CTS v NSW Trustee and Guardian [2017] NSWCATAD 217

CTS v NSW Trustee and Guardian [2017] NSWCATAD 217

Section 68(1) of the NSW Trustee and Guardian Act 2009 (NSW) is a special power allocating to the Supreme Court and NCAT, not the NSW Trustee and Guardian, the power to require a manager to give security to the NSW Trustee in respect of estate management. Read in context, including the allocation of roles in Division 2 of Part 4.5 and the NSW Trustee and Guardian's ancillary oversight role under s 68, the general powers in ss 64, 65 and 66 were not intended to confer the same power or a subset of it on the NSW Trustee and Guardian. The surety bond decision was therefore made without power, although NCAT had jurisdiction to review it, and the correct decision was to set it aside.

Jurisdiction
Australia
Judgment Date
30 June 2017
Procedural Posture
Administrative Review of NSW Trustee and Guardian Decision / Review of Internal Review Decision in the Administrative and Equal Opportunity Division of NCAT
Outcome
The decision of the NSW Trustee and Guardian made on 2 August 2016 that a surety bond should apply to CTS's wife's estate was set aside.
Legal Topics
['nsw Trustee and Guardian Powers' 'surety Bond for Managed Estate' 'security in Respect of Management of Estate' 'jurisdiction to Review Decision Made Without Power' 'general and Special Statutory Powers']
['administrative Law' 'guardianship and Financial Management' 'statutory Interpretation'] ['nsw Trustee and Guardian Powers' 'surety Bond for Managed Estate' 'security in Respect of Management of Estate' 'jurisdiction to Review Decision Made Without Power' 'general and Special Statutory Powers']

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Procedural Posture

Administrative Review of NSW Trustee and Guardian Decision / Review of Internal Review Decision in the Administrative and Equal Opportunity Division of NCAT

Legal Issues

  1. 1 ["Whether the NSW Trustee and Guardian had power to decide that a surety bond should apply to CTS's wife's estate." 'Whether the Tribunal had jurisdiction to review the security decision.' 'What the correct and preferable decision was if the security decision was made without power.']

Ratio Decidendi

Section 68(1) of the NSW Trustee and Guardian Act 2009 (NSW) is a special power allocating to the Supreme Court and NCAT, not the NSW Trustee and Guardian, the power to require a manager to give security to the NSW Trustee in respect of estate management. Read in context, including the allocation of roles in Division 2 of Part 4.5 and the NSW Trustee and Guardian's ancillary oversight role under s 68, the general powers in ss 64, 65 and 66 were not intended to confer the same power or a subset of it on the NSW Trustee and Guardian. The surety bond decision was therefore made without power, although NCAT had jurisdiction to review it, and the correct decision was to set it aside.

Court Disposition

The decision of the NSW Trustee and Guardian made on 2 August 2016 that a surety bond should apply to CTS's wife's estate was set aside.

Orders

  • ["The decision of the NSW Trustee and Guardian made on 2 August 2016 that a surety bond should apply to CTS's wife's estate is set aside."]