KDG - [2018] NSWCATGD 13

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KDG [2018] NSWCATGD 13
Hearing dates: 27 June 2018
Date of orders: 27 June 2018
Decision date: 27 June 2018
Jurisdiction: Guardianship Division
Before: V Massey, Senior Member (Legal)
W Longley, Senior Member (Professional)
I Ferreira, General Member Community
Decision:
1. The application for a guardianship order with respect to KDG is dismissed because KBI has withdrawn the application and the Tribunal consents.

2. The estate of KDG is subject to the management under the NSW Trustee and Guardian Act 2009.

3. BMM and KBI are appointed jointly and severally as the financial managers of the estate.
NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:
GUARDIANSHIP – application for guardianship order – need for an order – FACS tenancy policy – execution of a residential tenancy agreement a matter relating to management of an estate – no authority to authorise a guardian to execute a residential tenancy agreement – withdrawn and dismissed
FINANCIAL MANAGEMENT – application for financial management order – need for orders to execute residential tenancy agreement– authority of a manger to execute documents – financial manager appointed
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 3, 3E(1), 4, 14, 14(2), 25E, 25F(2)-(3), 25M, 33A(4), 40; pts 3, 3A
NSW Trustee and Guardian Act 2009 (NSW), ss 25E, 21(2A), 38, 66, 67
Residential Tenancies Act 2010 (NSW)
Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503
HH v HI and Protective Commissioner [2009] NSWADTAP 41
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
M v M [2013] NSWSC 1495
MN v AN (1989) 16 NSWLR 525
MQH [2018] NSWCATGD 11
NVQ [2016] NSWCATGD 38
Texts Cited: Family and Community Services, “Starting a Tenancy Policy” (22 February 2016)
Category: Principal judgment
Parties:
001: Guardianship Application

KDG (the person)
KBI (carer and applicant)
BMM (carer)
NSW Public Guardian
002: Financial Management Application
KDG (the person)
KBI (carer and applicant)
BMM (carer)
NSW Trustee and Guardian
Representation: Nil

File Number(s): NCAT 2018/00099549
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

GUARDIANSHIP APPLICATION

What the Tribunal decided

The Tribunal dismissed the application appointment of a guardian for KDG made by KBI because the applicant withdrew the application and the Tribunal consents.

Background

KDG is a 25-year-old man who lives in a house in southwest Sydney rented from Family and Community Services (FACS) Housing. KDG lives with his twin brother, LNG.
KDG’s parents are his mother, KBI, and his father, TUI. KDG has two brothers, LNG, and SMK, and a sister, MSI.
On 29 March 2018, the Tribunal received an application for the appointment of a guardian for KDG. The applicant…

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 KDG

Details

AGLC: KDG [2018] NSWCATGD 13
Case: [2018] NSWCATGD 13
Decision Date: 27 June 2018

CaseChat Overview and Summary

The matter involved an application for a guardianship and financial management order concerning KDG. The application was made by KBI, who sought to become KDG's guardian to enable the execution of a residential tenancy agreement. The Family and Community Services (FACS) tenancy policy required that a person be appointed as KDG's guardian to execute the agreement. The court had to determine if there was a need for such an order and whether the proposed guardians had the requisite authority to execute the tenancy agreement.

The primary legal issue before the court was whether there was a need for an order to be made in respect of KDG's guardianship and financial management. Specifically, the court needed to consider if the execution of a residential tenancy agreement was a matter relating to the management of KDG's estate. Additionally, the court needed to assess the authority of the proposed guardians to execute such an agreement. The court examined the relevant statutory provisions and case law to determine if the execution of the tenancy agreement was indeed a matter relating to the management of KDG's estate.

The court found that the execution of a residential tenancy agreement was not a matter relating to the management of KDG's estate. It was concluded that the guardianship order was not necessary for this purpose. Furthermore, the court held that FACS did not have the authority to appoint a guardian to execute a residential tenancy agreement. Consequently, the application for a guardianship order was withdrawn, and the court dismissed it. However, the application for a financial management order was successful. BMM and KBI were appointed jointly and severally as financial managers of KDG's estate, but they could not deal with the estate until they obtained all necessary authorities from the NSW Trustee and Guardian.

The court made orders dismissing the application for a guardianship order and appointing BMM and KBI as financial managers of KDG's estate. The court emphasised that the financial managers could not deal with the estate until they obtained all necessary authorities from the NSW Trustee and Guardian. The estate of KDG was subject to management under the NSW Trustee and Guardian Act 2009.

Orders

Orders of the court

1. The application for a guardianship order with respect to KDG is dismissed because KBI has withdrawn the application and the Tribunal consents.

2. The estate of KDG is subject to the management under the NSW Trustee and Guardian Act 2009.

3. BMM and KBI are appointed jointly and severally as the financial managers of the estate.

NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	KDG [2018] NSWCATGD 13
Hearing dates:	27 June 2018
Date of orders:	27 June 2018
Decision date:	27 June 2018
Jurisdiction:	Guardianship Division
Before:	V Massey, Senior Member (Legal) W Longley, Senior Member (Professional) I Ferreira, General Member Community
Decision:	1. The application for a guardianship order with respect to KDG is dismissed because KBI has withdrawn the application and the Tribunal consents. 2. The estate of KDG is subject to the management under the NSW Trustee and Guardian Act 2009. 3. BMM and KBI are appointed jointly and severally as the financial managers of the estate. NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for guardianship order – need for an order – FACS tenancy policy – execution of a residential tenancy agreement a matter relating to management of an estate – no authority to authorise a guardian to execute a residential tenancy agreement – withdrawn and dismissed FINANCIAL MANAGEMENT – application for financial management order – need for orders to execute residential tenancy agreement– authority of a manger to execute documents – financial manager appointed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 3, 3E(1), 4, 14, 14(2), 25E, 25F(2)-(3), 25M, 33A(4), 40; pts 3, 3A NSW Trustee and Guardian Act 2009 (NSW), ss 25E, 21(2A), 38, 66, 67 Residential Tenancies Act 2010 (NSW)
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 HH v HI and Protective Commissioner [2009] NSWADTAP 41 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 MN v AN (1989) 16 NSWLR 525 MQH [2018] NSWCATGD 11 NVQ [2016] NSWCATGD 38
Texts Cited:	Family and Community Services, “Starting a Tenancy Policy” (22 February 2016)
Category:	Principal judgment
Parties:	001: Guardianship Application KDG (the person) KBI (carer and applicant) BMM (carer) NSW Public Guardian 002: Financial Management Application KDG (the person) KBI (carer and applicant) BMM (carer) NSW Trustee and Guardian
Representation:	Nil
File Number(s):	NCAT 2018/00099549
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).