NSW Trustee and Guardian v FYV [2024] NSWCATAP 243

NSW Trustee and Guardian v FYV [2024] NSWCATAP 243

The Tribunal failed to engage with and address the NSW Trustee's substantial argument that the reverse mortgage or rental options were not feasible to meet the Aunt’s financial needs, constituting a denial of procedural fairness and a constructive failure to exercise jurisdiction. Upon rehearing, despite the Aunt’s wishes to retain her home, the only certain and appropriate way to meet her pressing financial liabilities and needs, given lack of reliable evidence supporting alternatives, was to affirm the decision to sell the property, which gave paramount consideration to her welfare and interests as required by s 39 of the NSW Trustee and Guardian Act 2009 (NSW).

Parties
Appellant: NSW Trustee and Guardian; First Respondent: FVY; Second Respondent: GBZ; Third Respondent: CGA; Fourth Respondent: GCH
Jurisdiction
Australia
Judgment Date
28 November 2024
Procedural Posture
Administrative Review Appeal / Appeal Panel Decision
Outcome
Appeal allowed. The NSW Trustee’s original decision to sell the property is affirmed.
Legal Topics
Administrative Review, Merits Review, Management of Protected Estates, Sale of Property by Trustee, Procedural Fairness, Section 39 Principles
Administrative Law Guardianship Administrative Review Merits Review Management of Protected Estates Sale of Property by Trustee Procedural Fairness Section 39 Principles

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Parties

NSW Trustee and Guardian

Appellant

FVY

First Respondent

GBZ

Second Respondent

CGA

Third Respondent

GCH

Fourth Respondent

Procedural Posture

Administrative Review Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether the Tribunal failed to have regard to a substantial, clearly articulated argument of the NSW Trustee
  2. 2 Whether the Tribunal failed to afford procedural fairness to the NSW Trustee
  3. 3 Whether the Tribunal gave paramount consideration to the welfare and interests of the protected person under s 39(a) NSW Trustee and Guardian Act 2009 (NSW)

Ratio Decidendi

The Tribunal failed to engage with and address the NSW Trustee's substantial argument that the reverse mortgage or rental options were not feasible to meet the Aunt’s financial needs, constituting a denial of procedural fairness and a constructive failure to exercise jurisdiction. Upon rehearing, despite the Aunt’s wishes to retain her home, the only certain and appropriate way to meet her pressing financial liabilities and needs, given lack of reliable evidence supporting alternatives, was to affirm the decision to sell the property, which gave paramount consideration to her welfare and interests as required by s 39 of the NSW Trustee and Guardian Act 2009 (NSW).

Court Disposition

Appeal allowed. The NSW Trustee’s original decision to sell the property is affirmed.

Orders

  • Appeal is allowed.
  • The decision made by the NSW Trustee and Guardian on 7 June 2023 to sell the Aunt's property is affirmed.