PV v NSW Trustee and Guardian

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

PV v NSW Trustee and Guardian [2011] NSWADTAP 37

Hearing dates:

5 August 2011

Decision date:

22 August 2011

Jurisdiction:

Appeal Panel - Internal

Before:

Magistrate N Hennessy, Deputy President
C Huntsman, Judicial Member
Dr B Field, Non-Judicial Member

Decision:

(1) Leave for the appeal to extend to the merits of the Tribunal's decision is refused.

(2) The Tribunal's decision is affirmed.

Catchwords:

APPEAL - question of law - procedural fairness - reasonable opportunity to present case - leave to extend appeal to the merits

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

Cases Cited:

K v K [2000] NSWSC 1052
Re R [2000] NSWSC 886
S v S [2001] NSWSC 146

Category:

Principal judgment

Parties:

PV (Appellant)
NSW Trustee and Guardian (Respondent)

Representation:

In person (Appellant)
C Phang, NSW Trustee and Guardian (Respondent)

File Number(s):

119017

 Decision under appeal 

Citation:

PV v NSW Trustee and Guardian [2011] NSWADT 89

Date of Decision:

2011-05-04 00:00:00

Before:

General Division

File Number(s):

103193

REASONS FOR DECISION

Introduction

1. APPEAL PANEL (N HENNESSY, LCM (DEPUTY PRESIDENT), C HUNTSMAN (JUDICIAL MEMBER), DR B FIELD (NON-JUDICIAL MEMBER)): PV has appealed against a decision of the Tribunal affirming a decision of the NSW Trustee and Guardian to sell his mother's house. The appeal is made on a question of law. PV also seeks leave for the appeal to be extended to the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997 ( ADT Act , s 113(2)).

1. PV's mother is now 94 years old and lives in a nursing home. The NSW Trustee and Guardian has been appointed to manage her financial affairs and to make decisions about where she is to live. On 6 November 2009 a decision was made to sell PV's mother's home for various reasons including that she was then living permanently in an aged care facility and the proceeds of the sale were needed to ensure that she had sufficient funds to meet her expenses. Following an internal review decision on 14 December 2009, the decision to sell the house was varied.

1. Essentially the varied decision was that, on the basis that PV and both of his brothers agreed to the property being leased at full market value, the sale of the property would be reviewed in 12 months time. Alternatively, if the property was left vacant, all three brothers could agree to accept the risk of the property being uninsured. The property would not be sold as long as $25,000 was deposited in PV's mother's trust account within 30 days.

1. PV communicated with the NSW Trustee and Guardian following this decision including by phone on 19 January 2010 and by letter on 22 January 2010. PV confirmed in the letter that he accepted the decision to pay $25,000 into his mother's account. The letter went on to seek clarification of various matters including whether a relative could rent the property and whether the $25,000 could be considered as an…