GDO v NSW Trustee and Guardian

NCAT Appeal Panel|2024-10-24|Before: Blake AM

Overview

This is an internal appeal from the decision of the Administrative and Equal Opportunity Division of the Tribunal constituted by Senior Member R Bailey made on 2 July 2024 in which she affirmed the decision of the First Respondent, NSW Trustee and Guardian (NSWTG), dated 18 October 2023 to sell a particular property of a person who is the subject of a financial management order (the Protected Person or the Reviewable Decision according to the context): GDO v NSW Trustee and Guardian [2024] NSWCATAD 187 (the 2 July 2024 Decision).
We have decided to dismiss the appeal and refuse leave to appeal.

The background

The Protected Person is an elderly man living with Parkinson's plus syndrome and dementia in a residential aged care facility. He has been married to the Second Respondent, GKV, since 1987. They do not have any children. They own adjoining properties in Dundas in New South Wales, and an additional 'granny flat' annexed to one of those properties (which in the 2 July 2024 Decision were referred to as "number 41", "number 39A" and "number 39"). GKV lives in number 39.
The Appellant, GDO, and the Third Respondent, GKZ, are the brother and sister respectively of the Protected Person.
This decision assumes familiarity with other aspects of the background which are set out in the 2 July 2024 Decision at [1]-[13].

The Reviewable Decision

In the Reviewable Decision, NSWTG decided to sell number 41 to fund the residential accommodation deposit required for the residential aged care facility for the Protected Person (RAD) and to provide cashflow for his future needs.
On 11 December 2023, NSWTG on an internal review requested by GDO affirmed the Reviewable Decision.

The proceedings in the Administrative and Equal Opportunity Division

On 15 January 2024, GDO as the Applicant commenced proceedings 2024/00016747 against NSWTG as the Respondent in the Administrative and Equal Opportunity Division of the Tribunal for an administrative review of the Reviewable Decision by lodging an Administrative review application form.
On 27 February 2024, the Tribunal made procedural orders including joining GKV and GKZ as Respondents.
On 2 July 2024, the Senior Member made the 2 July 2024 Decision comprising: 1. the following orders (the 2 July 2024 orders): "(1) The decision of the NSW Trustee and Guardian, dated 18 October 2023, to sell the property of the protected person is affirmed. (2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned or otherwise involved in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013." 1. reasons for the 2 July 2024 orders in which she: 1. set out details of the background, the Protected Person, orders of the Guardianship Division in relation to the Protected Person, the adjournment of the hearing, the resumed hearing, the legal framework, the documents and exhibits, and the agreed facts ([1]-[36]); 2. summarised the Reviewable Decision ([37]-[43]); 3. analysed GDO's submissions as follows: 1. she summarised the submissions ([44]-[50]); 2. as to his assertion that the Protected Person and GKV were separated, she found that the "separation" appeared to be a matter of practicality, rather than a breakdown of a marital relationship and that it was not analogous to an intention to separate from the marriage ([51]-[60]); 3. she preferred NSWTG's submissions, which make it clear that the purpose of the proposed sale of the property is to reduce the Protected Person's liabilities and ensure that he has sufficient cash flow to meet his needs. She rejected GDO's submissions that NSWTG is attempting to force a property settlement between the Protected Person and GKV, and is acting beyond its authority ([61]-[62]); 4. she was not satisfied that the Reviewable Decision is intended to benefit GKV. She rejected GDO's submission that the Reviewable Decision will disadvantage the Protected Person and unfairly advantage GKV ([63]-[75]); 5. she rejected GDO's submission that the Reviewable Decision is contrary to the Protected Person's wish and intention ([76]-[87]); 6. she found that the Protected Person has total assets of approximately $926,000.00 and liabilities, in the form of a CBA mortgage over number 41, in the sum of $328,299.00, in addition to his obligation to pay the RAD of $388,000.00. He continues to be responsible for his share of ongoing property expenses for numbers 39, 39A and 41 including council rates and insurance. He can no longer afford the mortgage repayments. Because his and GKV's financial position is such that they cannot afford to meet their ongoing mortgage repayments, even if the GDO and the Protected Person's family do not consider it is an optimal time to sell, the bank has already indicated its intention to sell the property and has agreed to defer such sale, only pending the outcome of this hearing. She was satisfied that the property must be sold to fund the Protected Person's needs ([88]-[103]); 1. decided that the correct and preferable decision was to sell number 41 rather than, as submitted by GDO, to sell number 39 (and presumably number 39A) and number 41. She preferred NSWTG's evidence that the Protected Person's financial situation is such that he cannot pay for his liabilities and lifestyle ([104]-[110]); 2. set out the 2 July 2024 orders ([111]).

The history of the appeal

On 10 July 2024, GDO as the Appellant commenced proceedings 2024/00253726 against NSWTG as the Respondent by lodging a Notice of Appeal.
On 24 July 2024, the Tribunal made an order naming GKV and GKZ as Respondents to the appeal.
It is unnecessary to otherwise summarise the history of the appeal.

The hearing of the appeal

On 24 October 2024, the hearing of the appeal took place. GDO represented himself. Ms R Stormont, a Solicitor, represented NSWTG. Ms S Lloyd, a Solicitor, represented GKV. There was no appearance by GKZ.
GDO relied on the following documents in support of the appeal: 1. the bundle of documents lodged on 21 October 2024 comprising a covering letter dated 10 October 2024, Submissions dated 10 October 2024 and 24 attachments (the 10 October 2024 GDO documents); 2. the bundle of documents lodged on 21 October 2024 comprising Submissions dated 18 October 2024 and eight attachments (the 18 October 2024 GDO documents) in which GDO relevantly states: "1.1. I am not a solicitor or Barrister; therefore I cannot identify precisely where NSWTAG, or Senior Member R Bailey has made errors in law or, errors in facts are made by them. Even in an unlikely event if I can identify some of them, I do not know how to disseminate and tell you in a way you will understand."
GDO sought to rely on his email sent to the Appeal Registry on 23 October 2024 at 11.08 AM. We gave oral reasons for our refusal, and marked the email MFI1.
NSWTG relied on the bundle of documents lodged on 10 October 2024 in opposition to the appeal (the 10 October 2024 NSWTG documents) which relevantly included two pages for a contract for the sale of number 41 dated 26 September 2024.
Each of GDO, Ms Stormont and Ms Lloyd made oral submissions.
At the conclusion of the hearing, we reserved our decision.

The scope and nature of internal appeals

An appeal does not provide a losing party with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either a material error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right, or some other material error for which permission (that is "leave") to appeal should be granted to bring the appeal: s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
Following the reasoning in a body of decisions of the Supreme Court and Court of Appeal, the Appeal Panel has recently confirmed that a question of law in the context of s 80(2)(b) should be interpreted similarly to "a question of law alone" or a "pure question of law": Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25]-[40]; Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240 (Narraport) at [34].
The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17: Unique at [42]-[43]; Narraport at [36]. They are the same principles applied by the courts. It is sufficient as a summary to refer to Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], where Gleeson JA (with Macfarlan JA at [1] and Payne JA at [67] agreeing) said: "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong." (citations omitted)
Further, as Basten JA said (with White JA at [18] agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 at [9], cited with approval in Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21 at [9] (Basten and Meagher JJA): ... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice.
An appeal will be dismissed where it lacks utility such as in circumstances where orders the subject of the appeal have been carried out: Ugur v Bridge Housing Limited [2024] NSWCATAP 203 (Ugur) at [26]-[29].
The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to for the appeal to be allowed or dismissed: s 81(1)(a) of the NCAT Act.
In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13], the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.

Consideration

Having regard to the principles in Cominos at [13], we have reviewed the 2 July 2024 Decision, the Notice of Appeal, the 10 October 2024 GDO documents and the 18 October 2024 GDO documents to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.
Having regard to the principles in Unique at [25]-[40] and Narraport at [34], we have been unable to discern any grounds which raise a question of law.
Having regard to the principles in Unique at [42]-[43] and Narraport at [36], we are not satisfied that GDO has raised any ground on which leave to appeal should be granted. While GDO disputes the amount of the Protected Person's assets and liabilities, he did not establish that it was unnecessary to sell number 41 to fund the Protected Person's needs.
Further, in view of the entry into an enforceable contract for the sale of the number 41, having regard to the principles in Ugur at [26]-[29], the appeal lacks utility.
GDO's main submission on the appeal was that the whole rather than 50% of the net proceeds of the sale of number 41 should be applied to the needs of the Protected Person. However, as the Reviewable Decision did not deal with the application of the net proceeds of the sale of number 41, this submission was irrelevant to the outcome of the appeal.
For these reasons, the appeal should be dismissed and leave to appeal should be refused.
As the Tribunal in the proceedings in the Administrative and Equal Opportunity Division made non-publication orders in respects of persons other than NSWTG, we have decided to make a non-publication order in the same terms pursuant to s 64(1)(a) of the NCAT Act.

Orders

We make the following orders: 1. The appeal is dismissed. 2. Leave to appeal is refused. 3. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned or otherwise involved in these proceedings is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

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: 18 December 2024

At a glance

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Judgment (10 paragraphs)

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