CU v Protective Commissioner [2008] NSWADT 36

CITATION: CU v Protective Commissioner [2008] NSWADT 36

DIVISION: General Division

APPLICANT CU PARTIES: RESPONDENT Protective Commissioner

FILE NUMBER: 073292

HEARING DATES: 8 January 2008

SUBMISSIONS CLOSED: 8 January 2008

DATE OF DECISION: 21 January 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Protected Estates Act - Protective Commissioner - powers as to property - disposition of money

MATTER FOR DECISION: Principle matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997

APPLICANT In person REPRESENTATION: RESPONDENT T Tunbridge, solicitor

1. The decision of the Protective Commissioner to refuse to give CU an ex gratia payment of $15,000.00 plus interest is affirmed. ORDERS: 2. The decision of the Protective Commissioner to refuse to give Mrs A an ex gratia payment of $150,000.00 to compensate her for funds which were allegedly misappropriated by Mr B, is affirmed. 3. The decision of the Protective Commissioner to take no further action in relation to the burial plot in which Mr B is buried is affirmed. 4. The decision of the Protective Commissioner to take no further action in relation to recovering documents and possessions relating to or belonging to Mrs A is set aside. In substitution for that decision a decision is made that the Protective Commissioner take all necessary steps to obtain documents relating to Mrs A to which it is entitled.

"Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following: (a) proceedings in the Community Services Division of the Tribunal, (b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division, (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983, (b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983 (c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section. (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, 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 Introduction 1 The applicant in these proceedings, CU, is concerned about the way the Office of the Protective Commissioner (OPC) is managing his mother's finances. CU's mother (Mrs A) is a woman in her mid nineties who has dementia and is blind. She has lived in a nursing home for several years. Mrs A has two sons, one of whom is CU, and three daughters. She also had another son, Mr B, who died in March 2004. About three years ago, as a result of disagreements among Mrs A's adult children, CU applied to the Guardianship Tribunal for a financial management order in relation to his mother. The Guardianship Tribunal appointed the OPC to manage her estate. CU has applied to this Tribunal to review four decisions that the OPC has made on behalf of his mother. The Tribunal's role is to stand in the shoes of the OPC and make "the correct and preferable decision" in light of all the relevant facts and law: Administrative Decisions Tribunal Act 1997, section 63. First decision – refusal to compensate CU for loan of $15,000 plus interest 2 CU says that in 1981 he lent $15,000.00 to his mother so that she could pay for some of Mr B's debts. Mr B was in gaol from 1981 to 1984 in relation to the death of his wife and needed money to pay for legal fees and other expenses. There is documentary evidence that $10,000.00 was paid to Mrs A by bank cheque on 21 September 1981. CU says that he gave his mother that cheque and paid the remaining $5,000.00 to her in cash. There was no written record of these transactions until October 1997. At that time, Mr B and Mrs A allegedly signed a document written in Croatian acknowledging the loan. CU says that he gave the OPC the original of that document but the OPC says that it does not have it. CU has complained that the OPC has misplaced several documents that he has given them. That is not something that this Tribunal has power to investigate. 3 CU has an unsigned English translation of the document purportedly written by Mr B, which states, in part, as follows: Dear Sir/Madam With this document, I give the following statement: My brother [CU] gave to our mother 15,000 dollars and with that money she paid my court expenses and other associated costs in 1981, with agreement that I'll pay that money back with 10% interest when I sell my house. [CU] agreed to give that money to the mother only when the mother guaranteed that she accepts all the responsibility for that money, in the case it were not returned to him. I also wish to add that our mother gave me the power of attorney (because she is sick old and illiterate) so I could take care of all her needs. In Sydney, October 1997 Signed by Mr B Mrs A 4 CU says that his brother has never repaid him the money he lent to Mrs A and the OPC should have attempted to recover the amount from Mr B, or from his estate when he died, on behalf of his mother. Because they did not do so, CU says that the OPC should give him an ex gratia payment of $196,649.91, being the amount of the loan plus 10 percent interest since 1981. He says that he is entitled to be paid that amount because the OPC should have put a caveat on Mr B's property before it was sold and or made a claim against Mr B's estate when he died. The decision under review is the OPC's decision to reject CU's claim for an ex gratia payment of $15,000.00 plus interest. 5 The OPC was appointed as Mrs A's financial manager on 26 October 2004. Mr B's house was sold at auction less than two weeks later, on 7 November 2004. CU says that the house was still owned by Mr B for approximately six weeks until settlement took place. He says that he wrote to the OPC on 21 November 2004 telling them of the impending sale of Mr B's property and of the need to lodge a caveat. The OPC says that they have no record of receiving a letter from CU at that time. CU has not provided the Tribunal with a copy of that letter. The OPC says that the first written record they have in relation to the loan issue is a file note dated 11 February 2005, which contains a decision not to take any further action on the basis that recovery of the debt would be statute barred because of the amount of time that has passed. 6 The OPC says it received a document relating to the loan from CU on 29 March 2006. I presume that they are referring to the unsigned English translation, not the original signed document. The matter was referred to external solicitors for advice on 23 January 2007. After obtaining further documents, the solicitors gave their final advice on 7 May 2007. The solicitors characterised the transaction as a loan from CU to Mr B in respect of which Mrs A was the guarantor. CU disagrees with this characterisation. He says there were two loans. The first was a loan of $15,000.00 by him to his mother. The second was a loan of $15,00.00 by his mother to Mr B. That characterisation is not consistent with the wording of the document. The document suggests that there was one loan from CU to Mr B and that Mrs A was responsible for repaying CU if Mr B did not do so when he sold his house. The legal advice was that a claim by Mrs A against the estate of Mr B would fail because neither Mrs A nor CU submitted a claim against the estate within time and the executors of Mr B's estate are no longer liable in respect of any such claim. 7 Conclusion. The Tribunal's role is to determine whether the OPC's decision not to make and ex gratia payment to CU was the correct and preferable decision. That depends on the view that is taken of the way the OPC dealt with this issue. The fact that the OPC recorded a decision on 11 February 2005, not to take any further action, means that CU had raised the issue with the OPC prior to that time. However, there is no documentary evidence that CU sent a letter on 21 November 2004. Even if CU had asked the OPC to put a caveat on Mr B's property, I am not satisfied that the OPC would have known about the loan in enough time to obtain legal advice. Even if they did have time to obtain legal advice, that advice is likely to have been that there was no contractual relationship between Mrs A and Mr B. 8 The second question is whether the OPC should have made a claim against Mr B's estate when he died. If the legal advice that OPC ultimately obtained is accepted, Mrs A was merely the guarantor, that is, she had a contract with CU to repay the money if Mr B did not pay him. In those circumstances Mrs A would have no claim against Mr B or his estate for the amount of the loan. The advice was consistent with CU having a claim against both Mr B and Mrs A. CU has made it clear that he does not want to sue his mother for the debt, nor did he take any action to lodge a caveat or make a claim against the estate. I am not satisfied that the OPC's failure to make a claim against Mr B's estate for the amount of the loan justifies them paying CU the amount of the loan plus interest. The decision to refuse to give CU an ex gratia payment of $15,000.00 plus interest is affirmed. Second decision – not to compensate Mrs A for alleged misappropriation of funds 9 CU says that his mother should be given $150,000.00 as compensation for funds that were allegedly misappropriated by Mr B over the years. CU pointed to evidence, which he says, supports his allegation. None of that evidence is persuasive. One document on which he relied was a copy of a page of a bank book in relation to an account that Mr B held in trust for Mrs A. That account was cancelled when the OPC became Mrs A's financial manager. The solicitors acting for the executors of Mr B's estate sent a copy of the last page of the bank book to the OPC together with a cheque for $13,502.77 which was the balance in the account on 25 August 2004. CU points to withdrawals of $520.00 on 8 October 2003, $200.00 on 12 November 2003, $900.00 on 23 January 2004 and $2,200.00 on 5 March 2004 as evidence of misappropriation. Mr B died on 28 March 2004. CU says that his mother was in the nursing home in 2003 and 2004 and her pension was being paid directly to the nursing home. 10 Statements from the nursing home for the period 1 March 2004 to 31 March 2004 shows that Mrs A's nursing home fees and other expenses for podiatry, hairdressing and toiletries were being deducted from her pension. According to CU, there was no need for money to be deducted from her bank account during that period. There was no evidence of how the total of $3,820.00 which had been withdrawn from the account over a period of 5 months, had been spent. Mr B has since died and cannot give that evidence. Consequently, the prospect of proving that Mr B misappropriated any money or recovering any such money from his estate is negligible. 11 It would not be in Mrs A's financial best interests for the OPC to spend time and money pursuing allegations of misappropriation by Mr B. Nor is it appropriate for the OPC to make an ex gratia payment to Mrs A of any amount given that there is nothing they could have done even if they were satisfied that some misappropriation had occurred prior to them be being appointed. The OPC's decision to refuse to give Mrs A an ex gratia payment of $150,000.00 to compensate her for funds which were allegedly misappropriated by Mr B, is affirmed. Third decision – burial plot 12 One of CU's main concern is that his brother, Mr A, who committed suicide in March 2004, is buried in a burial plot which he says his mother paid for and was intended for her alone. The grave was purchased on 12 September 1994 and is owned by Mrs A. According to the Catholic Cemetery Trust, in 1995 Mr B arranged and paid for masonry work to be carried out on the grave. CU says that Mr B's two children organised for their father to be buried in that plot illegally. The Catholic Cemetery Trust formed the view at the time of Mr B's death that it was intended that he be buried in the grave with his mother, and as her son and primary carer at the time, arrangements were made to that end. CU is adamant that his niece and nephew and the Catholic Cemetery Trust have acted illegally by allowing Mr B to be buried in a plot owned by, and intended for, his mother. 13 Even though there is now space for two bodies in the grave, CU says that it is not culturally appropriate for his mother to be buried with Mr B because before committing suicide, his brother had been in prison in relation to the death of his wife. CU maintains that his niece and nephew should pay for a new burial plot for his mother or remove their father from the existing plot. He says that the OPC should commence legal action on behalf of his mother to achieve these outcomes and that, if successful, it would recover its legal costs from either Mr B's children or the Catholic Cemetery Trust. He says that another plot has been set aside which could be used for his mother, but that plot would cost at least $2,800.00 plus the cost of a tombstone and other expenses. 14 The dispute is over an amount of approximately $2,800.00, being the cost of alternative arrangements for Mrs A's burial. Even if the OPC obtained legal advice that the prospects of success of such a claim were high and they were successful in their claim, they would only be entitled to their party/party costs, not to the full solicitor/client costs. Given the risks that the claim would not be successful and the relatively small amount in dispute, the financial reality is that it is not worth spending Mrs A's money pursing a claim. The cost of any proceedings is highly likely to exceed the value of the amount in dispute. I understand that CU feels strongly about the fact that his niece and nephew arranged for Mr B to be buried in a plot purchased by his mother and that the Catholic Cemetery Trust allowed that to happen. Nevertheless, the OPC's decision not to take any further action is the correct decision. Fourth decision- mother's documents and possessions 15 The final decision, which the OPC made, was not to take any further action in relation to a request by CU to recover documents and possessions belonging to his mother. The documents include receipts for the burial plot, tombstone and monument and documents relating to a property in Croatia including receipts for taxes CU said he paid in relation to that property. The possessions include furniture, clothing and photographs. 16 On 7 August 2004, just prior to the Guardianship Tribunal hearing, CU wrote to the solicitors for the executors of his brother's estate requesting that all bank documents and statements in the name of his mother and certain other items be given to him. The solicitors wrote back saying that the documents would only be provided to a person nominated by agreement between the family or appointed as a guardian pursuant to an order of the Guardianship Tribunal. 17 On 26 November 2004, the OPC wrote to the solicitors advising that a financial management order had been made and requesting that all relevant documents be forwarded to Mrs A, care of the OPC. On 1 December 2004, the solicitors sent a letter enclosing a copy of the last page of a cancelled Savings Account Passbook and a letter from the Commonwealth Bank dated 25 August 2004. No other documents relating to Mrs A were provided. Over two years later, on 23 January 2007, the OPC wrote to the solicitors again asking for further details about the whereabouts of Mrs A's possessions and documents. They have no record of a response and no further action has been taken. 18 It appears that there are documents relating to Mrs A to which the OPC is entitled as her financial manager, but which have not been provided by the solicitors for the executors of Mr B's estate. One of those documents is the cancelled Savings Account Passbook. The OPC is entitled to the documents requested in their letter of 29 November 2004. The solicitors do not appear to have provided those documents, nor, apparently, have they responded to the OPC's letter of 23 January 2007. The correct decision is for the OPC to take all necessary steps to obtain documents relating to Mrs A to which it is entitled. Given the level of family conflict, it makes sense for the OPC to hold the financial records relating to Mrs A that are currently in the possession of other family members or their solicitors. 19 CU says that other family members have, or should have, personal possessions belonging to Mrs A such as furniture, clothing, manchester and photographs. He says that these items have some monetary as well as sentimental value. Because CU is not talking to his sisters or niece and nephew he does not know what has happened to these possessions and he is concerned that they may have been sold. The sisters have told the OPC that Mrs A only had some old furniture, which has been given or thrown away with their consent. One of the sisters still has a photograph of Mrs A with her late husband. She is willing to give CU a copy of that photograph. 20 CU feels strongly about the fact that his mother's possessions may have been disposed of without him being consulted, but he has not suggested that these second hand items are worth a great deal of money. While they may have sentimental value for CU, it is not in Mrs A's financial best interest to pursue this matter. Rather, it would make sense for the family members to resolve this matter (and other matters such as the burial plot) informally, perhaps with the assistance of a community mediator. I am not suggesting that the OPC needs to be involved in that process but they may be able to direct CU and other family members to organisations, which could be of assistance. Orders 1. The decision of the Protective Commissioner to refuse to give CU an ex gratia payment of $15,000.00 plus interest is affirmed. 2. The decision of the Protective Commissioner to refuse to give Mrs A an ex gratia payment of $150,000.00 to compensate her for funds which were allegedly misappropriated by Mr B, is affirmed. 3. The decision of the Protective Commissioner to take no further action in relation to the burial plot in which Mr B is buried is affirmed. 4. The decision of the Protective Commissioner to take no further action in relation to recovering documents relating to or belonging to Mrs A is set aside. In substitution for that decision a decision is made that the Protective Commissioner take all necessary steps to obtain documents relating to Mrs A to which it is entitled.