Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AHB v NSW Trustee and Guardian [2016] NSWCATAP 258 Hearing dates: On the papers Date of orders: 30 November 2016 Decision date: 30 November 2016 Jurisdiction: Appeal Panel Before: A Britton, Principal Member Decision: The application for a stay of the decision under appeal is granted subject to the following conditions: (1) Within 10 days of the date of this decision, AHB files and serves evidence in support of his claim that since 10 May 2016 he has been depositing fortnightly payments of $1000 into an account nominated by the Trustee. That evidence must take the form of an affidavit prepared by AHB, which annexes supporting evidence such as copies of bank statements, which identify the payments AHB claims to have made to the Trustee. If, AHB is unable to provide evidence to support his claim of having deposited fortnightly payments of $1000 into an account nominated by the Trustee since 10 May 2016, within 10 days of the date of this decision, he must deposit a sum equivalent to $1,000 per fortnight for the period 10 May 2016 to date (approximately $16,000), less any amount deposited during that period into an account nominated by the Trustee, for which AHB can provide evidence of having so deposited. (2) AHB continue to make fortnightly payments of $1000 into an account nominated by the Trustee. (3) Within two days of making each fortnightly payment referred to in Condition 2, AHB files and serves evidence of having made such payment. (4) That within two days of making each fortnightly payment referred to in Condition 2, AHB file and serve evidence of having made such payment. The stay is automatically lifted if any of these conditions are not complied with. Parties to have liberty to apply to have this matter re-listed. Catchwords: PRACTICE AND PROCEDURE — stay of the decision under appeal — factors relevant to exercise of the power to stay decision under appeal — extension of stay granted with conditions Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Cases Cited: AHB v NSW Trustee and Guardian [2016] NSWCATAD 208 AHB v NSW Trustee and Guardian [2012] NSWADT AHB v NSW Trustee and Guardian [2012] NSWADTAP 37 AHB v NSW Trustee and Guardian [2014] NSWCA 216 Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 Category: Procedural and other rulings Parties: AHB (Appellant) NSW Trustee and Guardian (Respondent) Representation: Appellant (in person) Respondent (R Sawtell, solicitor) File Number(s): AP 16/45555 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Date of Decision: 15 September 2016 Before: R Booby, Senior Member File Number(s): 1610009 REASONS FOR DECISION 1. The applicant, AHB, seeks a stay of the decision made by the NSW Trustee and Guardian (the Trustee) to sell a property owned by his mother pending the hearing of his appeal against that decision. The application for a stay is opposed by the Trustee on the grounds that AHB has not identified an appealable error of law and therefore his appeal has no prospects of success. 2. The decision to sell the property owned by AHB's mother (the protected person) was made on 3 July 2015 and affirmed on internal review. AHB was notified of the decision in October 2015. In January 2016, he made an application to NSW Civil and Administrative Tribunal (NCAT) for review of that decision. In September 2016 the Tribunal affirmed the Trustee's decision: AHB v NSW Trustee and Guardian [2016] NSWCATAD 208. AHD now appeals against the Tribunal's decision. The appeal is listed before the Appeal Panel for hearing 20 January 2017. 3. Each party consented to AHB's application for a stay of the decision under appeal being determined "on the papers". Being satisfied that the issues for determination can be adequately determined in the absence of the parties by considering their written submissions, we decided to exercise the power to dispense with a hearing: s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Background to the appeal 1. In 2010, the Guardianship Tribunal of NSW made orders under the Guardianship Act 1987 (NSW), committing the protected person's estate to the management of the Trustee and appointing the Public Guardian as her guardian. 2. In September 2011, the Public Guardian decided that the protected person should be accommodated in a nursing home which provided additional nursing services to those being provided by the nursing home where she was then residing. The Trustee decided to sell AHB's home, apparently her primary asset (the property), apparently having concluded that this was the only feasible option to pay for the accommodation bond requested by the nursing home that had been selected by the Public Guardian (the first decision). 3. AHB applied to the then Administrative Decisions Tribunal (ADT) for review of the first decision. The Tribunal affirmed that decision: AHB v NSW Trustee and Guardian [2012] NSWADT 76. AHB appealed to the Appeal Panel of ADT. The Appeal Panel dismissed the appeal and affirmed the decision to sell: AHB v NSW Trustee and Guardian [2012] NSWADTAP 37. 4. AHB then appealed to the Court of Appeal. The Court of Appeal dismissed the appeal: AHB v NSW Trustee and Guardian [2014] NSWCA 216. Basten JA, however, made the following observations (at [3]) that are of significance in the case now before the Appeal Panel. He said: There is one additional matter worth noting. For the respondent to maintain the decision under review without reconsideration, in reliance upon a circumstance which existed in 2011, namely that the protected person's ongoing liabilities exceeded her income, would be to ignore the more recent recognition by the Public Guardian of the view of the protected person that she would not wish to render her son homeless. Undoubtedly financial exigencies may prevent such a wish being fulfilled. However, for the respondent to ignore the wish in changed circumstances as to the need for sale of the home would raise a serious question as to the respective roles of the respondent and the Public Guardian. It is not an issue which presently arises for determination and therefore need not be pursued. 1. McColl JA agreed with those observations. 2. I infer that it was those comments that led the Trustee to reconsider its decision to sell the property. Following a review, on 3 July 2015 the Trustee again made a decision to sell the property (the second decision). Power to grant a stay of the decision under appeal 1. The power to stay the operation of a decision under appeal is conferred by s 43 of the NCAT Act in these terms: 43 Effect of pending general applications and appeals … (2) A pending … appeal does not affect the operation of the decision to which the … appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending … appeal relates as it considers appropriate to secure the effectiveness of the determination of the … appeal. 1. The NCAT Act does not specify the factors to be taken into account in determining whether the discretionary power to stay the operation of a decision under appeal should be exercised. In Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37, after examining the authorities, Wright J at [9], summarised the principles to be applied in determining whether or not to grant a stay pending the determination of the appeal (citations omitted): 1. Generally a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour – s 43(2) and (3) of the Act. 2. In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order. 3. The mere lodgement of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay. 4. An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal – s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay. 5. The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision. 6. The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. 7. In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. 8. Finally, the overriding principle in an application for a stay is to ask what the interests of justice require. The relevant discretionary factors 1. While successful parties are entitled to the benefit of decisions at first instance, courts and tribunals are generally reluctant to enforce decisions under appeal if to do so would be to render the appeal nugatory. Unless it is evident that an appeal is hopeless and is being instituted to postpone the inevitable rather than to redress an error in the decision-making process, all other things being equal, it will generally be in the interests of justice to allow the appeal process to reach its proper conclusion. 2. That said, AHB bears the onus of demonstrating, on balance, that a stay should be granted. 3. The Trustee submits that AHB's appeal has no prospects of success and that therefore a stay ought not be granted. It argues, in effect, that the appeal is simply a device employed by AHB to delay a decision which was made in the best interests of his mother. For these reasons, and because it is not in the financial interests of the protected person for the sale of the property to be further delayed, the stay application should be dismissed. 4. A significant matter to be taken into account on the stay application is the prejudice that may or may not be suffered by the protected person during the period up to the determination of the appeal. AHB claims that to address the shortfall identified by the Trustee between his mother's income and expenses, he has been paying $1000 "rent" per fortnight to the Trustee. 5. I note that as early as September 2011 AHB indicated he was not in a position to contribute funds to prevent the sale of the property. As late as September 2015 he continued to indicate he was unable to contribute financially to prevent the sale of the property. Should the application for a stay be granted? 1. AHB has occupied his mother's home for many years now. The house is her primary asset. Since 2011, the Trustee has been attempting to sell the house for her benefit. AHB has resisted this approach at every step. There is evidence to suggest that he either does not recognise that in this argument about the sale of the property the primary question is his mother's best interests, or that he deliberately ignores that question. 2. While the impatience and anxiety of the Trustee to proceed to the sale of the property is both understandable and legitimate, it is also necessary that the interests of justice be fully recognised. Justice must not only be done but must be seen to be done. 3. In my view, it is important to recognise that AHB is an unrepresented litigant. His notice of appeal must be considered in this light. He asserts that errors of law were made by the Tribunal. In particular, he alleges that the Tribunal at first instance did not take his mother's wishes into account when affirming the Trustee's decision. As we noted above this was the very issue that exercised Basten JA in the Court of Appeal. It would be premature on this application to deal with that issue in summary fashion. 4. AHB also claims that the Tribunal made significant errors of fact that effectively vitiate the decision under appeal. 5. I am not prepared to find that the Appeal is so hopeless or lacking any real prospects of success that it is appropriate to render it nugatory by dismissing the stay application. 6. In my opinion the stay is necessary to secure the effectiveness of the Appeal. While the considerations are finely balanced and I recognise that the Trustee may very well succeed in the appeal, I have concluded that it is appropriate to stay the Trustee's decision pending the outcome of the appeal, subject to certain conditions. 7. My principal concern is that AHB's mother not be placed at any continuing financial disadvantage due to the necessary delay in hearing the appeal. In my opinion, that prejudice can be met if AHB is required to pay a suitable sum into an account administered on his mother's behalf by the Trustee. My decision should not be taken to indicate that in my opinion providing rent is paid by AHB, the correct and preferable is not to sell the property. 8. In my view, therefore it is appropriate to grant the application for a stay but to impose the following conditions. 9. First, that within 10 days of the date of this decision, AHB files and serves evidence in support of his claim that since 10 May 2016 he has been depositing fortnightly payments of $1000 into an account nominated by the Trustee. That evidence must take the form of an affidavit prepared by AHB, which annexes supporting evidence such as copies of bank statements, which identify the payments AHB claims to have made to the Trustee. If, AHB is unable to provide evidence to support his claim of having deposited fortnightly payments of $1000 into an account nominated by the Trustee since 10 May 2016, within 10 days of the date of this decision, he must deposit a sum equivalent to $1,000 per fortnight for the period 10 May 2016 to date (approximately $ 16,000), less any amount deposited during that period into an account nominated by the Trustee, for which AHB can provide evidence of having so deposited. 10. Second, that AHB continue to make fortnightly payments of $1000 into an account nominated by the Trustee. Third, that within two days of making each fortnightly payment referred to in Condition 2, AHB files and serves evidence of having made such payment. 11. If AHB fails to comply with any of these conditions, the stay is automatically lifted unless further extended by express order of the Tribunal. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2016