LK v NSW Trustee and Guardian

[2009] NSWADT 224

CITATION:

LK v NSW Trustee and Guardian [2009] NSWADT 224

DIVISION:

General Division

PARTIES:

APPLICANT
LK

FIRST RESPONDENT
NSW Trustee and Guardian

SECOND RESPONDENT
MS

FILE NUMBER:

093018

HEARING DATES:

27 May 2009

SUBMISSIONS CLOSED:

22 June 2009

 
DATE OF DECISION: 

25 August 2009

BEFORE:

Britton A - Deputy President

CATCHWORDS:

NSW Trustee-disposition of property

LEGISLATION CITED:

NSW Trustee and Guardian Act 2009
Administrative Decisions Tribunal Act 1997
Protected Estates Act 1983

CASES CITED:

YG & GG v Minister for Community Services [2002] NSWCA 247
McDonald v Guardianship Administration Board [1993] 1 VR 521

REPRESENTATION:

APPLICANT
T Cardillo, solicitor

FIRST RESPONDENT
T Tunbridge, solicitor

SECOND RESPONDENT
No appearance

ORDERS:

The Trustee’s decision to sell the subject property is affirmed.

1 LK, the applicant in these proceedings, applies to the Administrative Decisions Tribunal for review of the decision made by the NSW Trustee and Guardian (formerly the Protective Commissioner) to sell his mother’s house. In February 2008, the Guardianship Tribunal made orders that the estate of LK’s mother be committed to the management of the NSW Trustee.

2 LK submits that the NSW Trustee and Guardian has not established that his mother’s estate would benefit if the property was sold. He contends that his mother’s interests would be best served if the property was to be rented. He also argues that regard ought be given to the sentimental value the property holds for him.

3 LK’s brother, MS, sought and was granted leave to be joined to these proceedings. He strongly supports the decision to sell the house and contends that his brother’s opposition to the sale is motivated by self-interest.

4 When the application for review was lodged by LK, the Tribunal’s jurisdiction to review the decision to sell the property was conferred by the Protected Estates Act 1983, s 28A. That Act has now been repealed with effect from 1 July 2009 and replaced by the NSW Trustee and Guardian Act 2009 (the Trustee Act). Among other things, the Trustee Act abolished the office of Protective Commissioner and replaced it with the office of NSW Trustee and Guardian, which is referred to in that Act as the ‘NSW Trustee’. The Tribunal’s jurisdiction to review the subject decision is now contained in s 70 of the Trustee Act.

5 The savings and transitional provisions provide that anything done prior to the commencement of the Trustee Act under a corresponding provision of the former Act is taken to be done under the new Act. Similarly anything done by the Protective Commissioner is taken to have been done by the NSW Trustee and Guardian (Sched 1, cll 4 and 5). For convenience in these reasons I refer to both the old and new office as ‘the Trustee’.

Proceedings before the Tribunal

6 The matter was listed for hearing in Newcastle on 27 May 2009. The applicant and the Trustee each appeared and filed written submissions on 16 April 2009. The applicant’s mother did not participate in these proceedings.

7 MS lives in…