DSM v NSW Trustee and Guardian [2019] NSWCATAD 193

DSM v NSW Trustee and Guardian [2019] NSWCATAD 193

The Tribunal determined that, taking into account the evidence of MSD's current needs, consistent wishes to downsize, available expert, financial and medical evidence, and considering the paramount importance of MSD's welfare and interests under s39 of the Act, the sale of the Family Home and the purchase of a suitable apartment for MSD up to $1 million is the correct and preferable decision. This arrangement best meets MSD's accommodation, care, and financial needs.

Parties
Applicant: DSM; First Respondent: NSW Trustee and Guardian; Second Respondent: DUA; Third Respondent: DUB
Jurisdiction
Australia
Judgment Date
16 September 2019
Procedural Posture
Administrative Review / Final Decision
Outcome
Application for review allowed; decision set aside; orders made for sale and purchase.
Legal Topics
Review Under NSW Trustee and Guardian Act 2009, Financial Management Order, Interests and Welfare of Protected Person, Whether to Sell Property of Protected Person
Administrative Law Guardianship Law Review Under NSW Trustee and Guardian Act 2009 Financial Management Order Interests and Welfare of Protected Person Whether to Sell Property of Protected Person

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Parties

DSM

Applicant

NSW Trustee and Guardian

First Respondent

DUA

Second Respondent

DUB

Third Respondent

Procedural Posture

Administrative Review / Final Decision

Legal Issues

  1. 1 Whether the decision to not sell the Family Home was correct and preferable
  2. 2 Whether sale of the Family Home is in the interests and welfare of MSD
  3. 3 Appropriate consideration of protected person’s wishes and needs under s39 of the NSW Trustee and Guardian Act 2009

Ratio Decidendi

The Tribunal determined that, taking into account the evidence of MSD's current needs, consistent wishes to downsize, available expert, financial and medical evidence, and considering the paramount importance of MSD's welfare and interests under s39 of the Act, the sale of the Family Home and the purchase of a suitable apartment for MSD up to $1 million is the correct and preferable decision. This arrangement best meets MSD's accommodation, care, and financial needs.

Court Disposition

Application for review allowed; decision set aside; orders made for sale and purchase.

Orders

  • Leave is granted for DSM to file the application seeking administrative review of the decision made by the first respondent on 21 December 2018 to 7 February 2019.
  • The decision of the first respondent made on 21 December 2018 is set aside.