Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZGA v ZFZ [2017] NSWCATAP 231 Hearing dates: 11 October 2017; date of last submissions - 8 December 2017 Date of orders: 18 December 2017 Decision date: 18 December 2017 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President C Fougere, Principal Member L Porter, General Member Decision: (1) Leave is granted for ZGA to appeal on a question other than a question of law. (2) The following orders of the Tribunal made on 28 July 2017 are set aside: (a) The estate of ZFY is subject to management under the NSW Trustee and Guardian Act 2009. (b) The management of the estate of ZFY is committed to the NSW Trustee and Guardian. (c) This order be reviewed by the Tribunal within 1 year. (3) The Tribunal is directed to reconsider the application for a financial management order with further relevant evidence. Catchwords: APPEAL – financial management order – where Tribunal made financial management order and appointed NSW Trustee as manager – where Tribunal failed to make a finding on a critical question of fact -whether leave should be granted to appeal on a question other than a question of law Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2), s 81 Guardianship Act 1987 (NSW), s 4, s 25G(c), s 25M(1) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: ZGA (Appellant) ZFZ (First Respondent) NSW Trustee & Guardian (Second Respondent) ZFY (Third Respondent) Representation: Counsel: A F Fernon (First Respondent) Solicitors: Self-Represented (Appellant) O'Neill McDonald Lawyers (First Respondent) No appearance (Second Respondent) L Fisher (Guardian Ad Litem) (Third Respondent) File Number(s): AP 17/35792 Publication restriction: Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the names of the parties, other than the NSW Trustee and Guardian, is prohibited. A reference to the name of a person includes a reference to any information, picture or any other material that identifies the person or is likely to lead to the identification of the person. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 28 July 2017 Before: R Bailey, Senior MemberS McSwiggan, Senior MemberM Watson, General Member File Number(s): 2017/00197008 REASON FOR DECISION Overview 1. ZFY is an elderly man with dementia who lives in an aged care facility. The regional general manager of the owners of the facility applied to the Guardianship Division of the Tribunal for a financial management order in relation to ZFY. One of the reasons for the application was that the aged care facility and ZFY's son, ZGA, had been unable to come to an agreement as to the payment of ZFY's accommodation bond and fees. ZGA held a power of attorney for his father and the fees were in arrears. But representatives from the facility gave evidence at the hearing that the only reason for the application was that ZGA was engaging in "elder abuse" because he intended to purchase his father's house at well below market value. 2. The Tribunal made no finding about that allegation but concluded that it was in ZFY's best interests to make an order which was to be reviewed within 12 months. This was because the Tribunal was satisfied that ZFY's son and the aged care facility had reached an "impasse" about the non-payment of ZFY's fees that could not be resolved on an informal basis. The Tribunal appointed the NSW Trustee as ZFY's financial manager because they did not regard ZFY's son as a suitable person. 3. ZFY's son has appealed from the Tribunal's decision. We have decided to give him permission to appeal and to uphold the appeal. It would be unjust to allow the Tribunal's decision to stand because the Tribunal did not make a finding of fact about the elder abuse allegation. Nor did the Tribunal take a finding about that matter into account when determining whether to make the orders the facility had sought. For those reasons, which we expand on in this decision, we set aside the Tribunal's decision and direct the Tribunal to reconsider the application for a financial management order with further evidence. Tribunal's reasons Issues 1. There were two legal issues in these proceedings: whether the Tribunal was satisfied that it was in ZFY's best interests for a financial management order to be made and, if so, who should be appointed financial manager: Guardianship Act 1987 (NSW), s 25G(c) and s 25M(1). When exercising these discretions, it is the duty of the Tribunal to observe the principles in s 4 including that the welfare and interests of the person be given paramount consideration. The application 1. The Tribunal was considering an application for financial management made by the regional manager of the owners of the aged care facility. In that application, the manager made several allegations including that ZFY's son had attempted to transfer the title of ZFY's home into his own name. 2. Towards the end of the hearing, the Chief Executive Officer of the entity who owns the aged care facility said: ... we accept that however the reason why we are sitting here today is not because we are not being paid because with a caveat [on ZFY's house] at some stage we will be paid. We have a caveat over the property. It's because the methodology and the valuation applied to [ZFY's] property is about 60% of market value and if we release the caveat then our legal advice is that we are complicit in elder abuse with financial perspective. And that is our concern…we do not wish to be complicit in elder abuse and that's why we've said before we agree on this course of action we need you to hear why we've asked for the financial management order. (Words in brackets added.) 1. The manager who lodged the application on behalf of the facility also said: … all we wanted to do was wait until the hearing to see what the outcome was and whether we felt comfortable in not being implicit (sic) in moving forward – when we agreed to the $150,000 we thought the house was being sold as in a sale and the money would just be transferred to pay the RAD [refundable accommodation deposit] and it was when we were made aware by our legal team what it was actually a transfer from [ZFY] to [ZFY's son] that we became uncomfortable with moving forward in paying the $150,000 which I've already told you so we thought we'd just step back and let the Tribunal hear it. (Words in brackets added.) 1. ZFY's son denied any allegation of impropriety and provided some documents to the Tribunal to support his version of events. The Tribunal's findings and reasons 1. After summarising parts of the evidence about whether there was a need for a financial manager, the Tribunal found, at [32], that: The fact that there is currently a dispute between [ZFY] and [the aged care facility] is not, in the view of the Tribunal, a sufficient basis for [ZFY] deciding not to pay even the DCF (daily care fee), which is payable by a resident of a nursing home and amounts to 85% of [ZFY's] pension. [ZFY's son] has not demonstrated the ability to at least resolve the issue of the payment of the DCF. (Words in brackets added.) 1. At [33], the Tribunal mentions the allegations about ZFY's son's intention to purchase his father's house at well below fair market value and ZFY's son's denial of that allegation. But the Tribunal makes no finding of fact about that matter. 2. The Tribunal's reasoning as to whether it was in ZFY's best interests for a financial order to be made is at [35] and [36]: The Tribunal is satisfied that the evidence set out above reveals that [ZFY's son] and [the aged care facility] have reached an impasse, whereby they find it impossible to communicate with each other in relation to financial matters. This has resulted in [ZFY's] accommodation fees not being paid. This has a direct effect on his dignity and may place his accommodation at risk. This is not in his best interests. The Tribunal is satisfied that this impasse cannot be resolved on an informal basis and is, therefore, satisfied that there is a need to appoint a financial manager, at least in the short term, to manage [ZFY's] affairs and to resolve this dispute. The financial manager is required to make decisions about the sale of [ZFY's] property and the payment of [ZFY's] accommodation fees. (Words in brackets added.) Grounds of appeal Summary 1. ZFY's son is entitled to appeal "on a question of law" but needs the Appeal Panel's permission to appeal on any other ground: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2). His grounds are listed in an attachment to the Notice of Appeal and in a letter dated 9 August 2017. Although ZFY's son did not indicate in the Notice of Appeal that he was appealing on grounds other than questions of law, he clarified at the hearing that that was his intention. The aged care facility was not prejudiced by that clarification because they have had a reasonable opportunity to respond to the grounds of appeal. 2. At the conclusion of the hearing we made directions for the parties, including the guardian ad litem for ZFY, to give submissions on certain issues to the Tribunal and each other. We have taken those submissions into account but few relate to the basis on which we have allowed the appeal. 3. We begin by setting out our reasons for granting leave to appeal on a question other than a question of law. We go on to give brief reasons for rejecting the other grounds of appeal. Errors or injustice 1. In various grounds of appeal ZFY's son mentions the allegations made by the manager and the CEO at the hearing, that he intended to purchase his father's home at below the fair market price. In addition to denying that allegation, ZFY's son said that he was not given an adjournment or any further opportunity to refute it. ZFY's son asked the Tribunal for an opportunity "to prove that the allegations are false and to use this to break the current financial impasse referred to during the hearing". Despite the fact that the aged care facility said that that allegation was the only reason for the application, the Tribunal made no finding of fact about whether it was correct. 2. There was evidence before the Tribunal, which did not appear to be in dispute, that there was a history of a close and supportive relationship between ZFY and his son. ZGA had paid for his father's home care fees from his own funds for a significant length of time before ZFY went into residential care. In fact, from the time of his admission to the facility until early 2017, ZFY's son had been paying the difference between his father's pension income and his fees from his own funds. ZFY's son's position was that the "impasse" as described by the Tribunal was the result of the claim by the aged care facility that he was attempting to financially exploit his father by purchasing his father's home at below market value. It was for that reason that the facility refused to deal with him until the outcome of the application was known. 3. One of the bases on which leave can be granted to appeal on a question other than a question of law, is where there is "an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand": Collins v Urban [2014] NSWCATAP 17 at [84]. 4. The "error" in this case is that the Tribunal made a financial management order and appointed the NSW Trustee as ZFY's financial manager without making a finding about a critical factual issue. The aged care facility maintains that the only reason for the impasse is ZGA's intention to purchase his father's property at below market value. The Tribunal did not make a finding of fact about that allegation or take it into account when deciding whether it was in ZFY's best interests for an order to be made. The Tribunal should have taken into account all the circumstances about the allegation of financial abuse before making a finding. Those circumstances include the evidence of the role that ZFY's son had taken in his father's life and financial affairs prior to the events leading up to the application being made to the Tribunal and the evidence that it was the facility's concern about the possibility of financial abuse that played a significant role in the impasse between ZFY's son and the facility. 5. The Tribunal, instead, based its conclusion that there was a need for an order on its finding that ZFY's accommodation fees were not being paid and that the impasse between the aged care facility and ZGA could not be resolved on an informal basis. Because the welfare and interests of the person must be given paramount consideration, the accumulation of a debt by a person who has an attorney acting on their behalf will, in some circumstances, justify the making of a financial management order. However, in the particular circumstances of this case, the Tribunal should have made findings about the allegation before deciding whether to make the order. We have reached that conclusion because of the centrality of the facility's concern that ZGA's actions amounted to elder abuse. We have also taken into account ZGA's evidence that the accrual of ZFY's debt was, in part, a consequence of the impasse. The facility had refused to deal with ZGA until the outcome of the application was known. 6. The potential "injustice" in this case is that ZFY has been deprived of the benefit of a close family member, who he appointed as his attorney, managing his financial affairs. 7. Whether or not this injustice or error amount to errors of law, the allegation of financial abuse is highly relevant to the question of whether it is in ZFY's best interests for a financial management order to be made. This is a protective jurisdiction and we are satisfied that the Tribunal has failed to make a finding of fact that is central to its decision and that, as a result, a potential injustice has occurred. The appropriate order is to direct that the whole case be reconsidered by the Tribunal, with further evidence: NCAT Act, s 81(c) and (e). Other grounds of appeal 1. Having decided to direct the Tribunal to reconsider the matter with further evidence, we do not need to address the grounds of appeal relating to breaches of procedural fairness in detail. However, we do not accept that the Tribunal failed to afford ZFY's son a reasonable opportunity to suggest an alternative person as a suitable financial manager. ZFY's son was on notice that there was a possibility that the NSW Trustee and Guardian would be appointed and that allegations were made that he should not be considered a suitable person to be a private manager. 2. Nor do we need to take into account the new evidence that the parties submitted on appeal. The parties may provide any relevant material to the Tribunal when it reconsiders the application. 3. We do not uphold any of the other grounds of appeal including the assertion that ZFY's health has deteriorated since the orders were made, that ZFY does not want the order or that the Tribunal made its decision 'reluctantly'. None of those grounds discloses an error or injustice in the circumstances of this case. 4. As well as denying the allegation about the purchase price of the property not being fair market value, ZFY's son denied other allegations made by the manager. For example, he denied that the arrears were $10,000. ZFY's son also asserted that the manager had not proved all the claims she made against him in the application for a financial management order. If any of these allegations are relevant to the issues to be determined when the Tribunal reconsiders the application, they can be ventilated at that time. Orders 1. Leave is granted for ZGA to appeal on a question other than a question of law. 2. The following orders of the Tribunal made on 28 July 2017 are set aside: 1. The estate of ZFY is subject to management under the NSW Trustee and Guardian Act 2009. 2. The management of the estate of ZFY is committed to the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within 1 year. 1. The Tribunal is directed to reconsider the application for a financial management order with further relevant evidence. ********** ​ 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: 18 December 2017