KE v Protective Commissioner (No3)

[2005] NSWADT 52

CITATION:	KE v Protective Commissioner (No3) [2005] NSWADT 52 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT KE RESPONDENT Protective Commissioner
FILE NUMBER:	043346
HEARING DATES:	21/12/2004
SUBMISSIONS CLOSED:	12/21/2004
DATE OF DECISION:	03/08/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Protected Estates Act 1983
CASES CITED:	KE -v- Protective Commissioner [2004] NSWADT 59 KE -v- Protective Commissioner (No 2) [2005] NSWADT 51
REPRESENTATION:	APPLICANT In person RESPONDENT T Tunbridge, solicitor
ORDERS:	1. Application dismissed; 2. Decision under review affirmed

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1 The applicant has applied for review of the Protective Commissioner’s decision to sell one of her properties, exercising the right given by s 28A of the Protected Estates Act 1983 (the Act). The Protective Commissioner’s power to sell property under management is expressly recognised by s 24(2)(f) of the Act.

2 The applicant is a person under the guardianship of the Public Guardian and her financial affairs are managed by the Protective Commissioner. She is 69 years of age with an estimated life expectancy of 17 years. She is presently being provided with 24 hour nursing care at home.

3 As at January 2004, she owned five residential properties. While her capital assets are significant, her income is low relative to her needs as assessed by the Protective Commissioner. Consequently the Protective Commissioner has moved to dispose of some of the properties in order to generate sufficient income to meet those needs. The Protective Commissioner decided to sell two of the five properties, being 1 Miller Street, Petersham and 6 Porter Avenue, Marrickville. The applicant applied for review of that decision. The Tribunal stayed the sale of 6 Porter Avenue but declined to stay the sale of 1 Miller Street, Petersham: see KE -v- Protective Commissioner [2004] NSWADT 59 (matter no. 043013). It was sold in May 2004 for $755,000. The decision was formally affirmed in KE -v- Protective Commissioner(No 2) [2005] NSWADT 51 (ex tempore decision, 10 September 2004).

4 In light of observations made by the Tribunal in its decision dealing with the stay application (see further KE No 2), the Protective Commissioner reconsidered the question of whether it was necessary to dispose of another property. In a decision made by his delegate on 3 September 2004 and later confirmed by the Protective Commissioner himself on internal review, the Commissioner decided not to proceed to sell 6 Porter Avenue but instead to sell 3 Miller Street, the neighbouring property to 1 Miller Street.

5 The applicant’s present application for review concerns that decision. There is a stay order in place in relation to the sale of 3 Miller Street pending this decision.

6 As at September 2004, following on the sale of 1 Miller Street, the applicant’s fund held, approximately, $600,000. At present her annual expenses are estimated by the Protective Commissioner at $341,635, the main components of which are $260,000 for attendant care, storage fees of $19,200, property outgoings of $30,000 and management fees of $18,755. It is apparent that if all her properties were sold there would only be enough funds available to support about nine years’ care at the present level.

7 In the earlier proceedings the applicant had legal representation. On this occasion she has represented herself.

8 The Tribunal has before it the reasons for decision made on internal review by the Protective Commissioner dated 1 October 2004, detailed affidavit and other material relevant to that decision, and written submissions received 25 November 2004 from the applicant. The hearing was held on 21 December 2004, with the applicant participating by telephone from her home.

9 The Commissioner has had regard to the following considerations:

(i) the consistent, strongly expressed wish of the applicant that none of her properties be sold, and in particular that 3 Miller Street is of special importance to her

(ii) the desirability of allowing the applicant to receive care at home (she lives in one of the properties, which is at Brighton-le-Sands)

(iii) the likelihood that the present funds, if not replenished, will be exhausted by mid-2006

(iv) there are three properties (apart from Brighton-le-Sands) – 3 Miller Street, 6 Porter Avenue and a unit – which could provide funds

(v) all need substantial work to put them into good, tenantable condition

(vi) 3 Miller Street needs the most work, estimated at $282,000; Porter Avenue needs about $144,000 spent and the unit needs about $33,000 spent

(vii) given the potential rent return after renovation, it would be more prudent financially to retain Porter Avenue and the unit, rather than 3 Miller Street, though Porter Avenue and 3 Miller Street would fetch about the same price as unrenovated properties and also about the same price as renovated properties

(viii) while financially, possibly the best outcome would be the sale of all properties (other than Brighton-le-Sands) and the investment of the proceeds in growth assets, regard should be had to the applicant’s strongly expressed wishes in relation to retention of the properties;

(ix) in the circumstances the most prudent course is to dispose of 3 Miller Street in unrenovated condition thereby generating an additional $755,000 (estimated), with approximately $177,000 being applied to the repair of Porter Avenue and the unit, which could then be expected to generate rental incomes of about $50,000 per annum in total.

10 On its face this analysis is a sound one.

11 At hearing the Protective Commissioner filed reports from builders and estate agents who had provided the advice reflected in the above estimates and calculations.

12 In her correspondence and in her submissions at hearing, the applicant made the following objections:

(i) that no action was required for the time being as there was a substantial amount in her fund

(ii) that 6 Porter Avenue could, as it is, obtain $400 rent per week

(iii) that she knows someone who could fix up Miller Street for $100,000

(iv) that there are drainage issues affecting Miller Street

(v) that 3 Miller Street was her whole family’s favourite place.

13 There were also comments critical in various respects of the conduct of the Protective Commissioner; and asserting that her capacities were such that she could manage her own affairs. She also provided the Tribunal with medical assessments from Dr Jean Lennane dated 2 June 2000 and from Dr I. K. Bailey dated 12 December 1997. The matter of capacity is one for the Guardianship Tribunal, and is not open to be revisited when reviewing decisions made under an order in force.

14 While the Tribunal acknowledges, as has the Protective Commissioner, the strength of the concerns felt by the applicant in relation to the sale of 3 Miller Street, there is, in the Tribunal’s view, a clear need for a further infusion of funds. For the reasons that commended themselves to the Protective Commissioner, the sale of 3 Miller Street is the better option and is in her best interests.

15 If 3 Miller Street is sold for around the amount estimated, there will by mid-2006 be approximately $550,000 in the estate account with the other two properties generating about $50,000 per annum. On the other hand the continuing costs outlined earlier will remain substantially unaffected (there will be a marginal reduction in property costs) at around $340,000 per annum. On these figures a further sale would be necessary by mid-2008.

Order

1. Application dismissed.

2. Decision under review affirmed.

21/03/2005 - to amend address - Paragraph(s) five