PV v NSW Trustee and Guardian [2011] NSWADTAP 37

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: PV v NSW Trustee and Guardian [2011] NSWADTAP 37 Hearing dates: 5 August 2011 Decision date: 22 August 2011 Jurisdiction: Appeal Panel - Internal Before: Magistrate N Hennessy, Deputy President C Huntsman, Judicial Member Dr B Field, Non-Judicial Member Decision: (1) Leave for the appeal to extend to the merits of the Tribunal's decision is refused. (2) The Tribunal's decision is affirmed. Catchwords: APPEAL - question of law - procedural fairness - reasonable opportunity to present case - leave to extend appeal to the merits Legislation Cited: Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Cases Cited: K v K [2000] NSWSC 1052 Re R [2000] NSWSC 886 S v S [2001] NSWSC 146 Category: Principal judgment Parties: PV (Appellant) NSW Trustee and Guardian (Respondent) Representation: In person (Appellant) C Phang, NSW Trustee and Guardian (Respondent) File Number(s): 119017 Decision under appeal Citation: PV v NSW Trustee and Guardian [2011] NSWADT 89 Date of Decision: 2011-05-04 00:00:00 Before: General Division File Number(s): 103193

REASONS FOR DECISION

Introduction 1APPEAL PANEL (N HENNESSY, LCM (DEPUTY PRESIDENT), C HUNTSMAN (JUDICIAL MEMBER), DR B FIELD (NON-JUDICIAL MEMBER)): PV has appealed against a decision of the Tribunal affirming a decision of the NSW Trustee and Guardian to sell his mother's house. The appeal is made on a question of law. PV also seeks leave for the appeal to be extended to the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997 ( ADT Act , s 113(2)). 2PV's mother is now 94 years old and lives in a nursing home. The NSW Trustee and Guardian has been appointed to manage her financial affairs and to make decisions about where she is to live. On 6 November 2009 a decision was made to sell PV's mother's home for various reasons including that she was then living permanently in an aged care facility and the proceeds of the sale were needed to ensure that she had sufficient funds to meet her expenses. Following an internal review decision on 14 December 2009, the decision to sell the house was varied. 3Essentially the varied decision was that, on the basis that PV and both of his brothers agreed to the property being leased at full market value, the sale of the property would be reviewed in 12 months time. Alternatively, if the property was left vacant, all three brothers could agree to accept the risk of the property being uninsured. The property would not be sold as long as $25,000 was deposited in PV's mother's trust account within 30 days. 4PV communicated with the NSW Trustee and Guardian following this decision including by phone on 19 January 2010 and by letter on 22 January 2010. PV confirmed in the letter that he accepted the decision to pay $25,000 into his mother's account. The letter went on to seek clarification of various matters including whether a relative could rent the property and whether the $25,000 could be considered as an interest free loan to be repaid from the estate. PV also said that he had confirmed with the insurer that the property would remain insured as long as certain requirements as to occupancy were met. 5A file note dated 9 April 2010 records that "... payment of $25,000 p.a. (by each of [the three adult children]) within 30 days from the Reasons for Decision letter (dated 14/12/09) was one of the conditions set by Elaine Tamblin (sic) to secure the property from sale. Further it was advised that 'If the above points are not mutually agreed to the property is to be sold as per Ms Tracey Williams original decision.'" The NSW Trustee's delegate spoke to PV again on 4 May at which time he offered to pay $8,000 to cover his mother's immediate expenses and to talk to his brothers about renting the property. PV made that payment but continued to query why the NSW Trustee needed to consult with his brothers. 6On 6 August 2010 the NSW Trustee decided that the home should be sold. PV applied to the Tribunal for a review of that decision. The Tribunal affirmed the decision and PV now appeals to the Appeal Panel. 7PV applied to the Appeal Panel for a stay of the decision that the property be sold. The NSW Trustee consented to the stay but noted that a stay did not prevent them from obtaining an agent's report or a valuation. A stay was granted pursuant to s 60 of the ADT Act , preventing the home being sold pending the hearing. As of the date of this decision, the stay is no longer in effect.