AHB v NSW Trustee and Guardian

Power to grant a stay of the decision under appeal

1. The power to stay the operation of a decision under appeal is conferred by s 43 of the NCAT Act in these terms: 43 Effect of pending general applications and appeals … (2) A pending … appeal does not affect the operation of the decision to which the … appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending … appeal relates as it considers appropriate to secure the effectiveness of the determination of the … appeal.
2. The NCAT Act does not specify the factors to be taken into account in determining whether the discretionary power to stay the operation of a decision under appeal should be exercised. In Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37, after examining the authorities, Wright J at [9], summarised the principles to be applied in determining whether or not to grant a stay pending the determination of the appeal (citations omitted): 1. Generally a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour - s 43(2) and (3) of the Act. 2. In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order. 3. The mere lodgement of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay. 4. An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal - s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay. 5. The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision. 6. The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. 7. In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. 8. Finally, the overriding principle in an application for a stay is to ask what the interests of justice require.

The relevant discretionary factors

1. While successful parties are entitled to the benefit of decisions at first instance, courts and tribunals are generally reluctant to enforce decisions under appeal if to do so would be to render the appeal nugatory. Unless it is evident that an appeal is hopeless and is being instituted to postpone the inevitable rather than to redress an error in the decision-making process, all other things being equal, it will generally be in the interests of justice to allow the appeal process to reach its proper conclusion.
2. That said, AHB bears the onus of demonstrating, on balance, that a stay should be granted.
3. The Trustee submits that AHB's appeal has no prospects of success and that therefore a stay ought not be granted. It argues, in effect, that the appeal is simply a device employed by AHB to delay a decision which was made in the best interests of his mother. For these reasons, and because it is not in the financial interests of the protected person for the sale of the property to be further delayed, the stay application should be dismissed.
4. A significant matter to be taken into account on the stay application is the prejudice that may or may not be suffered by the protected person during the period up to the determination of the appeal. AHB claims that to address the shortfall identified by the Trustee between his mother's income and expenses, he has been paying $1000 "rent" per fortnight to the Trustee.
5. I note that as early as September 2011 AHB indicated he was not in a position to contribute funds to prevent the sale of the property. As late as September 2015 he continued to indicate he was unable to contribute financially to prevent the sale of the property.

Should the application for a stay be granted?

1. AHB has occupied his mother's home for many years now. The house is her primary asset. Since 2011, the Trustee has been attempting to sell the house for her benefit. AHB has resisted this approach at every step. There is evidence to suggest that he either does not recognise that in this argument about the sale of the property the primary question is his mother's best interests, or that he deliberately ignores that question.
2. While the impatience and anxiety of the Trustee to proceed to the sale of the property is both understandable and legitimate, it is also necessary that the interests of justice be fully recognised. Justice must not only be done but must be seen to be done.
3. In my view, it is important to recognise that AHB is an unrepresented litigant. His notice of appeal must be considered in this light. He asserts that errors of law were made by the Tribunal. In particular, he alleges that the Tribunal at first instance did not take his mother's wishes into account when affirming the Trustee's decision. As we noted above this was the very issue that exercised Basten JA in the Court of Appeal. It would be premature on this application to deal with that issue in summary fashion.
4. AHB also claims that the Tribunal made significant errors of fact that effectively vitiate the decision under appeal.
5. I am not prepared to find that the Appeal is so hopeless or lacking any real prospects of success that it is appropriate to render it nugatory by dismissing the stay application.
6. In my opinion the stay is necessary to secure the effectiveness of the Appeal. While the considerations are finely balanced and I recognise that the Trustee may very well succeed in the appeal, I have concluded that it is appropriate to stay the Trustee's decision pending the outcome of the appeal, subject to certain conditions.
7. My principal concern is that AHB's mother not be placed at any continuing financial disadvantage due to the necessary delay in hearing the appeal. In my opinion, that prejudice can be met if AHB is required to pay a suitable sum into an account administered on his mother's behalf by the Trustee. My decision should not be taken to indicate that in my opinion providing rent is paid by AHB, the correct and preferable is not to sell the property.
8. In my view, therefore it is appropriate to grant the application for a stay but to impose the following conditions.
9. First, that within 10 days of the date of this decision, AHB files and serves evidence in support of his claim that since 10 May 2016 he has been depositing fortnightly payments of $1000 into an account nominated by the Trustee. That evidence must take the form of an affidavit prepared by AHB, which annexes supporting evidence such as copies of bank statements, which identify the payments AHB claims to have made to the Trustee. If, AHB is unable to provide evidence to support his claim of having deposited fortnightly payments of $1000 into an account nominated by the Trustee since 10 May 2016, within 10 days of the date of this decision, he must deposit a sum equivalent to $1,000 per fortnight for the period 10 May 2016 to date (approximately $ 16,000), less any amount deposited during that period into an account nominated by the Trustee, for which AHB can provide evidence of having so deposited.
10. Second, that AHB continue to make fortnightly payments of $1000 into an account nominated by the Trustee. Third, that within two days of making each fortnightly payment referred to in Condition 2, AHB files and serves evidence of having made such payment.
11. If AHB fails to comply with any of these conditions, the stay is automatically lifted unless further extended by express order of the Tribunal. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2016