KZV - [2020] NSWCATGD 45

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KZV [2020] NSWCATGD 45
Hearing dates: 26 March 2020
Date of orders: 26 March 2020
Decision date: 26 March 2020
Jurisdiction: Guardianship Division
Before: R H Booby, Senior Member (Legal)
M E Burke, Senior Member (Professional)
P Davidson, General Member (Community)
Decision:
In relation to the enduring guardian appointment made by KZV on 13 December 2010 appointing EDU, HKU and KYU the Tribunal orders, directs or declares:
The appointment of EDU, HKU and KYU as an enduring guardian is confirmed.
In relation to the enduring power of attorney made by KZV on 13 December 2010 which appointed EDU, HKU and KYU as attorneys the Tribunal determines, orders or declares:
(a) not to carry out a review of the making of the enduring power of attorney;
(b) to carry out a review of the operation and effect of the enduring power of attorney.
The term of, or a power conferred by, the enduring power of attorney is varied by variation of paragraph 6(a) that provides that “My attorneys are authorised by the Power of Attorney to make decisions by way of a simple majority in the event of three or more attorneys and in the event of two or less attorneys then unanimously” to read: “My attorneys are authorised to make decisions unanimously.”
EDU is removed from office as an attorney.

Catchwords:
REVIEW OF ENDURING GUARDIANSHIP – review of an enduring guardianship – whether enduring guardianship appointment should be revoked – whether principal’s wishes not reflected in enduring guardianship appointment – three enduring guardians appointed - enduring guardian decisions to be made by a simple majority – no decisions to be made which cannot be made under existing appointment – not in subject person’s best interests to revoke appointment – appointment confirmed.
REVIEW OF ENDURING POWER OF ATTORNEY – whether the Tribunal should review the operation and effect of an enduring power of attorney – whether appointment was unworkable – principal’s resources depleted, action required to manage estate – principal successful in action brought against attorney – conflict of interest – not possible for attorney to pursue their own interests whilst pursuing interests of principal – not in the best interests of the principal that attorney remain appointed – enduring power of attorney varied – attorney removed.
INTERLOCUTORY – application for an adjournment – procedural fairness – hearing rule – whether an adjournment required to allow in-person support person, and further witnesses, to attend – whether adjournment required to allow in-person support to be provided to party with ADHD - guiding principle to facilitate the just, quick, and cheap resolution of the real issues – possible for witnesses to give evidence by telephone – possible for parties to participate by telephone – opportunities for private discussion given – substitute support person provided - not unusual for hearings to be conducted by telephone – insufficient reason for adjournment – application dismissed.

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), s…

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 KZV

Details

AGLC: KZV [2020] NSWCATGD 45
Case: [2020] NSWCATGD 45
Decision Date: 26 March 2020

CaseChat Overview and Summary

The matter before the court involved a review of an enduring guardianship and an enduring power of attorney, both appointed by KZV on 13 December 2010. Three enduring guardians, EDU, HKU, and KYU, were appointed, with decisions to be made by a simple majority. The enduring power of attorney also appointed EDU, HKU, and KYU, with decision-making authorised by a simple majority in the event of three or more attorneys, and unanimously in the event of two or less attorneys. The principal had successfully brought an action against EDU, who was also the attorney, raising issues of conflict of interest and unworkability. Additionally, an application for an adjournment was made, seeking to allow an in-person support person and further witnesses to attend.

The legal issues before the court included whether the enduring guardianship appointment should be revoked due to a perceived misalignment with the principal’s wishes, whether the enduring power of attorney was unworkable and should be reviewed, and whether procedural fairness was achieved in the context of an application for an adjournment. The court had to consider if it was in the best interests of the principal to revoke the enduring guardianship appointment, if the enduring power of attorney was unworkable and not in the principal’s best interests, and if an adjournment was required to ensure procedural fairness.

The court confirmed the appointment of EDU, HKU, and KYU as enduring guardians, finding that it was not in the subject person’s best interests to revoke the appointment. The court did not review the making of the enduring power of attorney but reviewed its operation and effect, finding it unworkable due to the conflict of interest and the principal's successful action against EDU. Consequently, the term of the enduring power of attorney was varied to require unanimous decisions, and EDU was removed from office as an attorney. Regarding the application for an adjournment, the court found that it was not necessary for the in-person support person and further witnesses to attend, as telephone participation was possible and opportunities for private discussion had been provided. The application for an adjournment was dismissed.

The court ordered the confirmation of the appointment of EDU, HKU, and KYU as enduring guardians, the variation of the enduring power of attorney to require unanimous decisions among the attorneys, and the removal of EDU from office as an attorney. The application for an adjournment was dismissed.

Orders

Orders of the court

In relation to the enduring guardian appointment made by KZV on 13 December 2010 appointing EDU, HKU and KYU the Tribunal orders, directs or declares:

The appointment of EDU, HKU and KYU as an enduring guardian is confirmed.

In relation to the enduring power of attorney made by KZV on 13 December 2010 which appointed EDU, HKU and KYU as attorneys the Tribunal determines, orders or declares:

(a) not to carry out a review of the making of the enduring power of attorney;

(b) to carry out a review of the operation and effect of the enduring power of attorney.

The term of, or a power conferred by, the enduring power of attorney is varied by variation of paragraph 6(a) that provides that “My attorneys are authorised by the Power of Attorney to make decisions by way of a simple majority in the event of three or more attorneys and in the event of two or less attorneys then unanimously” to read: “My attorneys are authorised to make decisions unanimously.”

EDU is removed from office as an attorney.

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:	KZV [2020] NSWCATGD 45
Hearing dates:	26 March 2020
Date of orders:	26 March 2020
Decision date:	26 March 2020
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal) M E Burke, Senior Member (Professional) P Davidson, General Member (Community)
Decision:	In relation to the enduring guardian appointment made by KZV on 13 December 2010 appointing EDU, HKU and KYU the Tribunal orders, directs or declares: The appointment of EDU, HKU and KYU as an enduring guardian is confirmed. In relation to the enduring power of attorney made by KZV on 13 December 2010 which appointed EDU, HKU and KYU as attorneys the Tribunal determines, orders or declares: (a) not to carry out a review of the making of the enduring power of attorney; (b) to carry out a review of the operation and effect of the enduring power of attorney. The term of, or a power conferred by, the enduring power of attorney is varied by variation of paragraph 6(a) that provides that “My attorneys are authorised by the Power of Attorney to make decisions by way of a simple majority in the event of three or more attorneys and in the event of two or less attorneys then unanimously” to read: “My attorneys are authorised to make decisions unanimously.” EDU is removed from office as an attorney.
Catchwords:	REVIEW OF ENDURING GUARDIANSHIP – review of an enduring guardianship – whether enduring guardianship appointment should be revoked – whether principal’s wishes not reflected in enduring guardianship appointment – three enduring guardians appointed - enduring guardian decisions to be made by a simple majority – no decisions to be made which cannot be made under existing appointment – not in subject person’s best interests to revoke appointment – appointment confirmed. REVIEW OF ENDURING POWER OF ATTORNEY – whether the Tribunal should review the operation and effect of an enduring power of attorney – whether appointment was unworkable – principal’s resources depleted, action required to manage estate – principal successful in action brought against attorney – conflict of interest – not possible for attorney to pursue their own interests whilst pursuing interests of principal – not in the best interests of the principal that attorney remain appointed – enduring power of attorney varied – attorney removed. INTERLOCUTORY – application for an adjournment – procedural fairness – hearing rule – whether an adjournment required to allow in-person support person, and further witnesses, to attend – whether adjournment required to allow in-person support to be provided to party with ADHD - guiding principle to facilitate the just, quick, and cheap resolution of the real issues – possible for witnesses to give evidence by telephone – possible for parties to participate by telephone – opportunities for private discussion given – substitute support person provided - not unusual for hearings to be conducted by telephone – insufficient reason for adjournment – application dismissed.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s…