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

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.
On 3 April 2025, the Tribunal received a Financial Management application from Oliver proposing that he be appointed as financial manager for Jonathan.
On 11 April 2025, the Tribunal ordered that Jonathan be separately represented in the proceedings. Denise Kaiti was Jonathan’s separate representative.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jonathan (a pseudonym)

Details

AGLC: Jonathan (a pseudonym) [2025] NSWCATGD 11
Case: [2025] NSWCATGD 11
Decision Date: 09 May 2025

CaseChat Overview and Summary

In this matter, the court was called upon to consider an application for a financial management order concerning a 94-year-old man, referred to as Jonathan, who was alleged to be incapable of managing his financial affairs. The application was made in light of concerns about Jonathan's cognitive decline, social isolation, and his intention to sell his property. There were apprehensions that Jonathan might be manipulated and had not been adequately consulted regarding the sale.

The primary legal issue the court had to resolve was whether Jonathan was indeed incapable of managing his own finances. This involved considering the evidence of his previous financial mismanagement, his current mental health condition, and his ability to understand the implications of selling his property and to plan for the disbursement of the proceeds. The court also had to determine the weight to be given to the evidence of Jonathan's adjustment disorder and depression, which was attributed to court proceedings six years prior, and whether these factors sufficiently demonstrated an inability to manage his affairs.

After evaluating the evidence, the court concluded that Jonathan understood his options and the effects of selling his property, and that he had reasonable plans for the disbursement of the proceeds. The court found that the evidence did not sufficiently overturn the presumption of capacity. Consequently, the application for a financial management order was dismissed, resulting in the revocation of the interim financial management order that had been previously put in place.

The court's decision effectively reinstated Jonathan's autonomy over his financial affairs, recognising his capacity to make informed decisions regarding his property.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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.