DZJ v NSW Trustee and Guardian

Catchwords

197 CLR 172 Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe [1986] HCA 33(1986) 162 CLR 1 Edwards v Noble [1971] HCA 5477 ALJR 1598 Category: Principal judgment Parties: DZJ (Appellant)

Judgment (7 paragraphs)

[1]

REASONS FOR DECISION

By Notice of Appeal filed 28 February 2022 "DZJ" (the Appellant) appealed against orders made by the Tribunal on 21 February 2022 affirming the decision of the NSW Trustee and Guardian (the Trustee) of 2 March 2021 to sell the Appellant's mother's Ashfield property.
On 1 March 2022, the Appellant's sister, to whom we shall refer as "MS", was named as a Second Respondent to the appeal. MS has taken no active part in the appeal.
By its Reply filed on 16 March 2022 the Trustee sought the dismissal of the Appellant's appeal.
The decision of the Tribunal at first instance has been stayed pending the determination of the present appeal.
The material before the Appeal Panel comprised a folder of documents which were before the Tribunal at first instance filed by the Respondent on 9 March 2022 (HB), a bundle of documents 20 pages in length entitled "Appeal Panel Case 22/57900 DZJ vs NSWTG Hearing Book of DZJ" filed on 18 May 2022 by the Appellant (AB), and two further volumes of documents filed by the Appellant on 18 May 2022: "AEOD Hearing Book & Exhibits" and "GD Hearing Book". The Appeal Panel has read all of those documents. Some of the documents in AB, although available prior to the decision of the Tribunal at first instance, were not before it. Others, it is apparent from the dates on them, came into existence after the decision at first instance.

Reasons for the decision of the Tribunal at First Instance

The reasons for the decision of the Tribunal at first instance (Reasons) accurately identified [1] the dispute before it and the parties to the dispute in the following terms: "This is a review against the decision made by the NSW Trustee on 2 March 2021 to sell a property owned by FHF, an 84 year old woman with advanced dementia who now resides in an aged care facility (the mother)." And that: "The NSW Trustee has been her financial manager since 6 June 2018 and her son, DZJ, is the applicant in this matter. FHF's daughter, FHE, (the daughter) is the second respondent in the proceedings. Prior to his mother entering care, DZJ, (the son) cared for his mother in the Ashfield property which is the subject of these proceedings and where the son still lives. There is no dispute that, in the light of the mother's advanced dementia, she would be unable to contribute to these proceedings."
The "background" to the proceedings was uncontroversially recorded by the Tribunal at first instance [3] to [9]. The Tribunal recorded that the mother was placed in care on 14 October 2015, prior to which time the Appellant had been her carer and was living with her in her Ashfield property. The Appellant has continued to live in the property since his mother went into care. For the purpose of "calculating the mother's financial situation, the Ashfield property was exempt from being counted as an asset for two years after the mother went into care, namely until 13 October 2017" [3].
On 5 June 2018, the Guardianship Division of the Tribunal ordered that the mother's estate be made subject to management by the Trustee in the light of "the inability of the son and the daughter to work together as attorneys appointed jointly by their mother" [4].
The mother was paying a "daily accommodation contribution" towards her residential care until March 2019 when "her assets fell below the relevant threshold, at which point she was no longer required to pay the daily accommodation contribution and instead became a fully supported resident of her care facility". The mother had the Aged Pension, which she had hitherto been receiving, cancelled by Centrelink on 17 December 2019 [5]. From 28 September 2019 the Appellant made rental payments into the mother's bank account, which is managed by the Trustee [6].
On 29 July 2019 the Trustee made a decision to sell the Ashfield property. That decision was affirmed on internal review, but subsequently set aside by the Tribunal, which "recommended" that the NSW Trustee "take steps to determine the mother's eligibility for a pension" [7].
On 17 December 2020 the Trustee made a new decision, which was affirmed on internal review on 2 March 2021, to sell the Ashfield property "in order to meet the mother's ongoing accommodation and care costs and so she would not be required to fund ongoing property expenses" [8]. The Tribunal at first instance heard and determined the Appellant's application to review that decision, the grounds for which were stated to be [9]: "The Trustee and Guardian decision relies on the cancellation of [my mother's] pension due to their inaction in reporting to Centrelink. They have repeatedly misrepresented Centrelink rules. It took them over a year to notify Centrelink of their client's position since the last NCAT hearing where it was implied by the Member that they should attempt to restore the pension ASAP. They engineered financial sabotage in order to sell the client's home against the client's financial interest and against the General Principles 4(e) of the NSW Guardianship Act 1987."
Under the heading "Relevant legal matters" the Tribunal referred to the legislative provisions which were relevant to the financial management of the mother's estate [10]-[16]. These do not assume significance for present purposes.
Six "issues" were identified by the Tribunal at first instance as requiring determination [17]. The first issue which the Tribunal considered [18] to [23] was "Is the mother entitled to the Aged pension?". In that context the Tribunal recorded that, to be eligible for the Aged pension the mother's income and assets could not be "greater than $797,500" [18], for the purpose of which calculation the Ashfield property, which was uncontroversially worth more than that sum, "must not be regarded as an assessable asset".
The Tribunal found that, for the Ashfield property not to be an assessable asset [19] four conditions had to be satisfied, they being: "(i) the mother must have entered a care situation between 1 July 2004 and 31 December 2016; and (ii) after 1 January 2017 the mother must not have re-entered aged care after having been absent for more than 28 days (other than being on leave); and (iii) the mother must be accruing a liability to pay either an accommodation charge, a daily accommodation payment or daily accommodation contribution; and (iv) her principal home must be rented and she must be receiving the rent."
It was not in contest in the proceedings at first instance, or before the Appeal Panel, that the first two of the relevant conditions were satisfied, and that the Tribunal so found [20].
The Tribunal found [21], for the reasons which it later recorded, that it was satisfied that the Appellant was "renting the Ashfield property and that since October 2019, he has been making payments into his mother's account of approximately $660 per week. Residing with the Applicant in the Ashfield property are lodgers who contribute towards the rental payments".
The Tribunal also found that since March 2019 the mother has been a "fully supported resident, has not been accruing a liability to pay either an accommodation, a daily accommodation payment or a daily accommodation contribution as her assets fell below the applicable threshold of $797,500", as the mother's major asset, her Ashfield property, was "not considered to be an assessable asset" for the purpose of that calculation [22].
The Tribunal at first instance further found that because the mother was "no longer accruing a liability to pay either an accommodation charge, a daily accommodation payment or daily accommodation", it could not be satisfied that she was eligible for an Aged pension. That finding is controversial in the appeal.
The Tribunal then considered [24] to [30] whether the mother's Aged pension was "cancelled in error?" and "What material was sent to Services Australia (Centrelink) to ascertain whether the mother is entitled to the Aged pension?".
With respect to the circumstances in which the first internal review of the Trustee's decision was set aside [24] the Tribunal recorded [25] a "timeline of what then transpired". The "timeline" included the entry on 23 December 2021 that "Services Australia (Centrelink) affirmed the decision to cancel the mother's pension, noting that as at 23 December 2021, the information requested on 8 December 2021 had not been supplied". The Trustee provided financial information relative to the mother to Centrelink on 18 December 2021. It is probable that the request for information by Centrelink was in fact made on 23 November 2021. The last entry on the "timeline" was of a telephone conversation between the Trustee and an officer of Centrelink on 18 January 2022, to which we shall later refer.
The Tribunal at first instance found [26] that "whilst all the documents provided by the [Appellant] were (eventually) forwarded to Centrelink by the [Trustee], arriving on 23 December 2021, they were not considered by the reviewing officer in his decision of the same day" which "given the lengthy history of this matter" was "very unfortunate".
The Tribunal found that there appeared to be two courses of action available to the Trustee in response to the cancellation of the mother's Aged pension. They were to seek a review of Centrelink's decision of 23 December 2021 in the Federal Administrative Appeals Tribunal (AAT), or to apply to Centrelink for a new pension [27]. The Tribunal recorded the contention of the Trustee that [28]: "neither course of action would be successful on either of two grounds: (i) the mother's pension was not cancelled in error as the Ashfield property was not leased prior to 28 September 2019 and accordingly, any review application to the AAT would fail; and (ii) the mother is not eligible for a pension because she no longer pays a daily accommodation charge."
The Tribunal accepted that it could not be satisfied that the Ashfield property was leased prior to 28 September 2019 and that, accordingly, the mother's pension was not "cancelled in error" [29]. The Tribunal was further satisfied [30] that the mother was not "accruing a liability to pay either an accommodation charge, a daily accommodation payment or daily accommodation contribution" and, on that basis, it could not be satisfied that she was entitled to receive an Aged pension.
The Tribunal then addressed the "rental status" of the Ashfield property [31]-[45]. The Tribunal referred to the decision of Centrelink on 17 October 2019 that the Ashfield property would become an assessable asset of the mother, the property not having been leased within the "two year grace period allowed after an owner goes into care" [32] and that, once the Ashfield property became assessable as an asset, the mother was no longer entitled to the Aged pension, which was cancelled in October 2019 [33].
The Tribunal referred to evidence provided by the Appellant with respect to the leasing of the Ashfield property [34]-[36], and found that, from 30 September 2019 until shortly prior to providing the information in December 2020, the details of rent paid by people lodging in the Ashfield property, together with bank statements for the Applicant and a "spreadsheet" were provided to the Trustee by the Appellant [35].
The Appellant stated to the Tribunal that from 21 March 2017 he had paid $60 rent per week "offset against money he spent on his mother, rates and utilities". The Tribunal referred [37] to a Residential Tenancy Agreement dated 19 March 2017 naming the Appellant "as both tenant and landlord" recording the obligation of the former to pay $60 per week rent.
The Tribunal found [38] there was no evidence before it "documenting rental payments by the [Appellant] for the period between 21 March 2017 and 28 September 2019, nor is there any record of payments made by the [Appellant] for his mother's care or to cover the rates and utility costs for the Ashfield property".
The Tribunal found [39] that there was no record of rental payments made by the Appellant until 28 September 2019 and that, accordingly, it could not be satisfied that the Appellant "did in fact pay rent to occupy the Ashfield property once the two year grace period elapsed on 13 October 2017" [41].
The Tribunal at first instance then considered the mother's "linguistic and cultural needs relevant to the application" [42]-[45]. Without diminishing the significance of those matters in the proceedings at first instance, they do not assume significance for present purposes, save to the extent that the tribunal found [45] that the Appellant had "the financial capacity to secure accommodation in the vicinity of his mother's residential home to enable him to continue his daily visits to her or, alternatively, to travel from his property in Port Macquarie to see her".
The Tribunal at first instance then considered "What is the current financial status of the mother?" [46]-[57]. The Tribunal [47] was not satisfied that the mother owes a debt to Centrelink. The Tribunal recorded [48] that there was no dispute that "the mother's finances have depleted such that she has become a fully supported resident at her care facility".
After recording "concerns" of the Trustee and MS with respect to the state of the Ashfield property and the mother's capacity to pay for any repairs required to be made to it, the Tribunal referred to a report from Archicentre dated 14 September 2018 suggesting that "immediate repairs" to the property would cost $15,900, with an estimate of $34,200 in total to complete other appropriate repairs.
The Tribunal accepted [51] the "findings" of the Trustee dated 25 February 2021 that "without the Ashfield property being sold, the mother's finances risk being depleted with [sic] 2.2 years" and that the mother lacked the financial resources to finance any repairs required to the Ashfield property should it continue to be leased, those matters "causing a cashflow shortfall that might hamper the mother's ability to buy additional products for her care and comfort" [51]. The Tribunal was satisfied [52] that the Trustee had never given the Appellant approval to sublet the property and that there was no lease of it in place.
The Tribunal recorded [53] that "the money deposited by the [Appellant] into his mother's account is variable and there is no rental agreement in place". For the reasons recorded by it, the Tribunal found [54] that, with the cancellation of the mother's Aged pension and the fact that she may not be entitled to have it restored "her account will continue to deplete", and was "currently at such a low level as to exempt her from any accommodation payments, making her a fully-funded resident of her aged care facility" without a "safety net to enable her to meet the cost of future repairs to the Ashfield property".
By reference to [56] to a letter to the Tribunal from MS, the Tribunal found [57] that "the mother's finances have depleted to such an extent as to bring her under the threshold for the payment of care fees, meaning that she is now a fully supported resident at her care facility" and that the mother "does not have the financial capacity to pay for any repairs to the Ashfield property, particularly as the rental payments made by the [Appellant] although irregular, can vary in their amount". The Tribunal further found that "even with rental payments being made by the [Appellant] in the absence of the Aged pension, the mother is not in a position to fund repairs to the Ashfield property" and that her funds will "continue to deplete such as to make it a concern that she may not be able to fund any additional items of comfort for herself".
The Tribunal then considered whether the decision to sell the Ashfield property was the "correct and preferable decision" [58]-[60]. The Tribunal reiterated the findings which it had earlier recorded [58] and summarised its reasons for concluding that the decision of the Trustee to sell the Ashfield property was the correct and preferable decision in the following terms: "(i) the mother's pension has been cancelled and, on the evidence before me, does not appear to have been cancelled in error; (ii) the mother does not appear to meet the criterion for the grant of a new Aged pension; (iii) the mother's funds have depleted to the extent that she is now a fully supported resident of her care facility; (iv) the mother does not have the funds to pay for any repairs required to ensure the Ashfield property is in a habitable state."
The Tribunal recorded [59] that it was "extremely disappointing" that the documentation requested by Centrelink with respect to the mother's pension was not "received within the requested period, resulting in the cancellation of the mother's pension being affirmed" without having regard to the material which was belatedly supplied on 23 December 2021. The Tribunal recorded that it was "also disappointing" that the Trustee had not "reapplied for a new pension for the mother, as was recommended" by the Centrelink reviewing officer in his request for further information on 23 November 2021.
The Tribunal concluded its reasons by recording [60] that: "Despite this, I am satisfied that, in all the circumstances, it is the correct and preferable decision that the Ashfield property be sold. This is because, even if the mother's Aged pension were to be restored, the Ashfield property would still need to be rented out. Even if the [Trustee] were to allow the [Appellant] to sublet the property to lodgers, access to the property would still be required to the property to determine whether it is habitable and what repairs it may require."
The Tribunal added [60] that it was satisfied that there was a "likelihood" that the Appellant would refuse access to the property which would "leave the mother open to being held liable for any safety issues that may arise in relation to the property". For those reasons, the Tribunal at first instance affirmed the decision of the Trustee to sell the Ashfield property.

The Appellant's Grounds of Appeal

Albeit in the context of his application for leave to appeal, the Appellant articulated his grounds of appeal in the following terms: "1 Due process was not followed with regard to granting legal representation for the Respondent and excusing failure of undertakings by NSWTG and excusing contempt of summons by Centrelink. 2 There were many errors of fact made by Senior Member Leal and important biased omissions. 3 The Senior Member glossed over NSWTG's failing to comply with Commonwealth Aged Pension Law. Not just their failure to report rent to Centrelink in the past but in continuing to not report it to "My Aged Care" so that correct Daily Accommodation Fees can be calculated. The omission gives a false premise upon which to have their client's pension denied enabling NSWTG to argue a case to sell the house because without the pension there is not enough money to pay aged care fees."
The Appellant did not appear to agitate his first ground, and nothing to which he has otherwise referred, or we have discovered for ourselves, suggests that error on a question of law has been established with respect to the decision under challenge, or that a basis for granting leave to appeal in reliance upon that ground has been demonstrated.
The second and third grounds, as the Appellant's oral submissions revealed them, effectively assert that the Tribunal made material errors of fact which vitiated its decision, or failed to have regard to relevant considerations in reaching its decision. If established, either of those challenges would establish error with respect to a question of law (Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 116, at [11], Prendergast v Western Murray Irrigation Ltd [2014] WCATAP 69, at [13]).
In the event that the Appellant's challenges are not found to establish error with respect to a question of law, and although the Appellant has not advanced his application for leave to appeal in reliance upon them, the Appeal Panel has considered the material relied upon by the Appellant in accordance with the principles stated in Ros which we have earlier recorded.
As is not in doubt, to agitate what emerges as the substance of his complaints, the Appellant needs leave to adduce further evidence.
In the course of his submissions, and without resiling from his complaints about the decision at first instance in this regard, the Appellant submitted that it was open to the Respondent to make a fresh application to Centrelink for a grant of the Aged Pension on behalf of his mother, which, the Appellant submitted, if made, would be successful. We do not understand it to be disputed that the Trustee could make a further application to Centrelink for a grant of the Aged Pension for the mother. The Tribunal at first instance impliedly accepted, at [59] that the Trustee could do so. We have not been referred to anything which establishes that such an application could not be made.
The Appellant sought to rely in support of his contentions on a document found at page 2 of AB headed "TRANSCRIPT - CENTRELINK - CENTRELINK DISCUSSION WITH [DZJ] WITH JORDAN (LOGON ID [redacted]), being "from recording made on 19 October 2021". As the date of it confirms, the transcript was available to the Appellant well prior to the hearing before the Tribunal at first instance. The Appellant has not adequately explained why he did not rely upon it at the first instance hearing. Unless the Trustee is unfairly prejudiced by doing so, we would not refuse leave on that basis in view of the fact that the Appellant is unrepresented, and that the Trustee could have made its own inquiries of Centrelink, and sought leave to adduce evidence of them to rebut the Appellant's assertions, and/or "buttress" its own case with respect to this issue (CDJ v VAJ [1998] HCA 67; 197 CLR 172, at [109]).
The Appellant placed particular reliance upon the statement by "Jordan" that "no … it doesn't matter what happened before, not at all, because she is applying for a clean slate. She would be applying for a clean slate now and if she met all of those … as far as I can tell … if she continues to meet all of those continues, we would continue to exempt the asset". The Appellant then said "So the principal home … as long as the principal home is rented NOW, the principal home doesn't have to have been rented at the 2 year mark. Correct?" "Jordan" is quoted as saying: "Correct, absolutely. Because there's no timeframe on this, there, there from what I can see here, there is actually no timeframe for "and the principal home is rented". It doesn't give any sort of timeframe with "rented on that legislation there, it just said it "is rented" which means, as far as I can tell, I am obviously not any sort of litigator or anything like that, but um "rented" is probably umm it "is rented" and there is no line saying "/has been rented for the full duration" it just says "is rented", and "is" is a past principle of the English language, sorry "present" principle, so "is rented" (meaning current tense) meaning as long as it is rented at this moment, as at the date that she applies, that would apply, as far as I can tell and it's not legal advice obviously."
Accepting, although the provenance of this transcript has not been established, that "Jordan" was an officer of Centrelink, and said what the Appellant quotes him as saying, as the transcript makes clear, this was not suggested to be "legal advice" and the person purportedly giving it did not suggest that he was "any sort of litigator or anything like that". The "legislation" to which Jordan alluded was not identified by him.
In his oral submissions the Appellant asserted that, pursuant to the "clean slate" approach which he submitted Centrelink would take to a fresh application for the Aged Pension on behalf of his mother, the fact that, since the 8 March 2022, $720 per week has been paid to the Trustee by way of rent with respect to Ashfield would result in a grant of the pension by Centrelink. It is not in contest that payments of that quantum have been made since 8 March 2022. The Tribunal at first instance found [21] that since October 2019 the Appellant had been making rental payments into his mother's account of approximately $666 per week, which was contributed to by "lodgers who contribute towards the rental payments".
Albeit for the purpose of the Appellant's stay application, the Trustee's case with respect to this issue is clearly articulated in its submissions of 8 March 2022, at paragraph 3. The Trustee there submitted that the evidence showed that "the protected person did not receive rental income from the property for at least 70 weeks after the appointment of the (Trustee) as manager of the protected person's estate". The Tribunal at first instance made findings in those terms [38-40], as was open to it. The Trustee further submitted, in reliance upon a telephone conversation with a Centrelink Reviewing Officer on 18 January 2022, that the failure to provide "details of rental income" within 13 weeks of the Trustee's appointment" rendered the protected person ineligible to receive the Age Pension. The 13 week "period of grace" expired in early 2018. On the evidence, no rental was then being received, so no "details" of such payments could have been provided.
The Trustee submitted that the payment of rent since 11 October 2019 did not satisfy the eligibility criteria for reinstatement of the Aged Pension. The Trustee submitted that the letter from Centrelink of 23 December 2021 confirmed that assertion. The Tribunal at first instance referred [25] to the events leading up to Centrelink's affirmation of its decision to cancel the mother's Aged Pension in view of the failure to provide information previously requested by it, most relevantly for our purposes being evidence that, by early September 2019, "rent" was being charged for the mother's property, irrespective of whether that was pursuant to a formal lease. That information was not, and could not be provided, as no "rent" was received prior to October 2019. The finding of the Tribunal at first instance [26] that it could not be satisfied that the mother's pension was "cancelled in error" was open to it on the evidence before it.
The Appellant asserted (28) in his 18 May 2022 submissions that the Tribunal's reliance upon what Centrelink officers were asserted to have told the Trustee was erroneous. As is not in doubt, each party relied significantly on what Centrelink officers were asserted to have said. The best evidence of Centrelink's position was that to which the Tribunal referred [25]. With respect to the Appellant, his contentions (29) with respect to what was "known" to Centrelink, if those matters were, does not establish that the findings of the Tribunal were wrong, or not reasonably open to it.
The Tribunal found [27] that it could not be satisfied that "the mother is eligible for an Age pension". The Tribunal reiterated that finding at [30]. The Tribunal also found [58[2]] that the Appellant's mother "does not appear to meet the criterion for the grant of a new Age pension".
The terms of those findings assume decisive significance. In our view, the further evidence upon which the Appellant seeks to rely, at its highest, establishes that his mother may be eligible for the Aged Pension, and that there may be no impediment to making a further application for the pension to Centrelink. In view of the terms of the finding of the Tribunal, and the basis of its decision, and particularly its finding at [58[2]], accepting that the Appellant's mother may be eligible for, and able to obtain the Aged Pension does not establish that the Tribunal's decision involved error on a question of law, or on any other ground not involving a question of law.
In Collins v Urban [2014] NSWCATAP 17, at [84] the Appeal Panel said that, in order to be granted leave to appeal pursuant to s 80(2)(b) of the CAT Act, an appellant must "demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact", or "an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand" or that the Tribunal made a "factual error that was unreasonably arrived at and clearly mistaken".
Nothing to which we have been referred, by reference to the evidence which was before the Tribunal at first instance with respect to the restoration of the Aged pension, or the further evidence upon which the Appellant seeks to rely, establishes any of the matters to which the Appeal Panel referred in Collins. If the Tribunal at first instance had found that no further application for an Aged pension for the Appellant's mother could be made, or that, if it could, that such an application would fail, different issues would arise, but that is not what the Tribunal found.
The second major challenge advanced by the Appellant related to the financial position of his mother if, contrary to his contentions, she was not eligible for and did not receive an Aged pension.
The Appellant disputed the Trustee's calculation of annual rental income (HB 176) of $32,600, and submitted that the gross rental received should not have been reduced by management fees payable to a real estate agent when there was neither a real estate agent involved in managing the Ashfield property, nor any need for one to be involved in circumstances where the Appellant was in possession of the premises and paying rent for them. The Appellant accordingly submitted that the rent should have been considered to be $36,000 per annum gross.
The Appellant further disputed that the Respondent's calculation of certain personal expenses for his mother, particularly the sum of $2,600 per annum assertedly allowed for "air/waterbed" was reasonably included in her expenses. The Trustee's allowance (HB 176) of $2,500 per annum for the mother's "personal expenses" was referable to "medical and personal costs". Whatever its composition, we cannot accept that its inclusion, or quantum were not able to be accepted by the Tribunal at first instance.
The Appellant disputed that any allowance for property expenses, whether rates, repairs or maintenance, should be payable out of the rental income received by his mother as, he asserted, he was in fact paying council rates and water rates. Pages 11 to 14 of AB evidence quarterly payments to Sydney Water with respect to "Ashfield water" from September 2015 to 17 December 2021, and payments to Inner West Council with respect to "Ashfield rates" between 31 August 2016 and 28 February 2020. Accepting that the Appellant paid those sums, although there is no source documentation or other evidence establishing that the Appellant paid those sums, it is apparent that the last payment of Council rates was more than two years ago. The receipts do not include any costs with respect to repairs or maintenance of the property.
The Appellant relied (AB 7) on his statement during the hearing at first instance that "we can get landlord insurance, that's no problem or they can come and inspect the house". We have not been referred to anything which establishes that the cost of household insurance would not fall on the Trustee as part of its duties to the Appellant's mother who is the registered proprietor of the Ashfield property.
The Tribunal's findings [38] that there was no evidence before it "documenting rental payments by the son for the period between 21 March 2017 and 28 September 2019, nor is there any record of payments made by the [Appellant] for his mother's care or to cover the rates and utility costs for the Ashfield property" were open on the evidence before it. If admitted, the further evidence identified above would establish that there was no evidence to support those findings with respect to "rates", or that the finding was contradicted by the further evidence and was "wrong" (Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296). As the Trustee could not have adduced evidence to contradict the evidence sought to be relied upon by the Appellant if he had done so at first instance, we would not reject the further evidence in the appeal on the basis that it was reasonably available at the first instance hearing (Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598, Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1). The issue is then whether the asserted erroneous finding of fact renders the decision of the Tribunal at first instance erroneous.
The Tribunal found [50] that "immediate repairs" to the Ashfield property would cost $15,900, with an estimate of $34,200 in total, a matter which was influential in the reasons for its ultimate decision [60].
The Appellant disputed that there was any pressing or other need to spend significant monies on the Ashfield property and sought to rely upon an email to him from Tommy Ajaka of Bell Property Ashfield of 28 February 2022 setting out a number of options with respect to the rental of the property. The options included "rent out the rooms individually" and suggested repairs or modifications to the property which would be necessary in that regard, without expressing any view as to the likely cost of doing so, or "rent out the property as a whole", again, a number of unquantified items of renovation or modifications being suggested.
The Appellant also sought to rely (AB 10) on an email to him of 7 March 2022 from Tony Andreacchio of Rayne & Horne Ashfield stating: "Other than general cleaning and declutter all looking good".
The Appellant provided no explanation for his failure to obtain this evidence prior to the hearing at first instance. The Appellant did not suggest that the evidence was not then reasonably available. We are not persuaded that these statements from real estate agents render erroneous the findings of the Tribunal to which we have referred. That is particularly so given the absence of any quantification of the cost of any suggested works, or the quantum of any rent which could reasonably be expected if they were undertaken and the property were leased, inferentially through a real estate agent, on either of the two suggested bases. We thus refuse to receive the further evidence of real estate agents.
In his written submissions of 18 May 2022 (50) the Appellant "acknowledged that repairs were being undertaken at the property at the time Archicentre attended, and since then those repairs had been effected". Archicentre was the entity which prepared the report on which the Trustee and the Tribunal at first instance relied.
The further evidence sought to be relied upon by the Respondent (AB) provides no direct evidentiary foundation for the Appellant's contentions with respect to the completion of repairs to the Ashfield property. However, two pages of photographs of the property within AB do not reveal any obvious defects or matters which would appear to require urgent attention. The photographs suggest that, unlike the state of repair at the time of Archicentre's inspection in late 2019, the property has a kitchen which appears to be adequate for that purpose. The photographs suggest that there is a washing machine in the bathroom, as was the case when Archicentre inspected the property. It is difficult to see how, or in what way, there is any immediate or pressing need to change that situation, assuming, which the evidence does not establish, that there is in fact a laundry which could be utilised for that purpose.
The anticipated cost of the gutter repairs, which the Appellant says he has effected, was considered to be $700 to $900. As is readily apparent from Archicentre's report (HB 150-164), the great bulk of the "immediate hazards that require urgent attention" was referrable to the kitchen, which the evidence which the Appellant seeks to rely upon has been rectified. The Appellant's photographs do not show the state of repair of the lawns or driveway which Archicentre considered required rectification. Those items were anticipated to cost approximately $4,000 to be undertaken and were not suggested by Archicentre to be urgent or pressing.
We are not persuaded that the Tribunal at first instance erred in finding [50] that "immediate repairs" to the Ashfield property would cost $15,900 on the evidence before it. The further evidence upon which the Appellant seeks to rely does however establish that such finding was erroneous in that it was without an evidentiary foundation. However, having regard to the figures upon which the Trustee relied, and the Tribunal accepted at [51], that does not establish that the whole of the sum of $7,000 per annum for "property expense (e.g. rates, repairs and maintenance)" relied upon by the Trustee (HB 176) should be excluded from the mother's reasonable expenses.
On the assumption that the Appeal Panel accepted the figures advanced by him, the Appellant submitted that, after allowing for his mother's reasonable total recurring expenses, she would have net rental income available which exceeded the asserted $28,000 "cut off" for Centrelink purposes, thereby rendering her liable for payment of the daily accommodation expense which was calculated, uncontroversially, at $19,100 per annum. The Appellant thus submitted that, to the extent that there could be a shortfall, it would be in the order of $3,600 per annum, not the $10,800 cashflow shortfall asserted by the Respondent (HB 176). The Appellant thus submitted that the Tribunal at first instance had erred by finding that his mother's capital reserves would be exhausted within approximately 2.2 years. As is not in doubt, that finding was material to the decision of the Tribunal at first instance [51].
To the extent that the Appellant asserted, or may have been asserting, that the Tribunal at first instance understated his mother's shares and cash reserves, nothing to which he has referred us establishes that to have been the case. The figures provided by the Trustee (HB 175) upon which the Tribunal relied have not been shown to be unreliable. Moreover, the Appellant's contentions with respect to when his mother's share and cash reserves would be exhausted, a period of 6 years, was consistent with his acceptance of the evidence of the Trustee with respect to the mother's available funds, and expenses, other than with respect to the expenses which he disputed, on which the Tribunal at first instance relied.
We do not accept that, if received in evidence, the further evidence upon which the Appellant seeks to rely would demonstrate, either on a question of law, or on other grounds pursuant to leave, that the Tribunal at first instance erred in its decision by erroneously finding that the Appellant's mother could not meet her reasonable expenses without selling her Ashfield property. Our reasons for so finding can be concisely stated.
If it is accepted that the gross rental with respect to the Ashfield property is $36,000 per annum, and if the $2,500 per annum of expense for "personal expenses (e.g. medical and personal costs)" were excised, the "shortfall" would become not less than $5,000 per annum, after making an allowance for the water rates which the Appellant has been paying. That makes no allowance for any vicissitudes of life for the mother, or any of the longer term repairs suggested by Archicentre, and not contradicted by any evidence to which we have been referred, or the payment of premiums to insure the property which have recently been $1,765.18 per annum (HB 165).
The relationship between the Appellant and the Trustee is clearly "very difficult", as the Tribunal at first instance found [53]. We do not suggest that is the fault of the Appellant or of the Trustee- it is just the reality of the relationship. The Appellant receives, and intends to continue to receive, payments of rent by effectively sub-letting the Ashfield property to third parties. We have not been referred to any documentation evidencing the obligations of those persons to pay rent, maintain the property in good order, or lodge funds to secure their doing either of these things, as would normally be expected pursuant to a residential lease, or sub-lease or an "arms-length" transaction. There is no evidence that this would change if the current arrangements are undisturbed. We have not been referred to anything which was before the Tribunal at first instance, or sought to be relied upon by the Appellant, which demonstrates that the Tribunal erred in finding that an agent's management fee was appropriate in the circumstances revealed by the evidence.
Even if the allowance for "property expenses" were reduced to cover only Council rates, for which the Appellant has no legal liability, and property insurance, with no allowance for repairs, the mother's reasonable annual expenses (approximating $40,000) would exceed her rental income (after deduction of agent's management fees) by approximately $8,000, and exhaust her reserves in approximately 2.5 years. If repairs were needed, or the Appellant's "sub-tenants" were in less than continuous occupation, or not paying their sub-rent, or the mother's "personal expenses" exceeded the nominal $50 per week budgeted for by the Trustee, the mother's savings would be exhausted in less than 2.5 years.
The Appellant submitted that any shortfall arising from the calculations advanced by him could be "carried forward" and ultimately paid by and out of his mother's estate. We have not been referred to any evidence which supports that assertion. The Trustee's record of a conversation with "Josh" from Centrelink (HB 184) does not suggest that Centrelink would be so forbearing with respect to any current or future debt to it.
We are not persuaded that the decision of the Tribunal at first instance was erroneous on any basis asserted by the Appellant. The findings of fact underpinning the decision of the Tribunal at first instance, at [58], have not been shown, either by the evidence before the Tribunal at first instance, or the further evidence upon which the Appellant seeks to rely, to have been wrong, or other than reasonably open to the Tribunal.
To the extent that the Tribunal made findings with respect to the likelihood of repairs to the Ashfield property being required on an "immediate" basis is rendered erroneous by the further evidence upon which the Appellant seeks to rely, in view of the calculations to which we have referred, that does not infect the Tribunal's decision with error on a question of law, or on any other ground. Even if, as we have analysed the figures, no allowance is made for repairs to the Ashfield property in the immediate or foreseeable future, the findings of the Tribunal at first instance upon which its decisions was ultimately based are not adversely impacted by so finding.
Finally, the impact of the further evidence with respect to the state of repair of the property, though inconsistent with some of the findings of the Tribunal at first instance, does not affect the findings on which the decision was ultimately based, as the Reasons of the Tribunal at [58]-[60] confirm. Nothing to which we have been referred in the evidence before the Tribunal at first instance, or the further evidence upon which the Appellant seeks to rely, renders erroneous any of the findings of fact upon which the Tribunal's decision was ultimately made.
The Tribunal was entitled to find [58(v)] that "the mother may be at risk of being held liable for any safety issues that arise" with respect to the unapproved subletting to lodgers of the Ashfield property. The Tribunal has not been shown to have erred in finding [58(vi)] that "even with regular payments, in the absence of the Aged pension, the mother may not have the funds to buy additional products for her care and comfort". Although we do not believe that it has been challenged, the finding [58(vii)] that the Appellant has the "financial resources available to him to find accommodation close to his mother's care facility in order to continue his daily visits or to travel down from his own property to see her as regularly as he is able" has not been shown to have been erroneous. Nor has it been established that the finding of the Tribunal at first instance [58(ix)] that "the payments by the son into his mother's account have at times been irregular, which denies her the certainty of a fixed weekly payment" was erroneous. The Appellant's lease of the premises from himself to himself provides no comfort to the Appellant in that regard, as the Tribunal had earlier found.
In the circumstances recorded above, we are not persuaded that the Appellant establishes appealable error in reliance upon the evidence before the Tribunal at first instance or in reliance upon further evidence, either on a question of law, or any other ground. We will dismiss the appeal, and, as doing so can have no utility, refuse leave to appeal and adduce further evidence.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (10)