GXK v NSW Trustee and Guardian

[2025] NSWCATAD 215

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GXK v NSW Trustee and Guardian [2025] NSWCATAD 215

Hearing dates:

17 June 2025

Date of orders:

25 August 2025

Decision date:

25 August 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Smith, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – person under financial management order – decision to decline offer to purchase protected person’s property – paramount consideration of the protected person’s welfare and interests

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Guardianship Act 1987 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

Cases Cited:

BLB v NSW Trustee and Guardian [2015] NSWCATAD 83

BND v NSW Trustee & Guardian [2015] NSWCATAP 219

CPE v NSW Trustee and Guardian [2017] NSWCATAD 11

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

Texts Cited:

None

Category:

Principal judgment

Parties:

GXK (Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Applicant (self-represented)
Solicitors:
NSW Trustee and Guardian (Respondent)

File Number(s):

2025/00087204

Publication restriction:

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

REASONS FOR DECISION

Decision

1. The Protected Person in this matter is the parent of the Applicant (GXK). The Protected Person currently resides in an aged care facility. GXK currently resides on the Protected Person’s property (“the property”) with GXK’s child.

2. The Respondent, NSW Trustee and Guardian (NSWTG) is the financial manager for the Protected Person.

3. GXK has applied to the Tribunal for an administrative review of a decision made by NSWTG about the management of the Protected Person’s estate, to decline selling the property to the Applicant for $300,000.00.

4. For the reasons below, the Tribunal has decided that the correct and preferable decision is to affirm the decision under review.

Background

5. The Protected Person’s estate has been managed by NSWTG since 22 March 2023, pursuant to orders made by the Guardianship Division of the Tribunal.

6. On 13 May 2023, the Protected Person entered an aged care facility. The Protected Person is the sole owner of the property, which is the Protected Person’s only asset. The Protected Person’s adult grandchild (also the Applicant’s child) was living in the main dwelling on the property and was the Protected Person’s carer. The Applicant was residing in a granny flat on the property, which the Applicant states was built on the property in 2013 at the Applicant’s cost, with the consent of the Protected Person.

7. On 27 June 2023, a Statement of Advice was completed by a NSWTG Advisory Officer in relation to the Protected Person’s financial situation, which noted that:

1. The Protected Person was not required to pay a Refundable Accommodation Deposit (RAD) and was only required to pay the daily care fee of $58.98 per day.

2. An appraisal completed on the property on 19 May 2023 had resulted in a sales price of $450,000.00 and a rental of $400 per week . The property was to be excluded from the Centrelink Assets test for the first two years of the Protected Person vacating the property.

3. The Protected Person did not have enough financial assets to fund a recurring cashflow shortfall of approximately $15,500.00 per annum over the Protected Person’s lifetime.

4. The Applicant and the Protected Person’s grandchild, who were residing on the property, were required to pay a contribution of $7,750.00 each, per annum (or $300 each, per fortnight). This combined contribution was expected to fund the NSWTG’s fees and $9,000.00 of estimated ongoing property expenses.

5. Should there be any major property expenses which cannot be funded, the sale of the property would need to be considered.

6. If the property was to be retained, a full safety and compliance report should be completed on the property.

8. On 21 July 2023, the Applicant submitted to NSWTG an offer of $350,000.00 to purchase the property.

9. On 7 February 2024, the Protected Person’s grandchild was hit as a pedestrian by a car and admitted to hospital for a month. On discharge from hospital, the Protected Person’s grandchild returned to the property to find that the locks had been changed. It appears that from this time, the Applicant was residing in the main dwelling of the property and the Protected Person’s grandchild has lived away from the property.

10. On 13 February 2024, the financial management order was reviewed by the Guardianship Division of the Tribunal and confirmed for another six months.

11. Between February and April 2024, NSWTG formed the view that the sale of the property was required to meet the Protected Person’s ongoing needs, as:

1. The Protected Person did not have the necessary financial assets to fund the recurring cashflow shortfall over the Protected Person’s lifetime.

2. There had been minimal contribution from either the Applicant or the Protected Person’s grandchild, contrary to the recommendation of the Statement of Advice of 27 June 2023. The Applicant’s grandchild had advised NSWTG on 16 February 2024 of not being able to make financial contributions. The Applicant had made one contribution of $202.00.

3. Safety and compliance reports completed in 2023 for both dwellings on the property recommended repairs that exceeded $100,000.00, and noted that if repairs were not completed, the properties may no longer be insurable. It was not anticipated that either the Applicant or the Applicant’s grandchild would be making contributions towards the cost of the repairs.

12. On 8 April 2024, the Applicant and the Protected Person’s grandchild were advised of NSWTG’s decision to sell the property. The Protected Person’s grandchild sought an internal review of this decision. The decision was affirmed by an internal review. No further review of this decision was sought.

13. On 20 August 2024, the financial management order was reviewed by the Guardianship Division of the Tribunal and again confirmed. The Tribunal considered an application by the Applicant to revoke the financial management order with a view to replacing NSWTG as the financial manager with the Applicant. The Tribunal was not satisfied that it was in the best interests of the Protected Person that the appointment be revoked. The Tribunal was of the view that the finances of the Applicant and the Protected Person are mingled up in the property. The Tribunal was satisfied that were the appointment of NSWTG revoked and the Applicant appointed as the financial manager for the Protected Person, there is a conflict of interest between the Applicant’s duty to act in the best interests of the Protected Person and the Applicant’s own interest in the property, and the Applicant is unable to resolve this conflict.

14. On 13 September 2024, a property valuation report was completed for the property to determine a fair market value for pre-sale purposes. The market valuation was $420,000.00. The quality of the property was described as fair, the condition was described as average, and it was noted that the property is dated and requires repairs and maintenance throughout.

15. On 6 November 2024, the offer of $350,000.000 that the Applicant had made for the purchase of the property was accepted by NSWTG. While the accepted offer was under the market valuation, NSWTG accounted for the poor condition of the property, the minimal funds that the Protected Person held to do any repairs or beautification in preparation for the sale, and the costs of agency fees and marketing.

16. On 29 November 2024, the Applicant withdrew this offer and submitted a reduced offer of $300,000.00. The Applicant claimed investment in the property of $120,000.00.

17. On 17 January 2025, NSWTG declined the Applicant’s offer of $300,000.00 and advised the Applicant that NSWTG was not willing to accept less than $350,000.00 for the property. NSWTG considered that the information that the Applicant had provided (in February 2024) was insufficient evidence of monies spent towards improvement and repairs to the property.

18. The Applicant sought an internal review of this decision. On 3 March 2025, the Applicant was advised that the internal review was completed and had resulted in the decision of 17 January 2025 being affirmed. The internal reviewer was satisfied that rejecting the lower offer was a decision made in the best interests of the Protected Person.

19. On 4 March 2025, the Applicant filed an administrative review application, seeking a review of this decision.

Role of the Tribunal

Jurisdiction

20. The decision under review is a decision made in the exercise of NSWTG’s functions under Div 1 of pt 4.5 (Management of estates) of the NSWTG Act.

21. Section 62(1) of the NSWTG Act provides that an affected person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of a decision of NSWTG that is made in connection with the exercise of NSWTG’s functions under Div 1 of pt 4.5 of the NSWTG Act or is a class of decisions prescribed by the regulations.

22. An “affected person” is defined in s 62(2) of the NSWTG Act and includes a person whose interests are, in the opinion of the Tribunal, adversely affected by the decision.

23. It is not disputed that GXK is a person who is adversely affected by the decision under review.

24. The Tribunal is satisfied that it has the jurisdiction in respect of the decision under review.

Administrative review

25. The task of the Tribunal is to decide what the correct and preferable decision is, having regard to any relevant factual material and any applicable law, pursuant to s 63 of the ADR Act.

In conducting a review, the Tribunal may have regard to material that was relevant at the time of the decision as well as any further material that is relevant at the time of the hearing. The issue for determination is what is the correct and preferable decision at the time of the determination, irrespective of whether it was or was not the correct and preferable decision at the time it was originally taken: YG & GG v Minister for Community Services [2002] NSWCA 247 at [25].

Approach of the Tribunal and principles to apply

26. In CPE v NSW Trustee and Guardian [2017] NSWCATAD 11, at [26] – [27], the Tribunal considered the basis and approach of the protective jurisdiction which was also considered in P v NSW Trustee and Guardian [2025] NSWSC 579:

26. In exercising this jurisdiction the Tribunal must have regard to the paramount consideration of the welfare and interests of the parents in accordance with Chapter 4 generally and section 39 of the Act.

27. This protective jurisdiction is governed by the central informing idea that the jurisdiction exists for the care of those who are not able to take care of themselves. The exercise of this jurisdiction must be for the benefit, and in the best interests, of the person in need of protection as an individual, not for the benefit of the state or for the convenience of carers: P v NSW Trustee and Guardian [2015] NSWSC 579.

27. Section 39 of the NSWTG Act provides that it is the duty of everyone exercising functions under Ch 4 of the NSWTG Act (Management functions relating to persons incapable of managing their affairs) with respect to protected persons to observe the following principles:

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.

28. Administrative review applications relating to decisions concerning protected persons should be conducted in a way that reflects the guiding principles set out in s 39 of the NSWTG Act, and in particular s 39(a), that the paramount consideration in decision-making is the welfare and interests of the protected person: BND v NSW Trustee & Guardian [2015] NSWCATAP 219, [32].

Material before the Tribunal

29. The Applicant relied on:

1. Administrative review application filed on 4 March 2025 (Exhibit A1).

2. Applicant’s submissions/bundle of documents filed on 16 May 2025 (Exhibit A2).

3. Applicant’s submission note/bundle of documents (including a USB with nine photos of the property) filed on 12 June 2025 (Exhibit A3).

30. The Respondent relied on:

1. The bundle of documents filed pursuant to s 58 of the ADR Act on 8 May (Exhibit R1).

2. Respondent’s submissions and Assets and Liabilities Statement as at 3 June 2025, filed on 10 June 2025 (Exhibit R2).

GXK’s position

31. GXK submits that GXK’s intention has always been to purchase the property, so that GXK’s life savings and the house GXK built and lived in, and GXK’s investment in the property, is preserved.

32. GXK submits that $300,000.00 is “enough money to sustain” the Protected Person’s life. GXK submitted that not all of the Protected Person’s Age Pension was being used, and it was only NSWTG’s fees that needed to be covered.

33. At the end of the hearing, the Applicant stated “I will not be removed from this property. I will go to every length possible that I have available to me”. The Applicant stated that “If the sale does not go ahead to me, [the Protected Person] won’t get any money at all because I won’t be removed from this property at all”.

NSWTG’s position

34. NSWTG provided the Tribunal with evidence of the Protected Person’s current financial position:

1. The balance of the Protected Person’s trust account as of the date of the hearing was $5,555.62.

2. The market value of the property, the Protected Person’s only asset, as at September 2024 was $420,000.00. As noted above, safety and compliance reports completed for both dwellings on the property have recommended repairs that exceed $100,000.000. If the property is not sold and these repairs are not undertaken, this may impact on whether the property can remain insured and places the Protected Person’s sole asset at risk.

3. The Protected Person is in receipt of the Centrelink Age Pension. On 7 April 2025, the Protected Person was sent a letter from Centrelink notifying the Protected Person that the property had been given a two-year exemption from the assets test from the date that the Protected Person first entered a care situation. Centrelink were requesting further information about the property as the exemption period was due to end, which may affect the Protected Person’s rate of payment.

4. The Tribunal was advised during the hearing by NSWTG that Centrelink were currently looking at whether the Protected Person is eligible for the Age Pension.

5. The Protected Person’s total income between 22 March 2024 and 21 March 2025 was $27,764.93, and the total expenditure was $29,534.52, which resulted in a shortfall of $1,769.59.

6. The approved budget for the Protected Person between 22 March 2025 and 21 March 2026 is a total income of $30,254.40 and total expenditure of $43,864.52, resulting in a shortfall of $13,610.12.

35. NSWTG submitted that the Protected Person’s health could deteriorate with time, and the Protected Person may need to receive a higher level of care.

36. NSWTG submits that the earlier decision to sell the property was made on the basis of advice from NSWTG’s Financial Planning Unit. NSWTG submits that the decision to decline to sell the property for $300,000.00 to the Applicant, an amount which is significantly below market value, remains the correct and preferable decision on behalf of the Protected Person, to ensure that the Protected Person’s needs can be met. NSWTG submits that it is in the Protected Person’s best interests to achieve the maximum sale price on the only asset owned by the Protected Person.

Views of the Protected Person’s grandchild

37. During the hearing, the Tribunal enquired as to whether the Protected Person’s grandchild had been consulted in relation to the decision under review, given that the Protected Person’s grandchild was the Protected Person’s previous carer, had been involved in the financial management proceedings before the Tribunal and was the sole beneficiary in the Protected Person’s last known will.

38. NSWTG confirmed that the Protected Person’s grandchild had not been notified of these proceedings, and the Protected Person’s grandchild’s views had not been sought in relation to the decision under review.

39. The Applicant strongly opposed the Protected Person’s grandchild having anything to do with the matter. The Applicant submitted that the Protected Person’s grandchild was estranged from the family, and they had nothing to do with the Protected Person’s grandchild. The Applicant stated that it was “my money” and “my intention for my [parent]” and “my personal finances” and that this had nothing to do with the Protected Person’s grandchild.

40. The Tribunal was of the view that the Protected Person’s grandchild was a person who should have been consulted about the decision under review, pursuant to s 72 of the NSWTG Act.

41. The Applicant’s grandchild was contacted by the NSWTG and then by the Tribunal during the hearing and given an opportunity to express views in relation to the decision under review.

42. The Applicant’s grandchild opposes the property being sold to the Applicant for $300,000.00. The Applicant’s grandchild stated that NSWTG was acting in the Protected Person’s best interests and what the Applicant wanted was not in the Protected Person’s best interests.

Consideration

Application of the section 39 principles

43. For the purposes of this review, the Tribunal notes that the principles in ss 39(b), (c) and (f) are not applicable given the financial management order in place and that the Protected Person is residing in an aged care facility.

Section 39(a) - Paramount consideration of the welfare and interests of the Protected Person

44. The principle in s 39(a) of the NSWTG Act instructs that the Tribunal in this review, should give paramount consideration to the welfare and interests of the Protected Person.

45. NSWTG have already made a decision, within the exercise of NSWTG’s functions as financial manager, to sell the property. This decision is not for the Tribunal to review. The decision for the Tribunal to review is whether the property should be sold to the Applicant for $300,000.00. To determine whether this decision is one which promotes the welfare and interests of the Protected Person, it is relevant to consider the Protected Person’s current financial position.

46. In BLB v NSW Trustee and Guardian [2015] NSWCATAD 83, which involved an administrative review by the Tribunal of a decision made by NSWTG to sell a protected person’s property, the Tribunal stated at [30]:

While the effect of the decision under review on the protected person’s financial position is not the sole factor to be taken into account, it is nonetheless relevant to the assessment of her interests and welfare. Her financial position will have a direct bearing on her ability to meet the costs of ongoing care and to fund unbudgeted medical expenses and purchase discretionary goods and services. While it is not possible to predict with any degree of certainty what the protected person’s future health needs will be, or the extent to which whether any recommended treatment will be funded by Medicare, a prudent approach demands that she have adequate funds available to fund any future costs.

47. Based on the financial information provided by NSWTAG, which the Tribunal accepts, the Protected Person does not have the necessary financial assets to fund the recurring cashflow shortfall over the Protected Person’s lifetime. The Protected Person therefore requires the sale of the property for ongoing financial support and stability for the remainder of the Protected Person’s lifetime. For this reason, it is critical that the maximum value of the property is achieved to ensure there are sufficient funds available for the Protected Person’s needs.

48. The Tribunal does not accept the Applicant’s statements, which are not supported by corroborative evidence, that the Applicant has invested $120,000.00 into the property, as a reason for accepting such a low offer for the sale of the property. Notwithstanding what the Applicant states about the Applicant’s investment in the property, the 2023 safety and compliance reports identified over $100,000.00 in required repairs. These repairs have not occurred (including repairs required for both dwellings in which the Applicant has lived) and are placing the property, while it remains unsold, at risk in terms of insurance and depreciation in value.

49. The Protected Person has also not received any potential rental income of $400 per week ($19,200 per annum), assessed in May 2023, as both the Applicant and the Protected Person’s grandchild resided in both dwellings without paying rent.

50. NSWTG questioned whether the improvements that the Applicant claims to have made to the granny flat and the gardens (which the Applicant valued at $100,000.00) are said to benefit the property in its entirety or whether these contributions are only considered to benefit the granny flat which the Applicant built and resided in until recently.

51. The Applicant submitted informal documents purported to be signed by the Protected Person, but not witnessed, that the Protected Person had consented in 2014 to the Applicant building and living in the granny flat. The property, however, remains solely owned by the Protected Person.

52. The Protected Person’s welfare and interest is to be given precedence over the welfare and interests of the Applicant and the Protected Person’s grandchild. While accepting the offer, significantly below market value made by the Applicant, may well meet the Applicant’s current financial and personal circumstances, it would not promote the Protected Person’s welfare and interests.

53. The Tribunal is of the view, given the Protected Person’s current financial situation, that it would be in the Protected Person’s best interests to achieve the maximum sale price for the property, which is the Protected Person’s only asset, to ensure the best chance of the Protected Person’s needs being met in the future. The Tribunal is therefore of the view that it would not be in the Protected Person’s best interests to accept the Applicant’s offer which is significantly below the market value.

Section 39(d) - Views of the Protected Person

54. The principle in s 39(d) of the NSWTG Act instructs that the Tribunal in this review, should take into consideration the views of the Protected Person.

55. The Protected Person has Alzheimer’s Dementia and is unable to make important life decisions.

56. The Protected Person was consulted on 26 February 2024 by NSWTG in relation to the decision, however was not able to make sense of the decision.

57. The Protected Person’s will of 4 December 2019 states that the sole beneficiary of the Protected Person’s estate is the Protected Person’s grandchild.

58. The Applicant submits that the will is not valid for a number of reasons and that in due course, the Applicant will be contesting it. However, on the face of the Protected Person’s last known will, it is the Protected Person’s wish that the Protected Person’s grandchild, and not the Applicant, be the sole beneficiary of the estate. The Protected Person was aware that the granny flat had been built by the Applicant and that the Applicant was residing in the granny flat, and despite this, chose to leave the entire estate (that is, primarily the property which includes both dwellings) to the Protected Person’s grandchild.

59. If the property is sold to the Applicant well below market value, this will not only lessen the funds available for the Protected Person’s ongoing needs and the security of the Protected Person’s financial future, but lessen the value of the Protected Person’s estate to be inherited by the Protected Person’s grandchild.

60. Given the Protected Person’s wishes as expressed in the will of 4 December 2019, the views of the Protected Person’s grandchild to whom the Protected Person has decided is to be the sole beneficiary, are relevant for the Tribunal to consider and the Tribunal has given these views significant weight. As noted above, the Protected Person’s grandchild does not agree to selling the property to the Applicant at $300,000.00 and is of the view that the Applicant is not acting in the Protected Person’s best interests.

Section 39(e) - Recognition of the importance of preserving the family relationships and the cultural and linguistic environments of Protected Persons

61. The principle in s 39(e) of the NSWTG Act requires that the Tribunal recognises the importance of preserving the Protected Person’s family relationships as well as the Protected Person’s cultural and linguistic environments.

62. It is apparent from the material before the Tribunal, and what was observed by the Tribunal during the hearing, that there is a high level of animosity between the Applicant and the Protected Person’s grandchild, given that they are not on speaking terms and are estranged from each other. The Protected Person’s grandchild has stated that he has been locked out of the property by the Applicant.

63. The Tribunal is of the view that in the circumstances, the Tribunal’s determination will not go towards preserving the family relationships, at least between the Applicant and the Protected Person’s grandchild. This principle is therefore not determinative in the Tribunal’s review of the decision.

Section 39(g) - Protection of Protected Persons from neglect, abuse and exploitation

64. The principle in s 39(g) of the NSWTG Act provides that the Protected Person should be protected from neglect, abuse and exploitation and this principle should be observed in the function that the Tribunal has of conducting this review.

65. The Tribunal is not satisfied that the Applicant is acting in the best interests of the Protected Person, but rather is acting in the Applicant’s own best interests. In the Applicant’s material, the Applicant states “Since NSWTAG was appointed as Financial Manager of my [Protected Person]’s estate, my [child] and I have been and continue to be unduly affected, restricting us from moving forward with our lives”. The Applicant’s evidence is primarily focused on the Applicant’s needs and not what is best for the Protected Person. The Applicant’s statements at the end of the hearing, that if the Applicant’s offer is not accepted, the Protected Person will not receive any money as the Applicant will not leave the property, clearly do not uphold or prioritise the Protected Person’s welfare and interests.

Conclusion

66. For the reasons set out above, including the application of the s 39 principles, the Tribunal is of the view that the correct and preferable decision, which gives paramount consideration to the Protected Person’s welfare and interests, is to affirm the decision made by NSWTG on 17 January 2025 to decline to sell the property to the Applicant for $300,000.00.

Order

67. The decision under review 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: 25 August 2025