BTD v NSW Trustee and Guardian [2015] NSWCATAP 87

BTD v NSW Trustee and Guardian [2015] NSWCATAP 87

The appeal on a question of law failed because BTD did not provide evidence, such as a recording or transcript, establishing that the Tribunal failed to report back the substance of BTF's evidence or otherwise denied procedural fairness. Leave to appeal on other grounds was refused because the capacity finding was open on the evidence, including Dr Stancevic's report; the alleged false or misleading evidence did not show a material error or unfair result; and the proposed further evidence was available at the original hearing and was not likely to have produced a different result.

Jurisdiction
Australia
Judgment Date
08 May 2015
Procedural Posture
Internal Appeal From a Guardianship Division Decision Concerning Review of an Enduring Power of Attorney / Appeal Panel Decision
Outcome
The appeal on a question of law was dismissed and leave was refused for the appellant to appeal on any other ground.
Legal Topics
['internal Appeal' 'enduring Power of Attorney' 'procedural Fairness' 'capacity' 'leave to Appeal on Grounds Other Than a Question of Law' 'further Evidence']
['guardianship' 'administrative Law' 'powers of Attorney'] ['internal Appeal' 'enduring Power of Attorney' 'procedural Fairness' 'capacity' 'leave to Appeal on Grounds Other Than a Question of Law' 'further Evidence']

Case Brief

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Procedural Posture

Internal Appeal From a Guardianship Division Decision Concerning Review of an Enduring Power of Attorney / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Guardianship Division denied procedural fairness by taking evidence from BTF in the absence of the other parties.' 'Whether leave should be granted to appeal on the ground that the finding that BTF had capacity to enter into the enduring power of attorney was against the weight of evidence.' 'Whether leave should be granted on the ground that evidence or findings about payments and proceeds from the Estonian property were false or misleading.' 'Whether BTD should be given leave to adduce further evidence in the form of a 2009 agreement.']

Ratio Decidendi

The appeal on a question of law failed because BTD did not provide evidence, such as a recording or transcript, establishing that the Tribunal failed to report back the substance of BTF's evidence or otherwise denied procedural fairness. Leave to appeal on other grounds was refused because the capacity finding was open on the evidence, including Dr Stancevic's report; the alleged false or misleading evidence did not show a material error or unfair result; and the proposed further evidence was available at the original hearing and was not likely to have produced a different result.

Court Disposition

The appeal on a question of law was dismissed and leave was refused for the appellant to appeal on any other ground.

Orders

  • ['The appeal on a question of law is dismissed.' 'Leave is refused for the appellant to appeal on any other ground.']