YDV v YDT [2023] NSWCATAP 276

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YDV v YDT [2023] NSWCATAP 276 Hearing dates: 22 June 2023 27 June 2023 (final submissions) Date of orders: 13 October 2023 Decision date: 13 October 2023 Jurisdiction: Appeal Panel Before: A Britton, Deputy President D Charles, Senior Member B McPhee, Senior Member Decision: Leave to appeal is refused. Appeal is dismissed. Catchwords: GUARDIANSHIP — decision to revoke a financial management order — s 25P(2) of the Guardianship Act 1987 (NSW) — meaning of expression "is capable of managing his or her affairs" in s 25P(2)(a) of the Guardianship Act 1987 (NSW) EVIDENCE — Expert evidence in proceedings in the Guardianship Division of NCAT—— whether expert tailored their opinion to advantage a party APPEALS — whether finding that the subject person has capacity to manage her affairs was "against the weight of evidence" APPEALS — whether to grant leave to appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) APPEALS — fresh evidence — whether the power conferred by 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to deal with an appeal by way of a new hearing should be exercised Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c) Civil and Administrative Tribunal Act 2013 (NSW), ss 26, 38(2), 80(2)(b), 80(3) Evidence Act 1995 (NSW), ss 76, 79 Guardianship Act 1987 (NSW), ss 4, 25D, 25G, 25G(a), 25M, 25P, 25P(2), 25P(2)(a)-(b), 25R Powers of Attorney Act 2003 (NSW), ss 36(1), 37(1) Cases Cited: Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202; [2015] NSWCA 30 Akins v National Australia Bank (1994) 34 NSWLR 155 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Lithgow City Council v Jackson (2011) 85 ALJR 1130; 281 ALR 223 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 McD v McD [1983] 3 NSWLR 81 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68 P v NSW Trustee and Guardian [2015] NSWSC 579 Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 Walsh v Visionstream [2004] NSWCA 104 Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 ZND v ZNE [2020] NSWCATAP 34 Texts Cited: NCAT Procedural Direction 3, 28 February 2018 Category: Principal judgment Parties: YDV (First Appellant) YDU (Second Appellant) YDT (First Respondent) NSW Public Guardian (Second Respondent) NSW Trustee & Guardian (Third Respondent) YEA (Fourth Respondent) Representation: In person (First Appellant) In person (Second Appellant) Separate representative, Mark Warren, Solicitor (First Respondent) No appearance (Second Respondent) No appearance (Third Respondent) In person (Fourth Respondent) File Number(s): 2023/00118818 Publication restriction: Decisions of the Appeal Panel in respect of orders of the Guardianship Division of the Tribunal have been anonymized to remove any information that may identify any private person involved in the Tribunal's proceedings. The publication of the name of any of the parties or other people referred to in this decision other than the NSW Trustee and Guardian, NSW Public Guardian, including the publication of any information or other material that identifies them or is likely to lead to their identification, is prohibited: Civil and Administrative Tribunal Act 2013, section 65. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 06 April 2023 Before: A R Boxall, Senior Member (Legal) File Number(s): 2021/00297449