ZBC v ZBD [2016] NSWCATAP 264

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZBC v ZBD [2016] NSWCATAP 264 Hearing dates: 15 June 2016 Date of orders: 14 December 2016 Decision date: 14 December 2016 Jurisdiction: Appeal Panel Before: M Schyvens, Deputy President C Fougere, Principal Member Z Antonias, General Member Decision: 1. In proceedings ZBC v ZBD, NSW Trustee and Guardian, and ZCG (AP15/67750) the appeal is allowed.

2. The following orders of the Guardianship Division made on 1 July 2015 are set aside but not until the time that the Guardianship Division re-determines ZBD's application to review the enduring power of attorney made by ZCG on 16 June 2008:

(a) The estate of ZCG is subject to management under the NSW Trustee and Guardian Act; (b) The management of the estate of ZCG is committed to the NSW Trustee and Guardian.

3. The following orders of the Guardianship Division made on 1 July 2015 are set aside:

(a) To conduct a review of the operation and effect of the enduring power of attorney made by ZCG on 16 June 2008; (b) Not to make any order under s 36 of the Powers of Attorney Act in relation to the enduring power of attorney; (c) To treat the application for a review of the enduring power of attorney as an application for a financial management order under the Guardianship Act.

4. The application by ZBD is remitted to the Guardianship Division for determination in accordance with law. Catchwords: APPEAL – Appeal from orders made by Guardianship Division – Decision to treat application to review enduring power of attorney as application for financial management order – inadequacy of reasons – s 12 Powers of Attorney Act 2013 – conferral of benefit on attorney a question of fact – interaction between s 4 Guardianship Act 1987 and Powers of Attorney Act 2013 – s 86(1) Probate and Administration Act 1898 – potential conflict in attorney seeking commission – relevant and irrelevant considerations – fresh evidence – Suitors' Fund Act 1951 – appeal upheld – matter remitted for redetermination Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 6, clauses 3(1) and 5(1), ss 3, 4, 32(4), 36(1), 62(3), 80(2)(b), 81, 80(3)(a), Guardianship Act 1987 (NSW), ss 4, 4(a), 25G, 25M NSW Trustee and Guardian Act 2009 (NSW) Powers of Attorney Act 2003 (NSW), ss 12, 36, 36(1), 36(2), 37, 37(1) Probate & Administration Act 1898, s 86(1) Suitors' Fund Act 1951 (NSW), ss 6, 6C Cases Cited: Absolon v NSW TAFE [1999] NSWCA 331 Anderson v Anderson [2016] NSWSC 1204 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Berger v Boulder Projects Pty Ltd [2015] NSWCATAP 274 Building Professionals Board v Hans [2008] NSWADTAP 13 C v W [2015] NSWSC 1774 Collins v Urban [2014] NSWCATAP 17 Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, 402 (Mason and Deane JJ), 399 (Gibbs CJ) Gaynor v Burns [2015] NSWCATAP 150 Health Care Complaints Commission v Perceval [2014] NSWCATOD 38 Holt v Protective Commissioner [1993] 31 NSWLR 227 House v R [1936] HCA 40 Howard v Commissioner of Taxation [2014] HCA 21 M v M [2013] NSWSC 1495 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Lian [1996] 185 CLR 259 Pollard v RRR Corp [2009] NSWCA 110 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 QP v RP [2014] NSWCATAP 59 Re R [2000] NSWSC 886 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Sean Investments Pty Ltd v MacKellar [1981] FCA 191 Siahos v J P Morgan Trust Australia Limited [2009] NSWCA 20 Susan Elizabeth Parker v Margaret Catherine Higgins [2012] NSWSC 1516 Taheri v Vitek [2014] NSWCA 209 Wright v Ryan [2005] NSWCA 368 ZCK v NSW Trustee and Guardian [2016] NSWCATAP 200 Category: Principal judgment Parties: ZBC (Appellant) ZBD (1st Respondent) NSW Trustee and Guardian (2nd Respondent) ZCG (3rd Respondent) Representation: P Glissan (ZBC) J Restuccia (ZBD) D Burwood (separate representative for ZCG) File Number(s): AP 15/67750 Publication restriction: The publication of the name of any of the parties or other people referred to this decision including the publication of any information picture or other material that identifies them or is likely to lead to their identification is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 01 July 2015 Before: J McMillan (Senior Member), Dr M Martin (Senior Member – Professional), L Porter (General Member – Community) File Number(s): C/58916