EFK v NSW Trustee and Guardian [2020] NSWCATAD 171

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EFK v NSW Trustee and Guardian [2020] NSWCATAD 171 Hearing dates: 4 February 2020 Date of orders: 3 July 2020 Decision date: 03 July 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: L Organ, Senior Member Decision: Pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived. Catchwords: ADMINISTRATIVE LAW – merits review Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Cases Cited: DXG v Public Guardian [2020] NSWCATAD 129 NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 Category: Principal judgment Parties: EFK (Applicant) NSW Trustee and Guardian (Respondent) Representation: Solicitors: Agatha Satala (Applicant) R Sawtell (NSW Trustee and Guardian) (Respondent) File Number(s): 2020/00005341 Publication restriction: The publication of the name of the applicant or any other person mentioned in these reasons for decision is prohibited pursuant to s. 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Overview 1. The applicant referred to as EFK, seeks a review of a decision of the NSW Trustee and Guardian (NSWTG) who is the appointed financial manager of EFK's uncle. EFK's uncle is referred to as JBC. 2. On 23 May 2018 the Guardianship Division of the Tribunal found JBC was incapable of managing his financial affairs and committed the management of the estate of JBC to the NSWTG. 3. JBC was at the time of the hearing of the current proceedings 97 years old and was residing in an aged care facility. Prior to this he had been living in his unit in the inner west of Sydney (the property). 4. On 22 March 2019 approval was given by NSWTG to enable EFK to buy JBC's property at the lower end of the market value of $730,000 less agents commission and advertising costs, that is a sale price of $708,000. If EFK was unable to pay the sum the property was to be sold on the open market. 5. Following representations by EFK, the NSWTG amended the decision of 22 March 2019 by agreeing that EFK could purchase the property of JBC for $500,000. The reason given for that decision was because the decision maker felt reassured that it was JBC's wish for the property to be sold at a significantly discounted price to his nephew EFK. 6. However, EFK's sister sought an internal review of that decision under s 53 (3) of the Administrative Decisions Review Act, 1997 together with a review of a decision by NSWTG to decline her claim for reimbursement of $45,000 to her for expenses she claimed to have paid from her own funds on JBC's behalf. 7. On 12 December 2019 the internal reviewer decided to set aside the decision to sell the property for less than market value and to re-instate the decision made on 22 March 2019 which was that EFK be given first opportunity to buy the property at the lower end of the market value. The internal reviewer also set aside the decision declining the claim for reimbursement by EFK's sister of expenses from the estate and determined that the reimbursement be paid when funds became available from the estate. 8. EFK has applied to the Tribunal for a review of this decision. 9. EFK contends that JBC had intended to sell the property to him for $500,000. He says this position is supported by EFK's will dated 10 November 2017 which provides that if at the time of his death JBC still owns his property it was to be transferred to EFK upon him paying $500,000. He also says this position is supported by communications between NSWTG and JBC. 10. EFK contends that the funds paid by his sister on behalf of JBC were paid from funds that she had obtained from JBC and deposited to her bank account.