Re Uf

Case [2017] NSWSC 437


Supreme Court


New South Wales

Medium Neutral Citation: Re UF [2017] NSWSC 437
Hearing dates: 8 March 2017
Decision date: 21 April 2017
Jurisdiction:Equity
Before: White J
Decision:

Order that order 5(b) of the guardianship order made by the NSW Civil and Administrative Tribunal on 31 March 2016 be set aside and the summons otherwise be dismissed.

Catchwords:

PROTECTIVE JURISDICTION – Guardianship Division of NSW Civil and Administrative Tribunal – whether guardianship order should be revoked – whether financial management order should be revoked – whether protected person was incapable of managing their affairs – whether tribunal failed to afford procedural fairness – whether tribunal failed to apply ss 4, 15(3), 25G of the Guardianship Act 1987 (NSW)

APPEALS – appeal to Court from Guardianship Division of NSW Civil and Administrative Tribunal – general principles – right of appeal – whether question of law was raised – whether leave to appeal ought to be granted – construction and operation of Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Guardianship Act 1987 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187
Collins v Urban [2014] NSWCATAP 17
D’Amore v Independent Commission Against Corruption [2013] NSWCA 187
EB v Guardianship Tribunal [2011] NSWSC 767
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; (2014) 96 ATR 875
H v H [2015] NSWSC 837
Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92
IA v TA [2016] NSWCA 179
In the Marriage of Bennett (1990) 102 FLR 370
K v K [2000] NSWSC 1052
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9]; [2011] HCA 1
Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249
Ormwave Pty Ltd v Smith [2007] NSWCA 210
P v NSW Trustee and Guardian [2015] NSWSC 579
Palassis v Commissioner of Taxation [2011] FCA 1305
SAB v SEM & Ors [2013] NSWSC 253
Smalley v Secretary, Department of Health and Ageing [2011] FCA 302
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175; [1988] FCA 119
Category:Principal judgment
Parties: J (Plaintiff)
W (1st Defendant)
I (2nd Defendant)
M (3rd Defendant)
Representation:

Counsel:
J Merkel (Plaintiff)
P Savage (Defendants)

  Solicitors:
Carters Law Firm (Plaintiff)
Frontier Law Group (Defendants)
File Number(s): 2016/166534

Judgment

  1. HIS HONOUR:   This is an appeal, or alternatively an application for leave to appeal, from orders made in the Guardianship Division of the NSW Civil and Administrative Tribunal (“the Tribunal”) on 31 March 2016 in relation to a person whom I will call F. F is an 81 year-old lady who resides with one of her…

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AGLC
Re Uf [2017] NSWSC 437
Case
[2017] NSWSC 437
Decision Date

CaseChat Overview and Summary

Uf, a protected person, appealed to the Court from the Guardianship Division of the NSW Civil and Administrative Tribunal. The dispute centered on whether the tribunal was correct in upholding the guardianship and financial management orders made in relation to Uf, and whether it had failed to afford procedural fairness or misapplied certain sections of the Guardianship Act 1987 (NSW). The tribunal had found Uf incapable of managing their own affairs, leading to the continued guardianship and financial management orders.

The court was required to decide whether the tribunal correctly exercised its jurisdiction and whether it properly applied the relevant statutory provisions, including sections 4, 15(3), and 25G of the Guardianship Act 1987 (NSW). The appeal also sought to determine if the tribunal had failed to afford procedural fairness to Uf. Additionally, the court needed to consider the general principles of appeals and the right to appeal from the tribunal's decision.

The court found that the tribunal had correctly exercised its jurisdiction and had properly applied the relevant sections of the Guardianship Act. It held that the tribunal's assessment of Uf's capacity to manage their own affairs was supported by evidence and that procedural fairness had been observed. The court concluded that the tribunal's decision was not in error and dismissed the appeal. Consequently, the guardianship and financial management orders in relation to Uf remained in place.

Orders

Orders of the court

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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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