DVB v NSW Trustee and Guardian [2021] NSWCATAD 105

DVB v NSW Trustee and Guardian [2021] NSWCATAD 105

The correct and preferable decision was to set aside the Trustee's refusal to act because, although a lack-of-capacity claim was not shown to be likely to succeed and undue influence was only arguable, the available evidence made claims based on unconscionable conduct and the Contracts Review Act 1980 (NSW) likely to succeed. Maria was in a position of special disadvantage arising from age, frailty, cognitive impairment, limited language and financial experience, dependency on the respondents' family, lack of independent advice, and the substantial effect of the transfer on her financial independence. Given the potential recovery of valuable properties and the importance of funding...

Jurisdiction
Australia
Judgment Date
30 March 2021
Procedural Posture
Administrative Review of a Decision of the NSW Trustee and Guardian Under S 62 of the NSW Trustee and Guardian Act 2009 (nsw) / Merits Review in the Administrative and Equal Opportunity Division of NCAT
Outcome
The Trustee's decision was set aside and a substituted decision was made requiring the NSW Trustee and Guardian to commence action in the NSW Supreme Court in accordance with the reasons.
Legal Topics
['review of NSW Trustee and Guardian Decision' "protected Person's Property" 'unconscionable Conduct' 'special Disadvantage' 'undue Influence' 'mental Capacity' 'unjust Contracts Under the Contracts Review Act 1980 (nsw)' 'correct and Preferable Decision']
['administrative Law' 'equity' 'contracts' 'guardianship and Financial Management'] ['review of NSW Trustee and Guardian Decision' "protected Person's Property" 'unconscionable Conduct' 'special Disadvantage' 'undue Influence' 'mental Capacity' 'unjust Contracts Under the Contracts Review Act 1980 (nsw)' 'correct and Preferable Decision']

Case Brief

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Procedural Posture

Administrative Review of a Decision of the NSW Trustee and Guardian Under S 62 of the NSW Trustee and Guardian Act 2009 (nsw) / Merits Review in the Administrative and Equal Opportunity Division of NCAT

Legal Issues

  1. 1 ["Whether the NSW Trustee and Guardian's decision not to commence Supreme Court proceedings to set aside the disputed transfer was the correct and preferable decision." 'Whether Maria Rydzewski lacked mental capacity to transfer three properties to Jenny Rydzewski and Krystina Rydzewski.' 'Whether the disputed transfer was liable to be set aside for unconscionable conduct.' 'Whether the disputed transfer was liable to be set aside for undue influence.' 'Whether the disputed transfer was unjust in the circumstances relating to the contract at the time it was made under the Contracts Review Act 1980 (NSW).' "Whether commencing litigation was in Maria Rydzewski's welfare and interests having regard to prospects of success, costs, and her financial position."]

Ratio Decidendi

The correct and preferable decision was to set aside the Trustee's refusal to act because, although a lack-of-capacity claim was not shown to be likely to succeed and undue influence was only arguable, the available evidence made claims based on unconscionable conduct and the Contracts Review Act 1980 (NSW) likely to succeed. Maria was in a position of special disadvantage arising from age, frailty, cognitive impairment, limited language and financial experience, dependency on the respondents' family, lack of independent advice, and the substantial effect of the transfer on her financial independence. Given the potential recovery of valuable properties and the importance of funding...

Court Disposition

The Trustee's decision was set aside and a substituted decision was made requiring the NSW Trustee and Guardian to commence action in the NSW Supreme Court in accordance with the reasons.

Orders

  • ['The decision of the NSW Trustee and Guardian to take no further action to have the disputed transfer set aside, made on 11 January 2019 and affirmed on internal review on 12 March 2019, is set aside.' 'In substitution for that decision the NSW Trustee and Guardian is to commence action in the NSW Supreme Court in...