MQN (No 2) - [2018] NSWCATGD 47

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MQN (No 2) [2018] NSWCATGD 47
Hearing dates: 7, 8 and 9 February 2018
Date of orders: 07 September 2018
Decision date: 07 September 2018
Jurisdiction: Guardianship Division
Before: A R Boxall, Senior Member (Legal)
S A McSwiggan, Senior Member (Professional)
L Stewart, General Member (Community)
Decision:
1. The Tribunal gave leave for NZG and MBL to be represented by Mrs Madeleine Gilmour, barrister

2. The Tribunal gave leave for MBL to be represented by Mr John Warburton, solicitor.

3. The Tribunal gave leave for DVN to be represented by Mr Todd Alexis SC.

4. The Tribunal ordered that the document dated 23 January 2018 and entitled Confidential Summary of Respondent’s Assets and Liabilities filed by DVN be kept confidential to the Tribunal and not be available for inspection by any party.

5. The Tribunal dismissed NZG’s and MBL’s application of 28 January 2018, that DVN provide a copy of that document to them.

6. The guardianship application for MQN was dismissed because NZG has withdrawn the application and the Tribunal consents.

7. The Tribunal dismissed the financial management application for MQN.

8. The Tribunal decided under section 36 of the Powers of Attorney Act 2003 to undertake a review of the enduring power of attorney dated 15 July 2011 granted by MQN.
9. The Tribunal dismissed the application to review the enduring power of attorney dated 15 July 2011 granted by MQN.
Catchwords:
FINANCIAL MANAGEMENT – application for a financial management order – whether there is a need for a financial management order – large and complex estate – where existing arrangements are informal – existing arrangements meeting the subject person’s needs – s 4 principles – where subject person’s views can be inferred – importance of preserving the subject person’s family relationships and cultural and linguistic environment – protection of the subject person from abuse, neglect and exploitation – subject person’s welfare and interests – whether a conflict of interest exists – where subject person’s welfare and interests are not served by a change in current arrangements – where subject person’s welfare and interests are best served by retaining the current arrangements – application for a financial management order dismissed.

ENDURING POWER OF ATTORNEY – requested review of an enduring power of attorney – review of making of an enduring power of attorney – sufficient explanation of enduring power of attorney – linguistic diversity – source of instructions for creation of enduring power of attorney – whether subject person exercised independent judgment in granting the enduring power of attorney – evidence insufficient to establish that the enduring power of attorney is not a true expression of the subject person’s wishes – application dismissed.
ENDURING POWER OF ATTORNEY – requested review of an enduring power of attorney – review of the operation and effect of an enduring power of attorney – evidence insufficient to establish a reason for the Tribunal to intervene – application dismissed.
Legislation Cited: Civil…

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 MQN (No 2)

Details

AGLC: MQN (No 2) [2018] NSWCATGD 47
Case: [2018] NSWCATGD 47
Decision Date: 07 September 2018

CaseChat Overview and Summary

The case of MQN (No 2) involved an application for a financial management order for MQN, a large and complex estate managed informally. The application was made by NZG and MBL, and opposed by DVN. The matter was heard by the Tribunal, which had to determine whether there was a need for a financial management order. The Tribunal was also required to review an enduring power of attorney granted by MQN dated 15 July 2011, following an application by DVN.

The primary legal issues before the Tribunal were whether a financial management order was necessary for MQN, and whether the enduring power of attorney should be reviewed. The Tribunal had to consider the principles of the Act, including the importance of preserving MQN's family relationships and cultural and linguistic environment, as well as protecting MQN from abuse, neglect, and exploitation. The Tribunal also needed to assess whether there was a conflict of interest and whether MQN's welfare and interests were best served by retaining the current arrangements.

The Tribunal found that there was no need for a financial management order as the existing informal arrangements were meeting MQN's needs. The Tribunal noted that MQN's views could be inferred, and that these arrangements were in line with the principles of the Act. The Tribunal also found that there was insufficient evidence to establish that the enduring power of attorney was not a true expression of MQN's wishes, and that there was no reason for the Tribunal to intervene in the operation and effect of the enduring power of attorney. Consequently, the Tribunal dismissed the application for a financial management order and the application to review the enduring power of attorney.

The Tribunal gave leave for NZG and MBL to be represented by Mrs Madeleine Gilmour, barrister, and for MBL to be represented by Mr John Warburton, solicitor. DVN was represented by Mr Todd Alexis SC. The Tribunal also ordered that a document filed by DVN be kept confidential. The Tribunal dismissed the application for a copy of that document and the guardianship application for MQN. Finally, the Tribunal dismissed the financial management application for MQN and the application to review the enduring power of attorney.

Orders

Orders of the court

1. The Tribunal gave leave for NZG and MBL to be represented by Mrs Madeleine Gilmour, barrister

2. The Tribunal gave leave for MBL to be represented by Mr John Warburton, solicitor.

3. The Tribunal gave leave for DVN to be represented by Mr Todd Alexis SC.

4. The Tribunal ordered that the document dated 23 January 2018 and entitled Confidential Summary of Respondent’s Assets and Liabilities filed by DVN be kept confidential to the Tribunal and not be available for inspection by any party.

5. The Tribunal dismissed NZG’s and MBL’s application of 28 January 2018, that DVN provide a copy of that document to them.

6. The guardianship application for MQN was dismissed because NZG has withdrawn the application and the Tribunal consents.

7. The Tribunal dismissed the financial management application for MQN.

8. The Tribunal decided under section 36 of the Powers of Attorney Act 2003 to undertake a review of the enduring power of attorney dated 15 July 2011 granted by MQN.

9. The Tribunal dismissed the application to review the enduring power of attorney dated 15 July 2011 granted by MQN.

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:	MQN (No 2) [2018] NSWCATGD 47
Hearing dates:	7, 8 and 9 February 2018
Date of orders:	07 September 2018
Decision date:	07 September 2018
Jurisdiction:	Guardianship Division
Before:	A R Boxall, Senior Member (Legal) S A McSwiggan, Senior Member (Professional) L Stewart, General Member (Community)
Decision:	1. The Tribunal gave leave for NZG and MBL to be represented by Mrs Madeleine Gilmour, barrister 2. The Tribunal gave leave for MBL to be represented by Mr John Warburton, solicitor. 3. The Tribunal gave leave for DVN to be represented by Mr Todd Alexis SC. 4. The Tribunal ordered that the document dated 23 January 2018 and entitled Confidential Summary of Respondent’s Assets and Liabilities filed by DVN be kept confidential to the Tribunal and not be available for inspection by any party. 5. The Tribunal dismissed NZG’s and MBL’s application of 28 January 2018, that DVN provide a copy of that document to them. 6. The guardianship application for MQN was dismissed because NZG has withdrawn the application and the Tribunal consents. 7. The Tribunal dismissed the financial management application for MQN. 8. The Tribunal decided under section 36 of the Powers of Attorney Act 2003 to undertake a review of the enduring power of attorney dated 15 July 2011 granted by MQN. 9. The Tribunal dismissed the application to review the enduring power of attorney dated 15 July 2011 granted by MQN.
Catchwords:	FINANCIAL MANAGEMENT – application for a financial management order – whether there is a need for a financial management order – large and complex estate – where existing arrangements are informal – existing arrangements meeting the subject person’s needs – s 4 principles – where subject person’s views can be inferred – importance of preserving the subject person’s family relationships and cultural and linguistic environment – protection of the subject person from abuse, neglect and exploitation – subject person’s welfare and interests – whether a conflict of interest exists – where subject person’s welfare and interests are not served by a change in current arrangements – where subject person’s welfare and interests are best served by retaining the current arrangements – application for a financial management order dismissed. ENDURING POWER OF ATTORNEY – requested review of an enduring power of attorney – review of making of an enduring power of attorney – sufficient explanation of enduring power of attorney – linguistic diversity – source of instructions for creation of enduring power of attorney – whether subject person exercised independent judgment in granting the enduring power of attorney – evidence insufficient to establish that the enduring power of attorney is not a true expression of the subject person’s wishes – application dismissed. ENDURING POWER OF ATTORNEY – requested review of an enduring power of attorney – review of the operation and effect of an enduring power of attorney – evidence insufficient to establish a reason for the Tribunal to intervene – application dismissed.
Legislation Cited:	Civil…