MBC - [2016] NSWCATGD 36

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MBC [2016] NSWCATGD 36
Hearing dates: 15 February 2016
Date of orders: 15 February 2016
Decision date: 15 February 2016
Jurisdiction: Guardianship Division
Before: C Murray, Senior Member (Legal)
M Matheson, Senior Member (Professional)
F Given, General Member (Community)
Decision:
Enduring power of Attorney; reviewed the enduring power of attorney and decided not to make order.
Financial management; treated application for review of the enduring power of attorney as an application for a financial management order, NSW Trustee and Guardian appointed as manager.
Catchwords:
REVIEW OF ENDURING POWER OF ATTORNEY – Tribunal decided not to make an order under s 36(2) of the Powers of Attorney Act 2003 (NSW) – treated the application for review as an application for a financial management order pursuant to s 37
FINANCIAL MANAGEMENT – subject person resides overseas – property assets in NSW – conflict between several attorneys – complicated financial affairs – NSW Trustee and Guardian appointed
Legislation Cited: Guardianship Act 1987 (NSW), Part 3A; ss 3(2), 4, 25G, 25F(d), 25M
NSW Trustee and Guardian Act 2009 (NSW), s 39
Powers of Attorney Act 2003 (NSW), ss 35(1)(a), 36, 36(1), 36(2), 36(4), 37, 50(3)
Cases Cited: Holt v Protective Commissioner (1993) 31 NSWLR 227
Parker v Higgins [2012] NSWSC 1516
Category: Principal judgment
Parties: Mr MBC (principal under the enduring power of attorney)
Mr TWC (applicant and attorney under the enduring power of attorney)
Ms LDC (attorney under the enduring power of attorney)
NSW Trustee and Guardian
Representation: Nil

File Number(s): 61210
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

APPLICATION TO REVIEW AN ENDURING POWER OF ATTORNEY

APPLICATION FOR A FINANCIAL MANAGEMENT ORDER

Contents

These Reasons for Decision are arranged under the following headings:

What the Tribunal decided

Background concerning Mr MBC

The hearing

The legislative framework governing the Tribunal’s power

Evidence before the Tribunal

What did the Tribunal have to decide?

The application to review the enduring power of attorney

The application for a financial management order

THE APPLICATION TO REVIEW THE ENDURING POWER OF ATTORNEY

Should the Tribunal undertake a review of the enduring power of attorney?

Should the Tribunal make an order under s 36 of the Powers of Attorney Act 2003 (NSW)?

If so, what order should the Tribunal make?

If not, should the Tribunal treat the application for the review as an application for a financial management order under Part 3A of the Guardianship Act 1987 (NSW)?

THE APPLICATION FOR A FINANCIAL MANAGEMENT ORDER

Is Mr MBC incapable of managing his own affairs?

Is there a need for another person to manage Mr MBC’s affairs and is it in his best interests for a financial management order to be made?

Who should be appointed as financial manager?

Notation in the Tribunal’s orders

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.

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Details

AGLC: MBC [2016] NSWCATGD 36
Case: [2016] NSWCATGD 36
Decision Date: 15 February 2016

CaseChat Overview and Summary

The case involved an application for review of an enduring power of attorney, which was subsequently treated as an application for a financial management order. The parties were the subject person, who resides overseas, and various attorneys and interested parties with property assets in New South Wales. The dispute centred on the validity and effectiveness of the enduring power of attorney, given the subject person's overseas residence and the conflicting interests of the attorneys involved.

The primary legal issues before the court were whether to review the enduring power of attorney under section 36(2) of the Powers of Attorney Act 2003 (NSW), and if not, to treat the application as a request for a financial management order under section 37 of the same Act. The court had to consider the complexity of the subject person's financial affairs, the presence of conflicting attorneys, and the implications of the subject person's overseas residency on the administration of their financial affairs.

The court determined that it would not review the enduring power of attorney under section 36(2), as the application was more appropriately treated as a request for a financial management order. Given the subject person's overseas residence and the conflicting interests of the attorneys, the court appointed the New South Wales Trustee and Guardian as the manager of the subject person's financial affairs. This decision was made to ensure that the subject person's financial interests were properly managed and protected.

The court's final orders were to review the enduring power of attorney and decide not to make an order, and to treat the application for review as an application for a financial management order, appointing the New South Wales Trustee and Guardian as the manager of the subject person's financial affairs.

Orders

Orders of the court

Enduring power of Attorney; reviewed the enduring power of attorney and decided not to make order.

Financial management; treated application for review of the enduring power of attorney as an application for a financial management order, NSW Trustee and Guardian appointed as manager.

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:	MBC [2016] NSWCATGD 36
Hearing dates:	15 February 2016
Date of orders:	15 February 2016
Decision date:	15 February 2016
Jurisdiction:	Guardianship Division
Before:	C Murray, Senior Member (Legal) M Matheson, Senior Member (Professional) F Given, General Member (Community)
Decision:	Enduring power of Attorney; reviewed the enduring power of attorney and decided not to make order. Financial management; treated application for review of the enduring power of attorney as an application for a financial management order, NSW Trustee and Guardian appointed as manager.
Catchwords:	REVIEW OF ENDURING POWER OF ATTORNEY – Tribunal decided not to make an order under s 36(2) of the Powers of Attorney Act 2003 (NSW) – treated the application for review as an application for a financial management order pursuant to s 37 FINANCIAL MANAGEMENT – subject person resides overseas – property assets in NSW – conflict between several attorneys – complicated financial affairs – NSW Trustee and Guardian appointed
Legislation Cited:	Guardianship Act 1987 (NSW), Part 3A; ss 3(2), 4, 25G, 25F(d), 25M NSW Trustee and Guardian Act 2009 (NSW), s 39 Powers of Attorney Act 2003 (NSW), ss 35(1)(a), 36, 36(1), 36(2), 36(4), 37, 50(3)
Cases Cited:	Holt v Protective Commissioner (1993) 31 NSWLR 227 Parker v Higgins [2012] NSWSC 1516
Category:	Principal judgment
Parties:	Mr MBC (principal under the enduring power of attorney) Mr TWC (applicant and attorney under the enduring power of attorney) Ms LDC (attorney under the enduring power of attorney) NSW Trustee and Guardian
Representation:	Nil
File Number(s):	61210
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)).