues, and is perfectly capable of making decisions. It is highly unlikely that the serious medical conditions the Protected Person suffered from as a 91 year old, would be significantly or radically improved or resolved four years later. Accordingly, I find that the Protected Person does not have the capacity to participate in this decision and provide her views on the sale of the Property.

58. The material and submissions provided to the Tribunal, by both parties indicates that the Protected Person has a devoted family who participate actively in her care. The decision to sell or not sell the Property would not have any bearing on this, and I consider the obligations pursuant to s 39(e) satisfied accordingly.

59. The proposal to sell the Property should assist in ensuring the principles espoused in sections 39(f) and 39(g) of the Act, are able to be met, by ensuring the Protected Person has sufficient financial means for her needs to be fully and appropriately met.

60. Given the above, I find that the only viable option to resolve the Protected Person’s current financial issues and secure her financial future, is to sell the Property.

61. I accept that it may not be what the Protected Person would prefer, and it is certainly not what the Applicant and her branch of the family want. However, on the evidence before me, I am satisfied that the financial imperatives and the paramount consideration of ensuring the Protected Person has the funds to be properly cared for in her remaining years, must take precedence.

62. As per LK v NSW Trustee and Guardian [2009] NSWADT 224 at [35], the Tribunal can be sympathetic to the Protected Person’s views, whilst not holding them to be determinative.

Is the Property occupied?

63. In determining whether or not to sell the Property, one of the factors informing the decision was the First Respondent’s belief that the Protected Person was no longer residing in the Property.

64. The parties and their witnesses gave directly and vehemently opposing evidence in this respect.

65. The Applicant asserts that they changed the locks again after the First Respondent changed them in September 2024, and that the Protected Person moved back into the Property in December 2024 and has resided there since, with the support of her grandchildren.

66. The Applicant was unable to produce any photographs or utility bills or any other material to substantiate this assertion. However, the Applicant’s witnesses (T and B) gave evidence under oath that they had regularly visited the Protected Person at the Property and believed her to be living there.

67. The First Respondent submitted photographs together with evidence of locked gates and dilapidation in the external parts of the Property. The Respondents submitted that the Protected Person had been living with the Applicant for some years and that she continues to do so.

68. The First Respondent submitted emails and text messages indicating that, despite the Applicant’s claim, the Protected Person’s grandson (K) may have never resided in the Property, rent-free or otherwise, and that this was a ruse to prevent the sale of the Property which has in fact sat empty for several years.

69. The First Respondent asserts that the evidence of the state of the Property supports the reasonable conclusion that the Property remains uninhabited. The witness (M) who was called by the Respondents, and is the Protected Person’s grandson, lives nearby and confirmed his belief that the Property is unoccupied.

70. On balance, the evidence of the Respondents and their witness, when considered through the prism of the significant existing medical diagnoses, suggests that the Protected Person does not have the capacity to live alone, and probably does not currently reside at the Property. However, given the conclusion drawn in paragraph 60 above, it will not be necessary to reach a concluded view on this matter. The Protected Person’s financial situation is untenable and will continue to deteriorate without the sale of the Property, regardless of whether she is currently residing there or not.

71. I am therefore satisfied that it is in the Protected Person’s best interests that the sale of the Property proceed and therefore affirm the decision under review. 

Orders

1. The Trustee’s decision to sell the subject property is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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: 21 July 2025