Jonathan (a pseudonym)

[2025] NSWCATGD 11

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Jonathan (a pseudonym) [2025] NSWCATGD 11

Hearing dates:

23 April 2025 and 9 May 2025

Date of orders:

9 May 2025

Decision date:

09 May 2025

Jurisdiction:

Guardianship Division

Before:

R H Booby, Principal Member
Dr M J Wroth, Senior Member (Professional)
Emeritus Professor P J Foreman AM, General Member (Community)

Decision:

The application for a financial management order is dismissed after hearing.

Notes:

The Tribunal notes that the dismissal of the application for financial management has the effect of revoking the interim financial management order made pending further consideration of Jonathan’s ability to manage his affairs.

Catchwords:

FINANCIAL MANAGEMENT – application for a financial management order – subject person is a 94-year-old man – interim financial management order made – reports of cognitive decline, social isolation, age and physical and economic dependency –subject person intends to sell property – concern that subject person is being manipulated and has not been consulted adequately – whether subject person is incapable of managing his financial affairs – evidence of previous irresponsible financial dealings – evidence of subject person having adjustment disorder and depression due to court proceedings six years ago – evidence that subject person unable to complete current sale forms correctly – evidence not accorded weight or misconceived or insignificant– satisfied that the subject person understands options and effect of the sale and has reasonable plans about disbursement of proceeds – presumption of capacity – evidence insufficient to overturn presumption – application dismissed.

Legislation Cited:

Guardianship Act 1987 (NSW), s 3D

Cases Cited:

CJ v AKJ [2015] NSWSC 498

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Financial Management Application

Jonathan (the person)
Oliver (applicant, proposed financial manager)
Sharone (carer)
NSW Trustee and Guardian

Representation:

D Kaiti, as Jonathan’s separate representative

File Number(s):

NCAT 2025/00128177

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

FINANCIAL MANAGEMENT APPLICATION

Background

1. Jonathan is 94 years old. He lives in Northwest Sydney, NSW, where we are advised he has a unit in a property held as tenant in common with his former wife who lives separately from him in the same building. His son is Oliver and his daughter is Sharone.

2. On 3 April 2025, the Tribunal received a Financial Management application from Oliver proposing that he be appointed as financial manager for Jonathan.

3. On 11 April 2025, the Tribunal ordered that Jonathan be separately represented in the proceedings. Denise Kaiti was Jonathan’s separate representative.

4. On 23 April 2025, the Tribunal made an interim financial management order for a period of six weeks and committed Jonathan’s affairs to the management of the NSW Trustee and Guardian (NSWTG) for that period, and adjourned the hearing of the financial management application for six weeks. Directions were given about the submission and cross service of evidence.

The hearing

5. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

6. Mr Z, solicitor, participated in the hearing on 9 May 2025 as Jonathan’s McKenzie friend.

7. Sharone did not participate in the hearings. We were satisfied that she had been provided with details of the hearing and with a reasonable opportunity to participate in the hearing. We determined to proceed with the hearing in her absence.

8. At the commencement of the hearing on 9 May 2025, Oliver was not in attendance. We made numerous attempts to contact Oliver. We were satisfied that Oliver had been provided with notice of the hearing and with details about how to participate remotely and had been provided with an adequate opportunity to participate in the hearing and to put his views. There was no indication that adjourning the hearing was any more likely to result in Oliver attending the hearing.

9. Jonathan indicated that he wanted to proceed with the hearing in the absence of the applicant.

10. Oliver has provided a report of a psychologist referring to Jonathan’s depression and anxiety related to previous legal proceedings. Despite his advanced age, Jonathan attended the hearing in person, catching buses to do so. Having regard to Jonathan’s efforts to attend the hearing in person and the psychologist’s evidence regarding the psychological effects of previous legal proceeding, we were of the view that it was in Jonathan’s best interests to proceed with the hearing.

11. Being satisfied of Jonathan’s best interests and that Oliver had been provided with a reasonable opportunity to participate in the hearing, we commenced the hearing in the absence of Oliver.

12. Oliver joined the hearing at approximately 12:30 pm, approximately one hour after the time at which the matter was listed. He said that he was overseas and was confused about time.

The application

13. In his application, Oliver indicates that in his view, Jonathan has a decision-making impairment due to cognitive decline, social isolation, age, and physical and economic dependency. He provides the following information as to why there is a need for a financial management order:

1. Jonathan was planning to sell real estate in East Sydney. He had signed a sales agreement with a real estate agent without consulting his “legal carer” or family members and had banned family members from contacting the real estate agent or his solicitor. Oliver considered that the sale was taking place without proper oversight.

2. Oliver believes that the solicitor and real estate agent were acting independently without instructions from Jonathan and that his father was being unduly influenced or manipulated.

3. Jonathan was planning to donate the proceeds from the sale to charity and would be left with insufficient funds for his lifestyle.

4. Oliver submits that Jonathan has a history of irresponsible financial dealings, including attempting to sell jointly owned property without telling his wife, misappropriating family funds to build a house in Greece that was later claimed by a cousin, losing $100,000 in legal action taken against a neighbour and donating $50,000 to charity.

14. In his application, Oliver said that he had not told Jonathan about the application because Jonathan lives upstairs from his divorced wife and he was concerned that Jonathan would “retaliate” against his former wife and family members.

Preliminary matter – “withdrawal” by Sharone

15. Despite references to Sharone as Jonathan’s “legal carer”, we are aware of no legal designation of her as such. However we accepted that she is a person who assists Jonathan by arranging services and support for him and is, therefore, a person who “has the care of” Jonathan as that role is defined in s 3D, Guardianship Act 1987 (NSW).

16. In an email dated 16 April 2025, Sharone identifies herself as an applicant in the matter. She states that “we” were worried that Jonathan was being exploited by the real estate agent and by his solicitor, but that Jonathan had taken their concerns into account. Jonathan was now being supported by Sharone “and the whole family”, he was taking advice and was no longer in a “vulnerable situation”. She states that “we” are withdrawing the application.

17. Sharone also submitted an Application for Withdrawal dated 16 April 2025.

18. In an email dated 23 April 2025, Oliver advises that Sharone might have withdrawn “under stress and confusion” but he (Oliver) wanted the proceedings to continue.

19. Sharone is not identified as an applicant in the application and Oliver did not seek to withdraw the application. Accordingly, we proceeded to hear the matter.

The adjournment on 23 April 2025

20. Jonathan was not present at the hearing on 23 April 2025. Oliver said that he did not have a telephone number for Jonathan, who, in any case, is profoundly deaf and would not be able to participate in the hearing by telephone.

21. Ms Kaiti said that she had not been able to speak to Jonathan. She was unable to telephone him and was unwilling to knock on his door as a stranger because documents submitted by the applicant referred to Jonathan as having been extremely anxious about an earlier legal proceeding and also referred to some possible family violence.

22. Oliver suggested that there was a risk to Jonathan’s financial affairs because of a sales agreement that he had signed regarding his East Sydney property and his proposal to donate the sale proceeds, leaving him with insufficient means to fund his lifestyle. Oliver said that he understood Jonathan to have signed the sales agreement without legal advice and lacking proficiency in the English language.

23. We were concerned that Jonathan might be unaware of the application and the proceedings. We contacted Jonathan’s solicitor, Mr Z. He said that he had acted for Jonathan in relation to the proposed sale of the East Sydney property and had issued a sales contract to the real estate agent. He undertook to advise NCAT if a sale was proposed. Oliver was not satisfied that this undertaking was sufficient to prevent an inappropriate sale and noted that the property could be sold by the real estate agents without notification to Mr Z.

24. We contacted the real estate company in East Sydney and we were advised that there had been no offer on the property.

25. As Jonathan was not present at the hearing, we were not able to assess his understanding of his financial affairs in general and the proposed sale of the East Sydney property in particular. Having regard to the concerns expressed by Oliver we decided to make an interim financial management order appointing the NSWTG to manage Jonathan’s affairs during a period of adjournment during which Mr Z undertook to advise Jonathan of the hearing and to encourage his attendance at the adjourned hearing.

Complaint about Ms Kaiti

26. In a letter to the Registrar dated 25 April 2025, Oliver records that Ms Kaiti made no attempt to speak to him until two hours before the hearing on 23 April 2025 and then proposed to work with Jonathan’s solicitor in respect of the current matter. Oliver notes that he has made a complaint to the Legal Services Commissioner regarding Mr Z.

27. We considered Oliver’s concerns but were not of the view that there was a need to remove Ms Kaiti as the separate representative. We reached this view for the following reasons:

1. Oliver had not told Jonathan about the application and in his application indicated a risk that Jonathan could “retaliate” against family members once aware of the hearing.

2. Oliver had provided no means of contacting Jonathan other than by attending at his home. Based on Oliver’s evidence, to do so without notice could constitute a risk to Ms Kaiti and also to Jonathan’s estranged wife who lived in the same building as Jonathan.

3. In an email dated 23 April 2025, Ms Kaiti contacted Oliver about the exchange of documents. In his email, Oliver indicates that he was overseas and would be participating remotely. In an email to Oliver and Sharone, Ms Kaiti indicates that she had not spoken to Jonathan, noting that he might not know about the application and noting comments about his possible reaction. She seeks information from Oliver and Sharone about their roles in respect of Jonathan and also seeks further information about allegations made concerning professionals taking advantage of Jonathan.

4. We accept that there were limited opportunities for Ms Kaiti to have further contact with Oliver. In any case, whilst it is common for a separate representative to seek the views and information of other parties, their primary responsibility is to assist the separately represented person to put his views.

5. Mr Z had undertaken to advise Jonathan of the proceedings and to facilitate his attendance at the hearing. We considered that under the circumstances noted in this section of these Reasons, it was appropriate Ms Kaiti seek access to Jonathan through Mr Z as other methods of contact were problematic.

Report of the NSWTG

28. In a report dated 2 May 2025, John Gregory of the NSWTG indicates that Jonathan is the sole owner of the East Sydney property and owns a property in Northwest Sydney as 50% tenant in common with his wife. The NSWTG has placed a caveat on the East Sydney property.

What did the Tribunal have to decide?

29. The questions to be considered by the Tribunal are:

• Is Jonathan incapable of managing his affairs?

• Is there a need for another person to manage Jonathan’s affairs and is it in his best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Is Jonathan incapable of managing his affairs?

30. The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]):

“Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests?

…

[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.”

31. In considering whether the person is “able” in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;

• support systems available to the person; and

• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, at [309].

32. We were provided with documents related to legal action taken by Jonathan in 2019 regarding a dispute with his neighbour. An email from a law firm indicates that the matter was settled on instructions from Jonathan as he was too ill to attend court, but Jonathan had not signed the deed of settlement. The email indicates that as Jonathan (and Sharone – to whom the email was addressed) were not willing to accept the advice of the firm, they would cease acting for them.

33. We are not satisfied that the information provided about this dispute or the unwillingness of Jonathan and Sharone to accept the advice of the legal representative in 2019 is of weight as evidence of Jonathan’s current inability to manage his affairs.

34. We were provided with a report of Ms Y, Psychologist, dated 12 June 2019.

1. Ms Y refers to Jonathan as having an adjustment disorder and depression precipitated by an ongoing court case. Jonathan was stressed and was not sleeping. He had sought a letter to support an application to adjourn the matter. However Ms Y encouraged him to attend the hearings and to bring about a finalisation of the matter.

2. Ms Y records that Jonathan appeared oriented to time, place and people, was appropriately attired, and his memory appeared intact. There was no report of delusions or hallucinations. He appeared to lack motivation. Jonathan’s presentation was consistent with a diagnosis of adjustment order with depressed and anxious mood and with a depressive disorder.

35. We were not satisfied that Ms Y’s assessment of Jonathan’s presentation in that context of legal action some six years ago was of weight as evidence of his current ability to manage his financial affairs.

36. Oliver also provided an excerpt that appears to be part of a property settlement between Jonathan and his former wife in 1999 that refers to property in Greece that was to be given to Jonathan’s children. Oliver claims that Jonathan gave that property away. During the hearing Jonathan told us that the property was owned by family members. We had no evidence of any legal proceedings regarding this matter, much less any legal outcome. With very limited available information about this Greek property issue, we reached no determination about it and placed no weight on it as evidence of Jonathan’s inability to manage his affairs.

37. Oliver also provided copies of letters and notes from Jonathan to his estranged wife regarding proposals to sell their house in which they are tenants in common. Whilst the letters appear to evidence Jonathan’s lack of proficiency with the English language, we are not satisfied that they provide evidence of an inability to manage his affairs.

38. In a letter dated 29 April 2025, in support of appointing Oliver as a financial manager (and opposing the appointment of the NSWTG), Sharone makes statements to the following effect:

1. She has provided care for Jonathan since 2019 and has been aware that in the past few years, he has struggled to manage the East Sydney property.

2. She was initially opposed to Oliver managing Jonathan’s funds because she was of the view that she could assist Jonathan informally. Jonathan has put money into an account from which she can withdraw funds for daily needs and to pay regular outgoings.

39. In respect of the Sales Inspection Report and Auction Agency Agreement with the real estate agent, Oliver asserted the following:

1. There are blank sections on the form. This indicates that due to his impaired cognition, Jonathan had failed to ensure the completeness of the form.

2. The Property Summary provided by the real estate company demonstrates that Jonathan was receiving significantly less rent than the projected rent. This demonstrates poor financial management by Jonathan.

40. Oliver asserted that Clause 8 of the Sales Inspection Report and Auction Agency Agreement was left blank. However this was not the case in the copies that Oliver had provided to the Tribunal. Oliver also noted that the auction date was not completed. However we are satisfied that the property was not for auction, and so no date had been entered. We were not satisfied that there were significant omissions in the Sales Inspection Report and Auction Agency Agreement.

41. The Property Summary does indicate that there was potentially greater rent to be obtained from the property. Oliver also claims that the property could return a rental amount double that obtained by Jonathan. However we are provided with no evidence of the reliability of this estimate. Nor are we satisfied that seeking maximum rental is always the best commercial choice. In this respect we also noted evidence from Jonathan that the property is in need of repair. In the absence of further evidence we are not satisfied that the receipt of sub-maximum rent is an indication that Jonathan is not able to manage his affairs.

42. Oliver asserted that Jonathan was being exploited by Mr Z. In support of this view, he referred to:

1. what he described as a transcript of a conversation between Sharone and Jonathan in which Jonathan appears to express dissatisfaction with a solicitor whom he asserts is “against me”. However it is not clear who the conversation is about or what is being complained about. We do not accept this as evidence of exploitation by Mr Z of Jonathan.

2. claims that Mr Z had tricked Jonathan into paying $10,000 “upfront” as a marketing fee for the sale of the property and had told the real estate agent to make sure that they obtained their fees “upfront”. In respect of this matter:

1. Oliver sought to play a recording of a conversation about this matter. However we were not able to understand the words on the recording.

1. Mr Z denied the conversation with the real estate agent. In respect of the $10,000 marketing fee, Mr Z said in effect, that Jonathan had considered delaying paying the marketing fee, but Mr Z advised him that this would result in the real estate agent arranging a loan to Jonathan for the sum and this would entail interest. Jonathan had decided to pay the amount upfront.

2. We do not consider it unusual that marketing fees for a commercial real estate sale are sought as an ‘upfront’ payment and we accept Mr Z’s explanation of Jonathan’s decisions about this matter.

3. We are not satisfied that the issues around the payment of the marketing fee indicate that Jonathan is not able to manage his affairs, or that he is susceptible to exploitation.

43. In correspondence with Mr Z in March 2025, Oliver asserts that Mr Z is aware that Jonathan lacks capacity. He refers to Jonathan having “delusions and auditory hallucinations” and refers to making a complaint about Mr Z to the Legal Services Commissioner. For his part, Mr Z replies that he would discuss Oliver’s email with Jonathan and would do nothing if he thought Jonathan lacked capacity, and he had no such concerns. In relation to the assertion that Jonathan is subject to “delusions and auditory hallucinations” we note that in her report in 2019, Ms Y specifically indicates that there was no evidence of such issues.

44. Amongst other matters raised, Oliver asserts that Jonathan was proceeding with the sale of the East Sydney property without discussion with family members. However Oliver told us that the transcript he provided (see [42(1)]) was a recording of a conversation between Jonathan and Sharone. In that transcript, Jonathan appears to seek the assistance of Sharone. Further, Sharone has indicated that Jonathan places funds into an account that she can access to assist him with purchasing his household needs. We are not satisfied that Jonathan refuses to discuss his financial affairs with Sharone.

The Evidence of Jonathan

45. In a note dated 30 April 2025 in broken English that can nevertheless be understood, Jonathan states that Oliver was a real estate agent who let the East Sydney property to a “problems tenant” who paid with “fake Cheques” and cost him legal fees. In a further letter, Jonathan indicates the following:

1. He has seen Oliver only twice in 40 years. He believes that Oliver has taken this action to prevent him donating his money to the Children’s Hospital.

2. Since Oliver was a child, Jonathan has had problems with him. The problems have caused discord with his former wife.

3. He purchased the East Sydney property with money obtained from workers compensation after he injured his back. He is selling the property because the lease ends in four months, and the property needs repairs. He will be left without income once the property is vacated. He intends to keep 50% of the sale price of the property to fund his future needs.

46. During the hearing, Jonathan said that initially when he purchased the East Sydney property he put in joint names with him owning one half and his wife and daughter, one quarter each. (Mr Z clarified that Jonathan had later bought out his wife and daughter). He said that apart from a small pension of $10,000 from superannuation, the rental income from the property is his only income. However the tenant would be vacating the property, and he had decided to sell the property. He would support Sharone, whom he described as ‘disabled’ and a ‘disabled’ grandchild, and would donate money to charity.

47. When asked about the possible sale price for the East Sydney property, Jonathan said that he had received three quotes; two suggesting $2.5M and one suggesting $3M. He said that for many years he has donated to charity, and he would use 40% of the sale price to meet his needs and those of his daughter and grandson and would gift 30% each to the Sydney Hospital and to the Smith Family. He knew that he would need to pay tax when he sold the East Sydney property. He has a tax accountant in Lower North Shore Sydney and paid $1200 tax in the previous financial year.

48. Jonathan told us that:

1. He had travelled to the Tribunal premises in the city alone using two buses.

2. If he needs help at home, he seeks it from his daughter.

3. He did not believe that he needed to plan his financial affairs to allow for residential aged care because he would be able to continue to rely on his daughter for assistance.

4. He currently receives $80,000 per year income from the East Sydney property and $10,000 in a superannuation pension. His expenses are $30,000 per year.

5. He is able to manage his own financial affairs.

49. We were satisfied that Jonathan understood and had considered his options around the sale of the East Sydney property and having regard to the end of the lease and need for repairs to the property his decision to sell was a reasonable one. We were also satisfied that he understood the possible sale price and had clear views about what to do with the proceeds of the sale. Whilst Oliver was of the view that Jonathan would leave himself with insufficient funds, we are satisfied that having regard to his age and expenses, Jonathan’s calculations and intentions about dispersal of the sale proceeds are reasonable.

The views of the separate representative

50. It was Ms Kaiti’s submission that Jonathan is not unable to manage his affairs.

Conclusion

51. It is a long-established common law principle that a person is presumed to have capacity. We were not satisfied that the evidence before us is sufficient to overturn that presumption in the case of Jonathan. We formed this view for the following reasons

1. The information provided regarding his dispute with Jonathan’s neighbour indicated that Jonathan had lost that matter and was required to pay costs. We are not satisfied that the information provided about that matter evidences Jonathan’s inability to manage his affairs. Nor are we satisfied that diagnoses of depression and anxiety at the time of that matter has bearing on Jonathan’s current ability to manage his affairs. Whilst Oliver asserts that Jonathan is subject to delusions and hallucinations, Ms Y’s report from the time of the dispute indicate that she saw no evidence of those issues.

2. The evidence about dealings with property in Greece is inconclusive. Furthermore, we do not consider that the information provided about these matters reflects Jonathan’s ability to manage his affairs.

3. Jonathan recalled, and provided credible accounts about, issues around the 2019 proceedings involving a neighbour and about the real estate in Greece.

4. The issues that Oliver identified with the Sales Inspection and Auction Agency Agreement are either misconceived or insignificant.

5. Concerns expressed that Jonathan has entered into a sale agreement without adequate consultation are not borne out in the evidence that he has consulted his solicitor and has an accountant who assists with his taxation affairs. The transcript provided also suggests that he has spoken to Sharone about this matter.

6. Jonathan was able to describe his decision-making process regarding the sale of the East Sydney property and his intentions in relation to the sale proceeds. We noted that in the letter of 30 April 2025, he indicated that he would keep 50% of the sale price for his own purposes and in his oral evidence, he indicated that he would keep 40%. We were satisfied that this was a reasonable change of mind and does not indicate lack of financial capability.

7. Jonathan was also able to explain his poor relationship with the applicant, and the reasons why he would not seek his assistance.

8. Jonathan has demonstrated that he understands the proposed sale and likely proceeds and has reasonable plans about disbursement of the sale proceeds. He was able to discuss with us the likely tax on the sale of the property.

9. We are not satisfied that the receipt of less than maximum rent for the East Sydney property is, by itself, evidence of lack of financial management ability, particularly having regard to Jonathan’s evidence that the property is need of repair.

10. Jonathan was able to travel alone by public transport involving two buses from the suburbs to the city for the hearing. In our view this is an indication of his general ability to plan and carry out plans, despite his advanced age.

52. Oliver has provided examples of Jonathan’s financial decision-making that he considers demonstrate that Jonathan lacks the ability to manage his affairs. However, having considered the issues raised by Oliver, both as individual issues and cumulatively, we are not satisfied that they demonstrate that Jonathan is unable to manage his affairs.

53. We accept that Oliver might make decisions about the East Sydney property that are different from those made by Jonathan. We also accept that Jonathan’s intention of donating a significant sum to charity whilst he is alive, is unusual and that Oliver opposes that intention. However so long as Jonathan is able to manage his affairs, he is free to make his own decisions about these matters.

54. We are not satisfied that Jonathan is unable to manage his affairs. Having reached this conclusion, we dismissed the application for financial management.

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

Registrar

Decision last updated: 10 September 2025