SY v Protective Commissioner

[2006] NSWADT 17

CITATION:	SY v Protective Commissioner [2006] NSWADT 17
DIVISION:	General Division
PARTIES:	APPLICANT SY RESPONDENT Protective Commissioner
FILE NUMBER:	053340
HEARING DATES:	2/12/05, 16/01/06
SUBMISSIONS CLOSED:	01/16/2006
DATE OF DECISION:	01/18/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Protected Estates Act 1983
CASES CITED:	TY v Protective Commissioner [2005] NSWADT 292
REPRESENTATION:	APPLICANT In person RESPONDENT C Phang, solicitor
ORDERS:	The Protective Commissioner’s decision to sell the property of SY’s grandmother is affirmed.

1 SY is the grandson of a 91 year old woman who is living in a nursing home. SY and his two siblings were brought up by their grandmother after their mother died. SY currently lives in his grandmother’s house rent free. For the last six years he has been the full time carer for his partner who was suffering from depression. His partner has now left him and SY is not employed at the moment. The Protective Commissioner is the financial manager of the grandmother’s property following a decision of the Guardianship Tribunal on 23 June 2004. The Protective Commissioner has decided to sell SY’s grandmother’s house because her income from the age pension and potential rent on the property is not sufficient to cover her nursing home and other expenses. SY opposes the sale of the house saying that he can arrange for someone to rent the house for $250 per week and he will pay $100 per week to rent a flat at the back of the property. According to the Protective Commissioner if the property is rented out at $350 a week there would be a shortfall of over $10,000 per annum between SY’s grandmother’s income and her expenditure.

2 SY has applied to the Tribunal for a review of the Protective Commissioner’s decision. The Tribunal’s role is to determine whether the Commissioner has made the “correct and preferable” decision: s 63 of the Administrative Decisions Tribunal Act 1997. In TY v Protective Commissioner [2005] NSWADT 292 I looked at the basis on which the Tribunal should make its decision. In this case the decision as to whether or not the property should be sold comes down the question of whether it is financially viable for her to keep the house. SY’s interests are not directly relevant because he is no longer a dependent of his grandmother.

Proposal

3 SY put a proposal to the Protective Commissioner that the house should not be sold. He said that he had a prospective tenant who was willing to pay $250 per week to rent the house. That amount accords with an estimate from local real estate agents, Starr Partners (Merrylands) that a fair market rental for the house would be $250 to $260 per week. He said he was prepared to pay $100 a week to rent the flat at the back of…