BPY v BZQ [2015] NSWCATAP 33

BPY v BZQ [2015] NSWCATAP 33

Orders made by the Guardianship Division are set aside due to failure to provide adequate reasons and insufficient consideration of evidence concerning capacity; applications are remitted for re-determination by the Guardianship Division with further evidence to be obtained.

Parties
Appellant: BZR; Respondent (ap 14/51960)/appellant (ap 14/51727): BPY; Respondent: BZQ; Respondent (ap 14/51727): S Stuart, guardian ad litem for BZR; Respondent: NSW Trustee and Guardian; Respondent: Public Guardian
Jurisdiction
Australia
Judgment Date
05 March 2015
Procedural Posture
Appeal / Appeal Panel Decision Following Internal Appeals From Guardianship Division
Outcome
Appeal in BZR v BPY (AP 14/51960) dismissed; appeal in BPY v BZQ (AP 14/51727) upheld and applications remitted for reconsideration
Legal Topics
Power of Attorney, Enduring Guardianship, Application for Financial Management Order, Application for Guardianship Order, Capacity of Subject Person, Tribunal Procedural Fairness
Guardianship Civil Procedure Power of Attorney Enduring Guardianship Application for Financial Management Order Application for Guardianship Order Capacity of Subject Person Tribunal Procedural Fairness

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Parties

BZR

Appellant

BPY

Respondent (ap 14/51960)/appellant (ap 14/51727)

BZQ

Respondent

S Stuart, guardian ad litem for BZR

Respondent (ap 14/51727)

NSW Trustee and Guardian

Respondent

Public Guardian

Respondent

Procedural Posture

Appeal / Appeal Panel Decision Following Internal Appeals From Guardianship Division

Legal Issues

  1. 1 Whether the Tribunal failed to give adequate reasons for its decision
  2. 2 Whether the Tribunal erred in granting leave for Mr Stojanovic to appear for both BZR and BZQ
  3. 3 Whether there was sufficient evidence of BZR's capacity or incapacity

Ratio Decidendi

Orders made by the Guardianship Division are set aside due to failure to provide adequate reasons and insufficient consideration of evidence concerning capacity; applications are remitted for re-determination by the Guardianship Division with further evidence to be obtained.

Court Disposition

Appeal in BZR v BPY (AP 14/51960) dismissed; appeal in BPY v BZQ (AP 14/51727) upheld and applications remitted for reconsideration

Orders

  • Leave granted to Mr Neil Jackson, barrister, to represent Mr Stephen Stuart, guardian ad litem for BZR in the appeal proceedings.
  • Leave granted to Ms Jane Merkel, barrister, to represent BPY in the appeal proceedings.