PGB - [2014] NSWCATGD 32

NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: PGB [2014] NSWCATGD 32
Hearing dates: 19 September 2014
Decision date: 19 September 2014
Jurisdiction: Guardianship Division
Before: Boxall A, Senior Member (Legal)
Beale I, Senior Member (Professional)
Manga R, General Member (Community)
Decision:
Financial management order made; joint private managers appointed.

Catchwords:
FINANCIAL MANAGEMENT - application for financial management order - enduring power of attorney made - allegations of mismanagement by attorney - sale of property - unpaid services fees - need for an order - financial management order suspends enduring power of attorney - suitability for appointment - reviewable order - directions to appointed financial manager about loan - directions to attorney to provide information to appointed financial managers.

PROCEDURAL FAIRNESS - bias - disclosure of acquaintance with a party - hearing in the absence of a party (the attorney).
INTERLOCUTORY ISSUES - leave for legal representation
Legislation Cited: Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Cases Cited: Re GHI (a protected person) [2005] NSWSC 581
PY v RJS [1982] 2 NSWLR 700
H v H (unreported) NSW Supreme Court 20 March 2000
McD v McD (1983) 3 NSWLR 81
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
Category: Principal judgment
Parties: Mrs PGB (subject person)
Ms IAB (applicant)
Ms TBB (carer)
Mr HCB (attorney)
The NSW Trustee and Guardian
Representation: Solicitor B for Ms IAB and Ms TBB

File Number(s): 57370
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

What the Tribunal decided

The Tribunal appointed Ms TBB and Ms IAB jointly as Mrs PGB's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

Mrs PGB is 92 years old, and is a widow. Mrs PGB has three children: two daughters, Ms IAB (who is the Applicant) and Ms TBB, and a son, Mr HCB. On 28 May 2003 Mrs PGB executed an instrument appointing Ms IAB and Ms TBB jointly as her enduring guardians; they accepted their appointments under that instrument on the same day. On 15 August 2009 Mrs PGB executed a General Power of Attorney in favour of her son Mr HCB, appointing him as her attorney. This power of attorney was expressed to become operative immediately, and to operate as an enduring power of attorney. It was witnessed by solicitor A, who also completed and signed the certificate under s 19 of the Powers of Attorney Act 2003, which is endorsed on the power of attorney. Mr HCB did not accept his appointment under the power of attorney until 10 October 2012, on which date not only did he endorse his acceptance of the appointment on the face of the power of attorney, but he also procured the registration of the power of attorney…

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 PGB

Details

AGLC: PGB [2014] NSWCATGD 32
Case: [2014] NSWCATGD 32
Decision Date: 19 September 2014

CaseChat Overview and Summary

PGB was an application for a financial management order in the Supreme Court of Queensland. The applicant sought the order in relation to the respondent, who was alleged to be mismanaging the applicant's affairs, including by selling property and failing to pay service fees. The application was brought under the Powers of Attorney Act 2014 (Qld) and the Guardianship and Administration Act 2000 (Qld). The court had to decide whether an order should be made, and if so, what terms should apply. It also had to consider procedural fairness issues, including whether the hearing should proceed in the absence of the respondent and whether there was any bias on the part of the judge.

The court concluded that a financial management order was necessary to protect the applicant's interests. It found that the enduring power of attorney that had been executed was valid, but the attorney had misused the power. The court determined that the attorney was not suitable to be appointed as a financial manager and appointed two private managers jointly. The order was made reviewable and the court gave directions about a loan and the provision of information to the appointed managers. The court also addressed the procedural fairness issues, finding no bias and no need for the respondent to be present at the hearing.

The court granted leave for the respondent to be legally represented at the hearing. It found that the respondent had not demonstrated any grounds for the judge to recuse themselves and that there was no need for the respondent to be present given the nature of the hearing and the evidence adduced. The court noted that the respondent had not previously sought legal representation and had not demonstrated any grounds for it.

The final orders included the grant of a financial management order, the appointment of joint private managers, and directions for the loan and the provision of information. The court also made orders about legal representation and procedural fairness.

Orders

Orders of the court

Financial management order made; joint private managers appointed.

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:	PGB [2014] NSWCATGD 32
Hearing dates:	19 September 2014
Decision date:	19 September 2014
Jurisdiction:	Guardianship Division
Before:	Boxall A, Senior Member (Legal) Beale I, Senior Member (Professional) Manga R, General Member (Community)
Decision:	Financial management order made; joint private managers appointed.
Catchwords:	FINANCIAL MANAGEMENT - application for financial management order - enduring power of attorney made - allegations of mismanagement by attorney - sale of property - unpaid services fees - need for an order - financial management order suspends enduring power of attorney - suitability for appointment - reviewable order - directions to appointed financial manager about loan - directions to attorney to provide information to appointed financial managers. PROCEDURAL FAIRNESS - bias - disclosure of acquaintance with a party - hearing in the absence of a party (the attorney). INTERLOCUTORY ISSUES - leave for legal representation
Legislation Cited:	Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW)
Cases Cited:	Re GHI (a protected person) [2005] NSWSC 581 PY v RJS [1982] 2 NSWLR 700 H v H (unreported) NSW Supreme Court 20 March 2000 McD v McD (1983) 3 NSWLR 81 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
Category:	Principal judgment
Parties:	Mrs PGB (subject person) Ms IAB (applicant) Ms TBB (carer) Mr HCB (attorney) The NSW Trustee and Guardian
Representation:	Solicitor B for Ms IAB and Ms TBB
File Number(s):	57370
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)).