GVV v NSW Trustee and Guardian

[2025] NSWCATAD 114

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GVV v NSW Trustee and Guardian [2025] NSWCATAD 114

Hearing dates:

06 May 2025

Date of orders:

23 May 2025

Decision date:

23 May 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Redfern PSM, Senior Member

Decision:

The Tribunal:

(1) Affirms the decision under review; and

(2) Lifts the stay granted on 25 February 2025.

Catchwords:

ADMINISTRATIVE LAW — review of decision of NSW Trustee and Guardian to sell protected person’s interest in property

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW).

Civil and Administrative Act 2013 (NSW)

Conveyancing Act 1919 (NSW)

Guardianship Act 1987 (NSW)

NSW Trustee and Guardian Act 2009 (NSW).

Social Securities Act 1991 (Cth)

Cases Cited:

None cited

Texts Cited:

None cited

Category:

Principal judgment

Parties:

GVV (Applicant)
NSW Trustee & Guardian (Respondent)

Representation:

Applicant (Self-Represented)
R Stormont (Solicitor, NSW Trustee and Guardian) (Respondent)

File Number(s):

2025/00034295

Publication restriction:

Section 64 (1) Civil and Administrative Tribunal Act 2013-Restriction on publication of information that will identify the applicant or the applicant’s brother, who is a protected person under the Guardianship Act 1987 (NSW), or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. This is an application for the review of a decision made by the respondent, the NSW Trustee and Guardian, to sell the interests of a “protected person” in property jointly owned with the applicant, GVV. The decision was made by the respondent on 14 November 2024. There was an internal review of this decision pursuant to ss 53(3) and (6) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). By decision sent to the applicant on 15 January 2025, the internal reviewer affirmed the decision made by the respondent to sell the interests of the protected person in the property. The protected person is the applicant’s brother.

2. The applicant has requested administrative review of this decision by the Tribunal pursuant to s 62 of the NSW Trustee and Guardian Act 2009 (NSW) (NSWTG Act). There is no dispute that the Tribunal has jurisdiction to review this decision by reason of s 30 of the Civil and Administrative Act 2013 (NSW) (NCAT Act) and ss 6, 7 and of the ADR Act. Nor is there dispute that the applicant, as the brother of the person under financial management who holds the subject property as a tenant in common in equal shares, is an affected person within the meaning of s 62(2) of the NSWTG Act.

3. The applicant disputes the decision to sell his brother’s interest in the property, does not accept that it can be sold given he owns the other half of the property and will not consent to the sale and criticises the conduct of the respondent, which he alleges has been wrongful and incompetent and has given rise to the need to sell the property, which would have not been required if the respondent had properly managed his brother’s financial affairs.

4. The applicant represented himself and the respondent was represented by Ms Stormont.

5. Prior to the hearing, procedural directions were made by the Tribunal for the parties to file all evidence in submissions relied on by 28 April 2025. The applicant applied for a stay which the Tribunal granted on 25 February 2025 pending further order of the Tribunal.

6. I have decided to affirm the decision under review. I also lift the stay order made on 25 February 2025. My reasons follow.

Background

7. The applicant’s brother, the protected person, has been under a financial management order since 11 December 1990. He is 86 years old and has been a permanent resident of an aged care facility in Fairfield since September 2015. Prior to entering aged care, it is understood that the protected person was itinerant. The applicant and his brother were beneficiaries in their mother’s estate. The estate included a property located in Stanmore. According to a report provided to the original decision-maker on 10 October 2024, the mother of the applicant and his brother died in December 2006, leaving her estate to her sons. It is unclear why there was a delay in the administration of the estate. However, in the material there is a reference to the protected person being itinerant and to there being disputes in relation to the estate. These disputes were apparently resolved and when the estate was finalised, the title in the property was transferred to the applicant and his brother as tenants in common in equal shares. This transfer was reportedly affected on 30 October 2015.

8. It is reported, and there appears to be no dispute in relation to this, that the applicant has been living in the property since 2007.

9. The protected person was assessed on 30 September 2015 by Services Australia to have assets of $60,917. As such, he was assessed as being required to pay aged care fees as a low means resident.

10. On 6 May 2024, Services Australia was notified of the half share in the property owned by the protected person. This resulted in his pension being ceased based on the increased value of his assets. The respondent was notified of this by letter dated 12 June 2024.

11. On 16 September 2024 the financial planning unit of the respondent prepared a statement of advice for the protected person with recommendations about the management of his financial affairs. In summary, it was noted that the protected person was assessed as a “low means resident” for the purposes of payment of aged care fees. These fees included a daily accommodation contribution fee, which was assessed as $6,200 per annum, or alternatively, an equivalent refundable accommodation contribution of $100,000 based on the maximum permissible interest rate of 6.15%. The financial advice notes that, based on research from CoreLogic, the Stanmore property had an estimated sale price of $2,670,000 with an estimated rental income of $996 per week. The financial advice further noted that the protected person no longer received Centrelink payments due to his assets being greater than permissible levels. The recurring expenses were assessed at $74,500, leaving an estimated shortfall in cash flow, before investment income, of $74,500. It was noted that at the time of the financial advice, the applicant’s brother had financial assets of approximately $142,000 to fund the current recurring cash flow shortfall.

12. The financial advice estimated that the financial assets of the protected person would be exhausted within 1.9 years, namely on or before September 2026. It was also assessed that he would have a median life expectancy, for males of his age, of approximately 4.5 years. The report further noted that for the property to be retained and the protected person’s expenses to be funded, the respondent’s trust account would need to receive contributions from the applicant, being annual lump sum payments to fund the cash flow shortfall of $74,500, which would need to be reviewed for an increase in recurring costs on an annual basis. It was also recommended that a safety and compliance report be requested to determine what repairs would be required for the property. It was noted that leasing the Stanmore property would not be financially viable option as there would be insufficient income from the leasing to fund the recurring cash flow shortfall once the financial assets were exhausted. It was further recommended that if the applicant was unable to make the requirement payments as outlined, the Stanmore property should be sold, and the outstanding refundable accommodation contribution should be paid for the aged care accommodation. It was also recommended that Services Australia be provided with an updated assessment of their client’s assets.

13. The respondent made an application to Centrelink for hardship on 13 February 2025, making a request that the Stanmore property be disregarded for the purposes of assessing the pension and any increased aged care fees. There is no information about the outcome of this application.

The decision being reviewed

14. In the decision under review and the relevant documents provided by the respondent, the respondent refers to the applicant's brother by his name. Given there are non-disclosure provisions that apply in relation to a protected person, the applicant’s brother will generally be referred to in these reasons as “the protected person”.

15. By submission dated 10 October 2024, a case officer from the respondent made a recommendation to the original decision-maker that the respondent sell the protected person’s interest in the Stanmore property and that, on receipt of the proceeds of sale, approve the payment of the refundable accommodation contribution for the protected person’s aged care accommodation fees, with the contents of the property to be retained by the applicant.

16. The recommendation recorded that on 30 September 2015, Services Australia assessed the protected person’s value of assets as $60,917.00 and required him to pay a basic daily care fee, which was means tested, and an accommodation contribution. The respondent submitted a revised form to Services Australia on 16 May 2024. including his half share in the Stanmore property. By letter dated 12 June 2024, Services Australia advised that the protected person’s Centrelink benefit had ceased based on total assets exceeding $1.1 million, which included his half share in the property. The recommendation notes that an officer spoke to Services Australia advising that the Stanmore property was not the protected person’s principal residence and was inherited but was nonetheless advised that there was no exemption. The recommendation further noted to that there were insufficient assets in the protected person’s estate to fund an annual cash flow shortfall of $74,500 and it would be likely that the respondent would receive a request for repayment of a debt for overpayment of the pension. This issue is currently pending investigation by Services Australia.

17. The recommendation, which noted the advice of the financial planning unit, further notes that the applicant's views were sought in relation to the potential sale of the property and whether the applicant would be able to cover the projected cash flow shortfall.

18. The recommendation was approved by the respondent on 14 November 2024. In summary, the respondent decided:

1. to sell the protected persons interest in the property situated in Stanmore;

2. on receipt of the sale proceeds, approve to pay the refundable accommodation contribution of $100,000 to the facility;

3. the contents of the Stanmore property to be retained by the applicant; and

4. solicitors be retained to act on the conveyance for the protected person.

19. The applicant sought an internal review of this decision.

20. An internal review was conducted, and the internal review of decision report was sent to the applicant by letter dated 15 January 2025. In summary, the internal reviewer affirmed the decision made on 14 November 2024 for the following reasons:

1. The protected person and his late mother were both under financial management, the protected person from 1990 and his late mother from 2005. When the protected person's mother died, she left her estate, which included the Stanmore property, to her sons. The applicant commenced living in the Stanmore property from 2007 but failed to make any payments towards the property during the administration of the estate. The applicant resided in the property, rent free, and would not enter into a deed of arrangement with conditions to reside in the property. The respondent had, since 2010, attempted to enter into an arrangement with the applicant regarding the property but no such agreement was reached. The estate was finalised, with the property title transferred to the applicant and the protective person as tenants in common in equal shares on 30 October 2015.

2. On 30 September 2015, Services Australia assessed the protected person as having assets of $60,917 but after a revised form was submitted to Services Australia on 6 May 2024 notifying of the protected person’s half share in the Stanmore property, his pension was ceased. Despite multiple contacts with Services Australia to discuss the potential for the Stanmore property to be recognised as an unrealisable asset and hardship eligibility, Services Australia confirmed that the protected person was not eligible for a pension.

3. The protected person has not had the benefit of residing in the Stanmore property since 2004. Nor has he obtained any financial benefit. Even though the protected person lived all his life with his mother, he became unwell after his mother moved to aged care in 2004 and he lived an itinerant life until he moved into aged care in 2015. A safety and compliance report was completed in respect of the Stanmore property on 30 July 2024 and the independent inspector recommended repairs costing approximately, in excess of $90,000.

4. The respondent’s records indicate that the applicant had been estranged from his family for over 20 years and only re-established contact in 2007. There is no indication that the applicant actively supports the protected person and at no time did the applicant offer for the protected person to reside with him or to provide support prior to the protected person entering aged care.

5. The protected person was unable to provide a view based on the advice received from the aged care facility. Letters were sent to the applicant on 6 and 20 September 2024 seeking his views, with no response.

6. The internal reviewer formed the view that selling the protected person’s interest in the Stanmore property would be in his best interests, noting that the applicant had been given many opportunities since 2010 to resolve the matter and had not provided any new information to be considered with regard to this decision, retaining the property would financially disadvantage the protected person as he has not resided in or had any benefit from the property since 2004 and the property requires over $90,000 in repairs, to which the protected person would be liable for half share, which is not affordable.

Relevant law

21. The NSWTG Act constitutes the NSW Trustee and Guardian; confers on it functions as a trustee, executor or administrator and functions relating to the financial and other management of estates.

22. Section 38 contains the definitions under the NSWTG Act. A “protected person” means a person in respect of whom an order is in force under the Guardianship Act 1987 (NSW) that the whole or any part of the person's estate be subject to management under the NSWTG Act. The “estate” of a person means the property and affairs of a person.

23. Chapter 4 of the NSWTG Act contains the relevant provisions dealing with the management functions relating to persons incapable of managing their affairs.

24. Section 39 provides:

39 General principles applicable to Chapter

It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles--

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

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

(g) such persons should be protected from neglect, abuse and exploitation.

25. Section 56 relevantly provides that the respondent has, and may exercise in respect of the estate of a managed person, all functions necessary and incidental to its management and care. Section 57 provides that the respondent has all functions of the managed person.

26. Section 16 sets out the powers of the respondent relating to property and other matters and provides as follows:

(1) The NSW Trustee may exercise the following functions when acting in a trust capacity or protective capacity--

(a) receive money, rent, income and profit of real and personal property,

(b) grant leases of property for a term not exceeding 10 years and give to a lessee an option of renewal if the aggregate duration of the lease and any such renewal does not exceed 10 years,

(c) enter into a share-farming agreement for a period not exceeding 3 years,

(d) surrender a lease and accept a new lease,

(e) accept a surrender of a lease and grant a new lease,

(f) execute a power of leasing vested in a person having a limited estate only in the property over which the power extends,

(g) buy, sell, realise and mortgage (with or without a power of sale) real and personal property,

Note : Mortgage includes charge (see section 3 (1)).

(h) pay interest secured by a mortgage out of capital, if income is insufficient,

(i) postpone the sale, calling in and conversion of any property that the NSW Trustee has a duty to sell, other than property that is of a wasting, speculative or reversionary nature,

(j) settle, adjust and compromise a demand made by or against the estate,

(k) exchange or join in a partition of property and give or receive money for equality of exchange or partition,

(l) carry on a business, so far as may appear desirable for the purpose of more advantageously disposing of, or winding up, the business or preserving the business of a managed person until the managed person is able to carry it on,

(m) agree to an alteration of the conditions of a partnership into which a managed person has entered, for the purpose of more advantageously disposing of an interest in the partnership or terminating liability,

(n) carry out a contract entered into before the appointment of the NSW Trustee or enter into an agreement terminating the liability,

(o) surrender, assign or otherwise dispose of, with or without consideration, onerous property,

(p) exercise a power, or give a consent required for the exercise of a power, where the power is vested in a managed person for the benefit of the person or the power of consent is in the nature of a beneficial interest in the person,

(q) sequestrate the estate under the bankruptcy laws,

(r) take proceedings to cause a company to be placed in liquidation and vote or act by proxy at meetings of creditors or shareholders, whether the company is in liquidation or not,

(s) bring and defend actions, suits and other proceedings,

(t) without limiting paragraph (s), take criminal proceedings touching or concerning property,

(u) pay rates, taxes, assessments, insurance premiums, debts, obligations, costs and expenses and other outgoings,

(v) without limiting paragraph (u), pay the reasonable costs of the erection of a memorial or a tombstone over the grave of a deceased person or, if a deceased person is cremated, the reasonable costs of a memorial or any arrangements for the preservation of the ashes of the deceased person,

(w) repair and insure against fire or accident any property and charge the cost of repairs to capital or income, or apportion the cost between capital and income, as the NSW Trustee considers equitable,

(x) bring land under the Real Property Act 1900 ,

(y) do or omit all things, and execute all documents, necessary to carry into effect the functions of the NSW Trustee.

(2) The functions conferred by this section are in addition to, and do not restrict, any other functions of the NSW Trustee.

27. Section 62 provides that an “affected person” may apply to NCAT for an administrative review under the ADR Act of a decision of the respondent that is made in connection with the exercise of the respondent’s functions under Division 1 of the NSWTG Act. An “affected person” includes any person whose interests are, in the interest of NCAT, adversely affected by the decision. As already noted, and there is no dispute about this, I am satisfied that the applicant’s interests are adversely affected by the decision made by the respondent on 14 November 2024. I accept that the applicant has the right to seek a review of the respondent’s decision.

27. The decision made by the respondent to sell the protected person’s interest in the Stanmore property is a decision made in the exercise of its functions under s 56 of the NSWTG Act.

28. Section 53 of the ADR Act provides that an interested party may apply for an internal review of a decision made by an administrator, in this case the respondent. Following the internal review of the decision, the internal reviewer may affirm, vary or set aside the decision under review and, in the latter case, make a decision in substitution for that decision that is set aside. Subsection 53(8) provides that, for the purposes of the ADR Act, an administratively reviewable decision that is affirmed, varied or set aside and substituted is taken to have been made by the administrator and is taken to have been made on the date on which the applicant is given a notice of the internal review decision.

29. Section 7 of the ADR Act provides that an “administratively reviewable decision” is the decision of an administrator over which the Tribunal has “administrative review jurisdiction”. Section 9 provides that the Tribunal has administrative review jurisdiction over a decision if the enabling legislation provides for the decision of administrator to be administratively reviewable. As already noted, s 62 of the NSWTG Act gives the Tribunal jurisdiction to review decisions made by the respondent under Division 1, Chapter 4 of the NSWTG Act. Section 63 of the ADR act provides that in determining an application for review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. Subsection 63(3) provides that in determining an application for administrative review of the Tribunal may decide to affirm, vary or set aside the administratively reviewable decision and, if the decision is set aside, make a decision in substitution or remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Material before the Tribunal

31. The documents before the Tribunal comprise the documents lodged by the respondent pursuant to s 58 of the ADR Act. Many of those documents are referred to above, being the material referred to and relied on by the case officer in the recommendation report dated 10 October 2024, subsequently approved on 14 November 2024, and referred to and relied on in the decision of the internal reviewer dated 15 January 2025.

32. Prior to the hearing, procedural directions were made by the Tribunal for the parties to file all evidence in submissions relied on by 28 April 2025.

33. The applicant provided evidence and submissions which included correspondence between the applicant and the respondent from about July 2024 to April 2025. The correspondence records claims made by the applicant against the respondent and includes a request from the applicant to the respondent dated 12 January 2025 requesting 50% reimbursement for reroofing expenses for the Stanmore property which the applicant stated he had paid in full in the sum of $55,800.

34. After receiving the internal review report, the applicant wrote to the internal reviewer by letter dated 22 January 2025. The applicant complained about certain contents being removed from the Stanmore property. The applicant stated that the assertion about him not paying rent was “ridiculous” and made the following further comments:

“You fail to mention that there is no legal requirement for [the protected person] to stay in Fairfield nursing home or any other nursing home. You fail to mention that there is ample accommodation in the home that is 50% owned by him.

You fail to mention that because of your incompetence and negligence you failed to inform Centrelink between 30-09-2015 and 06-05-2024 that [the protected person] had inherited a 50% share in a house.

Because you informed Centrelink incorrectly or inadequately of the complete circumstances of the transfer to the protected person of 50% of the property, Centrelink stopped his pension.”

35. The applicant further stated in this letter as follows:

“Throughout your review you have made scurrilous remarks about my character to try to influence the reader to believe that I have been a freeloader taking advantage of my situation.

To the contrary, since 2007, I have spent over $200,000 on the property to bring it to a show home standard.

I have just put on a new roof at a cost of $55,800.

When I moved into the home in 2007, I made attempts to locate [the protected person] including visiting a number of police stations. Fairfield police station knew of him and had his name and birth date on file but they did not know where he might be.

………..

I found Fairfield nursing home a very pleasant place and was pleased that Liverpool hospital had sent him there. I have attached two letters regarding my visit there.”

36. The applicant also provided a copy of a letter dated 17 February 2016 addressed to the manager of the Fairfield nursing home in relation to his brother. The letter included the following:

“I am writing to advise you that I am happy to provide [the protected person] with any extras that are not normally supplied by the nursing home such as a radio, television, books, chess sets etc, or for any requests he should make that are allowed by your rules.”

37. In his letter dated 20 February 2025 addressed to the respondent, the applicant wrote as follows:

“It has just come to my attention, that because of the negligence and incompetence of the Trustee & Guardian, you have not only cost [the protected person] $21,486 in lost pension payments, you have charged him more than $10,000 in management fees since May 2024. By 30-06-2025 it will be $29,494.00 in lost pension payments and close to $15,000 for your management fees.

If you succeed in selling [Stanmore property] at your valuation of $2,300,000, you will cost [the protected person] and myself a further loss of $1,200,000. Stanmore's leading real estate experts have valued it at $3,500,000.”

38. The applicant concludes the letter by suggesting that the respondent immediately resign as his brother’s financial manager.

39. In a letter dated 11 April 2025, from the applicant to the respondent, the applicant states that the respondent should waive all fees until [the protected person’s] pension was restored and then reimburse [the protected person] for the money he had lost because of the respondent’s negligence and incompetence. The applicant further states that if this was done, “then all talk of selling his brother's 50% share in his home would be irrelevant”.

40. At the hearing, the applicant advised he did not keep a copy of the documents that had been filed and, because it was unclear whether those documents had been served on the respondent, a further copy was made by the Tribunal and provided to the respondent. The applicant was also provided with a copy of the documents that he had lodged by the registry after the hearing.

41. After the hearing the applicant lodged documents with the Tribunal on 7, 9 and 12 May 2025. This is despite the fact that there were no directions made allowing further submissions to be made or evidence to be filed.

42. The documents comprised:

1. A notice reportedly published in the Daily Telegraph on 30 September 2011 about a person known as Grant McDonald. Also attached is an article in the Sydney Morning Herald with a handwritten notation that it was published on 28 June 2010 about a successful claim made by Grant McDonald against the NSW Public Trustee. The heading of the article is ‘Justice after 42 years in court marathon’. The court decision related to the administration of estate where the deceased had died without a will. The NSW Public Trustee was appointed to administer the estate and the presiding judge reportedly found that her relatives were “stonewalled for decades” in what was described as “blind bureaucratic management”.

2. The document lodged with the Tribunal on 9 May 2025, includes a statutory declaration, signed but undated from the applicant, stating that his sole place of residence is the Stanmore property. The applicant also stated that his brother’s Centrelink payments ceased on 6 June 2024 and he has asked the respondent to provide him with information about why his brother’s pension was stopped. The statutory declaration notes that [the protective person] has never had any more than $169,000 in his trust account and he has no other assets, and the respondent should be asked why they have failed to help his brother. The applicant enclosed copies of correspondence with the respondent in 2010.

3. In the submission lodge with the Tribunal on 12 May 2025, the applicant attaches copies of his letters to the respondent dated 9, 10, 11 and 17 April 2025 (incorrectly described in the letter as May 2025) and notes that he has received no response to these letters. The applicant again criticises the respondent for ignoring his brother for many years and again refers to the Supreme Court case of Grant McDonald v the NSW Public Trustee.

43. These late submissions are consistent with the other submissions in correspondence provided by the applicant referred to above.

Submissions

44. The applicant provided a handwritten submission to the Tribunal on the day of the hearing. This submission (anonymised so as not to disclose the protected person’s details) is as follows:

“The trustee and guardian have been [the protected person’s] financial managers since 1990. They did not know his whereabouts for the majority of that time. They did not have the slightest interest in him until 2023 when they discovered they had given Centrelink wrong information for eight years.

When there was a possibility of having to repay Centrelink $213,114.78 they went into panic mode and decided to sell 50% of the house.

They do not have the expertise or knowledge of how to sell 50% of a house when the owner of the other 50% is not for sale.

The only other decision the Tribunal can make is that an organisation that cannot even supply correct information to Centrelink is not capable of selling 50% of a house.

[The protected person] is welcome to live at [Stanmore property] and suitable nursing care will be provided for him by [the applicant].

Owing to the incompetence and negligence of the trustee and guardian an application to revoke the financial management of [the protected person] will be made by [the applicant].

I cannot give you the costing of the nursing care but they will be met.”

45. In his oral submissions made during the hearing, the applicant said that he would not agree to sell the Stanmore property. He agreed he had not made any proposal to buy the other half of the property but contended that no action should be taken because it was the respondent’s fault the pension had been overpaid and that approximately $213,000 needed to be repaid. He submitted that his brother could live at the house or be accommodated in an alternative facility cheaper facility. However, he agreed that the current facility was a “lovely place”. The applicant disagreed with the Centrelink ruling about the pension because he believed that it could be argued that he was a “partner” of the protected person. The applicant also agreed that he had not made any proposal to the respondent about his brother returning to live at home and did not know what would be involved in looking after him. He had not made further inquiries about these matters and did not put any evidence before the Tribunal relation to these issues because he believed that the Tribunal would “outright reject” the respondent’s proposal to sell the property. The applicant submitted that it would not be possible to sell half the Stanmore property and that this was “crazy”. However, he also said that if he needed to, he would obtain bridging finance or a reverse mortgage. There was no other evidence about whether the applicant would be able to do this.

46. The respondent submits that as of 2 May 2025, the respondent holds just over $100,000 for the protected person. The total weekly accommodation fee for the protected person, which includes the basic daily care fee, the means tested care fee and the accommodation contribution fee, is $189.12 and there is a potential debt owed to Centrelink for the overpayment of the pension of $213,144.78. The protected person is liable to pay $2,664.78 per month in aged care fees, however, these fees have now increased to approximately $5,295.36 per month, making total expenses of over $63,000 per annum. According to the respondent, the median life expectancy for a person of the protected person’s age is approximately 90 years old, which is based on information provided by the respondent’s financial planning unit. Given the current funds held by the respondent, it is expected that the protected person’s funds will be depleted by about September 2026. It is also submitted that if the property is retained, the protected person remains liable for ongoing property expenses, including council rates, insurance and maintenance and that he receives no benefit from retaining the property.

47. It is submitted that the correct and preferable decision is for the Tribunal to affirm the decision under review because it is in the best interests of the protected person for the asset to be realised and for the advice from the financial planning unit to be implemented. This advice is summarised above. The respondent submits that the protected person receives no benefit from returning the property, the applicant is receiving the full benefit of the property and he' is not paying rent yet despite this, the applicant is also seeking payment of 50% of the property repairs and expenses. The respondent has identified that there are significant property expenses that have been identified as requiring attention over the next three years (p 274 of the s 58 documents) and that the protected person does not have the funds to contribute to these expenses. Relevantly, the respondent relies on a safety and compliance property report review dated 14 January 2025 (pp274 to 277, s 58 documents) which reported that an estimate of $95,400 is required for essential repairs required to be completed in the next 12 months. This review was based on a Safety and Compliance Report conducted by Abundance Property Services on 30 July 2024 (pp113 to 27, s 58 documents). The respondent also submits that renting the property will not generate sufficient income to fund the protected person’s cash flow shortfall or to meet the proposed property repairs and expenses.

48. It is submitted that the interest of the protected person in Stanmore property should be sold to ensure his financial needs can be met and his liabilities paid. It is submitted that, even though he has been given ample opportunity, the applicant has not put forward any alternative proposal. He has not offered to buy the half share. The respondent does not consider that it is in the protected person's best interests to live in the Stanmore property with the applicant. There is no evidence that his needs will be met by in-house support or the care of the applicant, nor is there any proposal about how this will be implemented or funded.

49. In response to the issue raised by the applicant that it would be unlikely to be able to sell a half interest in the property, the respondent advised the Tribunal that if the applicant would not agree to the sale, the respondent take steps for a for sale of the property pursuant to s 66G of the Conveyancing Act 1919 (NSW). Section 66G provides that where any properties is held in co-ownership, the court may, on the application of any one or more of the co-owners, appoint trustees of the property and vest the same in such trustees to be held by them on the statutory trust for sale or on the statutory trust for partition. The respondents submitted that this would be a last resort, but it was the only option that was available in the absence of the applicant agreeing to a sale or agreeing to purchase the protected persons half share in the property. Further, there was no proposal before the Tribunal about this, nor was there evidence about the capacity of the applicant to obtain finance to fund the purchase.

50. In response, the applicant stated that he had not considered these options but would. The applicant further said that it was unlikely that his brother would live for a further 4 and a half years. He had visited his brother recently and, in his view, his brother was quite frail. He submitted that the respondent should wait because if his brother died, it was likely that his brother's interest in the Stanmore property would pass to him. He further submitted that that his brother would not be in this position but for the incompetence of the respondent.

Consideration

51. The applicant’s brother, the protected person, is an 86-year-old man who has been under financial management since 1990. He was itinerant for an extended period, at least from his mother's death until about 2015. He now lives in a nursing home where he has been since 2015. He was a beneficiary of his mother's estate and, with the applicant, owns half of the Stanmore property. It is valued by the respondent in the vicinity of $2.3million.

52. There is evidence that the protected person has approximately $100,000 in funds in his estate but has monthly expenses for his aged care of nearly $5,300. There is evidence that he has been paid a pension which has been assessed by Centrelink, excluding the value of his half share in the Stanmore property. There is also evidence that the protected person may have a debt to Centrelink of approximately $213,000 for the overpayment of the pension. This is still be assessed by Service Australia and no formal claim has yet been made. It is unclear whether this potential claim includes interest or whether this sum represents the overpayment, being the difference between the pension the protected person is now assessed as being entitled to, having regard to the value of the assets forming part of his estate, and the amount that he was paid.

53. The applicant contends that the respondent was negligent in failing to provide correct information to Services Australia in 2015. There is no evidence before the Tribunal about why this information was not provided and whether there has been negligence or mismanagement by the respondent. It is unnecessary to make a finding in relation to this as this is not the subject of the review. The role of the Tribunal is to make the correct and preferable decision in the circumstances of this case, having regard to the material available at the time of the decision. The decision being reviewed is the decision of the respondent to sell the protected person’s half interest in the Stanmore property and to apply the proceeds for his benefit. The review of this decision does not involve considering a claim as to whether the respondent has been negligent or whether there is a cause of action against the respondent which would somehow result in the protected person’s interest in the Stanmore property not being sold. Clearly there is a benefit to the applicant in the Stanmore property being retained but I am not satisfied that this will provide any tangible benefit, including financial benefit, to the protected person.

54. The applicant has suggested that he may make an application to revoke the financial management order or take Court action against the respondent. If the applicant does take such action, either in the Guardianship Division of this Tribunal or in the Supreme Court, the issue of whether the respondent was negligent or failed in its duty may be considered. However, as already noted, this is not relevant to this review. If and when such an application is made and if the application is successful, this will impact any further action that can be taken by the respondent in the administration of the estate. However, there is no evidence such an application has been made.

51. If the protected person has been overpaid his pension because his interest in the Stanmore property was not taken into account, then the overpayment would be liable to be repaid. It is possible that there may be a claim for interest, but it is also possible that any claim for interest could be waived. In any event, the protected person would have had the benefit of the pension and, if this amount is repayable, it will be a liability on his estate. Unless Centrelink agrees to waive the entire debt or changes its assessment, the protected person would have a liability in respect of which he would not have sufficient assets to meet. His interest in the Stanmore property would need to be sold in any event.

52. The applicant submits that it may be able to be argued that he is a “partner” of the protected person. He provided no legal authority for this. Entitlements to pensions are calculated pursuant to the Social Securities Act 1991 (Cth). The Social Securities Act contains a number of complicated provisions dealing with asset and income tests which are relevant to the calculation and entitlement to various pensions and allowances. The definition of a “partner” for the purposes of s 4 refers to a person who is a member of a couple, not a sibling. There is evidence before the tribunal to the effect that there is a potential debt for overpayment of this pension. As noted, the amount of any debt has not yet been finalised, but the potential debt raises an issue of concern for the financial interests of the protected person. As such, the respondent is right to be concerned and correct to raise the issue in these proceedings.

53. There is evidence from the respondent, as set out in the advice from its financial planning unit, that it is in the best interests of the protected person for the Stanmore property to be sold so that further funds can be realised. This would allow part of the proceeds to be used to pay of the refundable accommodation fee. This would also ensure that the protected person would not be liable for any further expenses in respect of the Stanmore property.

54. There is also evidence that the protected person may live for until he is about 90 or 91 years old. The applicant submits that his brother is unlikely to live much longer but he provides no medical evidence to support this other than his view that his brother appears to be quite frail.

55. In the absence of evidence to the contrary, I accept the evidence provided by the respondent that the protected person may live well beyond September 2026, when his financial reserves will be depleted. I also accept the submission of the respondent that the protected person is not getting any benefit from retaining his half interest in the Stanmore property because it is unable to be rented to a third party, the applicant is not paying any rent to compensate the protected person for his half share and, in the meantime, there is evidence that the Stanmore property is incurring further costs such as rates, other expenses and maintenance costs. There is also evidence that the applicant has claimed from the respondent his brother’s half share the cost for the roofing repairs which, according to the claim made by the applicant, is in the vicinity of $27,900, being half the amount claimed.

56. The applicant was consulted about this by the respondent in September 2024. There is no evidence, nor does he contend, that he made a proposal to purchase his brother's half share. There is no evidence before the Tribunal that the applicant would be able to borrow the amount required, which appears to be in the vicinity of $1.2 million, or to obtain a reverse mortgage to finance the purchase. The only evidence is form the applicant who says he would do this. Nor has any proposal been made to the respondent, nor in evidence before the Tribunal, that the protected person could live in the Stanmore property with adequate care being provided, or funded, by the applicant. There is no evidence that the protected person has lived with his brother or that the applicant has the appropriate skills to be able to look after his brother. Notably, there is no evidence that the applicant would be able to finance nursing care in the home or that he proposes to do so. It is also relevant to note that the applicant described the nursing home is a lovely place but, despite this, suggested his brother could move into a cheaper nursing home to reduce expenses, as an alternative to selling the Stanmore property.

57. The protected person has lived in the Fairfield nursing home for nearly ten years. I am satisfied that it is in the protected person's best interest to remain living there. I am also satisfied that it is in his best interests for his share of his mother's estate, which may be in the vicinity of $1.2 million, to be released for his benefit.

58. I accept the submission of the applicant that it would be very difficult for the respondent to sell a half share in the Stanmore property. I also accept that, in the absence of an agreement with the applicant, there may be little option for the respondent other than to apply to the court for sale under s 66G of the Conveyancing Act. Based on the written submissions of the applicant and his oral submissions at the hearing, I am satisfied that it is likely that any sale or application to the Court will be opposed by the applicant. Accordingly, any action, including a finalised sale, is likely to be significantly delayed. If the sale is delayed beyond September 2026 and the applicant is unable to offer alternative funding for his brother, the protected person will be severely disadvantaged. He may not be able to maintain his accommodation in the nursing home where he has lived for approximately nine years.

59. It is my role to make the correct and preferable decision. Section 39 of the NSWTG Act provides that it is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the principles set out in the section. Those principles include the principle that the welfare and interests of protected persons should be given paramount consideration. I am satisfied that the respondent has the power under ss 16, 56 and 57 of the NSWTG Act to take steps to sell the protected person’s half interest, which may include, if necessary, taking action under s 66G of the Conveyancing Act.

60. Having regard to the s 39 principles and the evidence before me, I am satisfied that the correct and preferable decision is to affirm the decision under review.

Orders

65. The Tribunal:

1. Affirms the decision under review: and

2. Lifts the stay granted on 25 February 2025.

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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: 23 May 2025