Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CPE v NSW Trustee and Guardian [2017] NSWCATAD 11 Hearing dates: 10 November 2016 Date of orders: 10 January 2017 Decision date: 10 January 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: M Hitter, Senior Member Decision: The decision of the NSW Trustee and Guardian is affirmed. Catchwords: Protective jurisdiction, welfare and interest paramount consideration Legislation Cited: Administrative Decisions Review Act 1997 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Succession Act 2006 (NSW) Cases Cited: P v NSW Trustee and Guardian [2015] NSWSC 579 UE & UD v NSW Trustee and Guardian [2011] NSWADT 150 Category: Principal judgment Parties: CPE (Applicant) NSW Trustee and Guardian (Respondent) Representation: Solicitors: Jesus Advocacy International (Applicant) Zucker Legal (Respondent) File Number(s): 1610330 Reasons for decision Introduction 1. This is an application to review a decision made by the Respondent on 27 April 2016 (the decision), to sell the family home (the property) owned by the Applicant's mother and father (the parents). The Respondent manages the affairs of the parents pursuant to Orders made by the Supreme Court on 23 December 2015 (the Orders). 2. The Applicant commenced proceedings in the Supreme Court against her parents and two siblings seeking a declaration that she has an equitable interest in the property. The Supreme Court found that the Applicant had no right, title or interest in the property and she was required to vacate the property. 3. Orders were also made to appoint the Respondent as manager of her parents affairs and specifically "be at liberty to sell the family home" and "apply proceeds of the sale towards payment of accommodation bonds due to be paid" with respect to their accommodation in an aged care facility. 4. The inclusion of the words "at liberty to sell the family home" form the basis on which the Tribunal is asked to review the Respondent's decision to sell the property: NSW Trustee and Guardian Act 2009 (the Act), s 62(1). 5. The Respondent submits that the Applicant does not have standing to seek this review. Section 62 of the Act requires that an application must be brought by an "affected person" which is defined as: 1. A managed person 2. The spouse of a managed person 3. Any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision. 1. The Respondent submits that the Supreme Court found that the Applicant has no right, title or interest in the property, and so her interests cannot be adversely affected by the Respondent's decision to sell the property. 2. The Tribunal is satisfied that the Applicant does have standing to seek a review of the decision for reasons set out below. On the basis of the material available to the Tribunal in these proceedings however, the decision of the Respondent is affirmed. Material available to the Tribunal 1. The Applicant was not present at the Hearing. She was represented by a solicitor, whom informed the Tribunal that additional time was required in order to prepare further material for the Tribunal to consider, including an Affidavit from the Applicant. By consent of both parties the Tribunal made orders to the effect that the Applicant is permitted to file and serve additional material on a date that set shortly after the Hearing and the Respondent file and serve material in reply within 48 hours from the date. The Applicant did not request an adjournment of the Hearing and both parties agreed to proceed on that basis. 2. The Tribunal had access to the following material: 1. The application for review of the Respondent's decision. 2. The Respondent's s58 documents. 3. Written submissions made on behalf of the Respondent dated 24 October 2016 and 18 November 2016. 4. Affidavits filed by the Respondent dated 7 June 2016, 29 August 2016, and 24 October 2016. 5. Written submissions attaching material filed on behalf of the Applicant received on 18 November 2016. Orders made in the Supreme Court 1. The Tribunal was provided with a copy of the Supreme Court judgment: J v J [2015] NSWSC 1984. In this case the Applicant sought to establish an equitable right or interest in the property based on a promise she says was made to her by her mother that, if she returned from the United States (where she had been living) and live in the property with her parents, she would be allowed to live there for the rest of her life. His Honour Lindsay J in the Supreme Court found that no such promise was made (at paragraph 32) and the Applicant had no right, title or interest in the property. The Applicant's standing 1. The Tribunal was informed that the Applicant has vacated the property. She had been living there since 2006 with her parents until they moved to an aged care facility, first her father and then her mother. The material filed for the Applicant suggests she had been caring for them while they were living together. 2. Her Honour noted that the Applicant's mother executed two wills in October 2011 and September 2012, which favour the Applicant over her other siblings, and which His Honour said was "evidently under the influence of the [Applicant]". These wills seek to revoke earlier wills, which do not exclude the other children, and give the Applicant only a right to residency for up to one year for the express purpose of allowing her time to find alternative accommodation. His Honour found that none of the wills provide "confirmation the [Applicant] holds an existing ownership interest" in the property and are consistent with the Applicant's occupancy being nothing more than a "personal license". 3. His Honour noted that in relation to the later instruments executed by the Applicant's mother, they are "likely in time to be contested". However it would appear that the Applicant is at the very least a named beneficiary in the wills made by her parents. 4. The Applicant states in her application seeking a review that the Tribunal has jurisdiction, "notwithstanding earlier Supreme Court proceedings concerning whether or not the Applicant has a "caveatable interest" in the property and "notwithstanding the orders made by the Supreme Court in those proceedings". Respondent's counsel refers to section 30 of the Succession Act 2006 (NSW), which provides that "(1) A will takes effect, with respect to the property disposed of by the will, as if it had been executed immediately before the death of the deceased"; and "(2) This section does not apply if a contrary intention appears in the will". There is no evidence of any contrary intention and on this basis the Respondent submits that the wills only take effect on death and the Applicant's interests are not adversely affected by the Respondent's decision to sell the property while her parents remain alive. 5. In the case of UE & UD v NSW Trustee and Guardian [2011] NSWADT 150, the NSW Trustee and Guardian approved a Commercial Management Plan in relation to the protected person's assets, which included interests in a Family Trust, for which the children of the protected person were beneficiaries. The Tribunal was satisfied that the interests of the Applicants in those proceedings, as future beneficiaries of this Family Trust, were adversely affected by the decision of the NSW Trustee and Guardian to approve the Commercial Management Plan because it could impact on their future entitlements. On that basis the Tribunal found that the Applicants had standing to make an application to the Tribunal to review that decision. 6. The Applicant is in a similar situation. While the Respondent is empowered to manage the estates of the parents while they are alive, and any entitlement the Applicant may have as a beneficiary of their wills can only be considered at the time of death, the decision to sell the property and apply the proceeds elsewhere, could adversely impact on the future interests of the Applicant. The Tribunal is satisfied that the Applicant has sufficient standing to seek a review of the decision. The decision to sell the Property 1. The Applicant's parents are elderly: her father is in his early nineties; and her mother in her late eighties. They live together in adjoining rooms at an aged care facility. The Applicant's mother has been diagnosed with dementia and her father has a cognitive impairment. There is no suggestion that they will be able to return to live in the property. The Tribunal understands from the section 58 documents that both her mother and father are content living in the aged care facility, which is both appropriate and preferable in light of their care needs, and they do not wish to return home. There is material contained in the section 58 documents which also suggest that the parents and their other children do not oppose selling the property. There is no evidence before the Tribunal contrary to that view. 2. The decision to sell the property was made following an analysis by the Respondent's Financial Planning Unit in April 2016. This is found at page 78 of the Respondent's section 58 documents. It includes an analysis of the income, assets and liabilities of the parents. It is noted that there are insufficient funds to carry out works required in order to rent the property and therefore this was not considered to be an option. The Financial Planning Unit supports the sale of the property in order to meet the outstanding and future accommodation costs of the parents. 3. The evidence before the Tribunal is that both parents owe a combined amount of $636,425 in "refundable accommodation deposits" as a result of agreements signed when they entered the aged care facility. 4. The Applicant argues that because she receives a disability support pension, she is a "protected person", and if she was residing in the property it would be deemed an "excluded asset". The Applicant argues that the refundable accommodation deposits would then not be payable and her parents would only be required to pay a percentage of their pension as fees to the aged care facility. The property, as a valuable asset, according to the Applicant, would then be preserved. 5. However this is problematic because pursuant to Orders made in the Supreme Court, the Applicant is not entitled to live in the property and in fact no longer lives there. The question of whether the refundable accommodation deposits are payable is addressed in the section 58 documents and the outcome of enquiries made by the Respondent is that they are payable. Respondent's counsel further submits that the question of whether the refundable accommodation deposits are payable was also in evidence before the Supreme Court, and it was considered a factor which would provide the basis of the Respondent's decision to sell the property. 6. The Applicant refers to a certain Centrelink form that she says was completed incorrectly with regard to the treatment of the property and the parent's liability to pay accommodation costs in the aged care facility. Respondent's counsel however drew the Tribunal's attention to Centrelink assessments contained in the section 58 documents, which treat the value of the property as $0. The Respondent submits that the information said to be inaccurate has no bearing on whether the refundable accommodation deposits are payable. The Applicant has not established otherwise. The correct and preferable decision 1. The Applicant contends in her application seeking a review that the decision of the Respondent "was not made in accordance with a direction given by the Supreme Court". However the Applicant has not established how this is so. 2. Despite additional time being given the Applicant has not provided any direct evidence. Her solicitor informed the Tribunal through written submissions received on 18 November 2016 "I apologise as the Applicant has not completed the Affidavit within the time allocated". The written submissions reiterated the oral submissions made by Applicant's solicitor at the Hearing. They were accompanied with a large volume of material, which were tabbed into sections but the submissions did not make any direct reference to this material or inform the Tribunal how this material might support the Applicant's case. Much of the material appeared to be historical including previous applications before the Guardianship Division of this Tribunal. 3. In determining the correct and preferable decision, the Tribunal must have regard to the material before it, including any relevant factual material and applicable written or unwritten law: s 63 (1) of the Administrative Decisions Review Act 1997 (NSW)). The Tribunal may affirm, vary or set aside the decision. If the decision is set aside, the Tribunal may substitute its own decision together with any directions or recommendations: s 63 (3) of the Administrative Decisions Review Act 1997 (NSW). 4. In exercising this jurisdiction the Tribunal must have regard to the paramount consideration of the welfare and interests of the parents in accordance with Chapter 4 generally and section 39 of the Act. 5. This protective jurisdiction is governed by the central informing idea that the jurisdiction exists for the care of those who are not able to take care of themselves. The exercise of this jurisdiction must be for the benefit, and in the best interests, of the person in need of protection as an individual, not for the benefit of the state or for the convenience of carers: P v NSW Trustee and Guardian [2015] NSWSC 579 6. The Applicant's case is that the refundable accommodation deposits are not payable, although she has not established that this is the case. The Applicant said that she has expended her own money when caring for her parents, and the decision of the Respondent leaves her without any accommodation, which is contrary to the request made by her mother in 2006 when the Applicant was asked to return home from the United States. However these factors do not outweigh what must be considered as in the best interests of the parents. 7. The Tribunal is satisfied that the refundable accommodation deposits are payable and there is no other way to meet these costs other than selling the property. Once these deposits are paid the daily accommodation fee her parents will pay is reduced and the Tribunal is satisfied that this is the best financial option for the Applicant's parents in all the circumstances. Whether or not the Applicant expended her own money when caring for her parents is a factor that might be relevant to her own interests but not in relation to the paramount consideration of the Tribunal, which is to determine what is in the best interests of the parents. 8. The Tribunal was not informed of the current living circumstances of the Applicant other than she no longer resides in the property. The Tribunal notes that at the time the Orders were made in the Supreme Court, an offer was made to the Applicant of $20,000 to help with her relocation costs in recognition of how the Orders would impact on her. However this was not accepted by the Applicant at the time and the Applicant's solicitor informed the Tribunal that she did not have instructions as to whether the Applicant would now be open to accepting this offer. Respondent's counsel informed the Tribunal he also did not have instructions as to whether this offer remained open. Conclusion 1. On the basis of the material presented to the Tribunal is satisfied that the decision to sell the property is the correct and preferable decision. 2. The Respondent's decision is affirmed and the application is dismissed. 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: 10 January 2017