BGG v NSW Trustee and Guardian [2015] NSWCATAD 61

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BGG v NSW Trustee and Guardian [2015] NSWCATAD 61 Hearing dates: 16 October 2014 Decision date: 01 April 2015 Before: S Leal, Senior Member Decision: That the decision under review, namely that of the NSW Trustee and Guardian dated 2 October 2014, is affirmed. Catchwords: NSW Trustee and Guardian – decision to sell property – welfare and interests of persons incapable of managing their affairs – financial management order Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 NSW Trustee and Guardian Act 2009 Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 247 McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530. Category: Principal judgment Parties: BGG (Applicant) BHI, BVD, BVE & BVF (Applicants) NSW Trustee and Guardian (Respondent) Representation: Counsel: M Hadley (Applicant BGG)

Solicitors: Cater and Blumer, (Applicant BGG) Smythe Wozniak Legal, BHI, BVD, BVE & BVF (Applicants) R Stormont, NSW Trustee & Guardian (Respondent) File Number(s): 1410155; 1410242 Publication restriction: S64 Civil and Administrative Tribunal Act 2013 – prohibiting the publication of the names of the witnesses, applicants and the person under the management of NSW Trustee and Guardian

reasons for decision

Introduction 1. There are two applications for review considered in this decision: one by BGG and one by his brother BHI. Because both applications for review have been lodged in relation to the same decision by the NSW Trustee and Guardian, the Tribunal has considered the applications together in this decision. 2. Initially, both applications for review were lodged in relation to the decision by the NSW Trustee and Guardian on 25 February 2014, following internal review, to affirm the decision to offer to BGG the opportunity to enter into a formal commercial lease at market value over the commercial premises owned by his mother BVC and from which BGG conducted his welding business. BVC is also the mother of BHI, BVD, BVE and BVF. In the event of BGG's failure to enter into a lease arrangement, the internal reviewer made the decision that the 'commercial premises' (as they will be referred to in this judgment), together with any plant or equipment belonging to the mother, BVC, are to be sold. 3. In his application for review lodged on 31 March 2014, BGG stated that he was seeking a review of the decision on the following grounds: The decision was not correct or fair. It has been an agreement with BGG's mother and her late husband that BGG would not pay rent on the premises and this has been the agreement for a number of years. 1. In his application for review filed on 9 May 2014, BHI sets out the reasons why, in his view, BGG should not be given the opportunity to enter into a formal commercial lease in relation to the 'commercial premises' 2. A later request was made by the other children of BVC, namely BVD, BVE and BVF, that they be made parties to the application for review filed by BHI. This request was granted by the Tribunal. 3. At a later directions hearing, the Tribunal remitted the internal reviewers' decision, pursuant to s65 of the Administrative Decisions Review Act 1997, for reconsideration by the NSW Trustee and Guardian. The NSW Trustee and Guardian subsequently set aside the earlier decision and replaced it with the following decision dated 2 October 2014: The Internal Reviewer can affirm, vary or set aside the decision made on 25 February 2014 for BGG to enter into a formal commercial lease at market value…for 5 years with a 5 year option. If he does not agree to enter into a lease arrangement by 27 March 2014, then the property…together with any plant or equipment belonging to BVC is to be sold. In the circumstances I have determined to set aside the leasing component of my previous decision and now approve the sale of [the property] together with any plant or equipment belonging to BVC. 1. It is this decision that is now before the Tribunal. 2. A hearing was held before this Tribunal on 16 October 2014. At hearing, BGG confirmed that it remained his position that he should be allowed to occupy the commercial premises rent-free.