GTD v NSW Trustee and Guardian & GVZ [2025] NSWCATAD 79

NCAT Administrative and Equal Opportunity|2025-04-03

For the reasons outlined above, the Tribunal is not satisfied that GTD's proposal to relocate the Protected Person to recover the RAD and pay part of the Protected Person's current debts is an appropriate or reasonable option. The parties have not presented to the Tribunal any other reasonable options to address the Protected Person's current financial position.
The other options which NSWTG proposed to GTD during 2024, after obtaining financial planning advice in December 2023, such as GTD paying the Protected Person's arrears by a certain due date, making an ongoing weekly contribution (which would increase after May 2025) and entering a lease agreement for the property, were not accepted by GTD.
The Tribunal is of the view that it is not an option to take no action and let the status quo continue given the concerning and worsening state of the Protected Person's current financial position which is compounded by the unacceptable risk of losing the property and the Protected Person's only source of income.
The Tribunal is therefore satisfied that the only viable option in the circumstances is the sale of the property.

Section 39(a) - Paramount consideration of the welfare and interests of the Protected Person

The principle in s 39(a) of the NSWTG Act instructs that the Tribunal in this review, should give paramount consideration to the welfare and interests of the Protected Person.
NSWTG hold minimal funds for the Protected Person and do not have funds to meet the Protected Person's ongoing needs. NSWTG submitted that NSWTG has a duty to the Protected Person to meet the Protected Person's ongoing liabilities and not allow the estate NSWTG are entrusted to manage for the Protected Person to go into deficit. NSWTG propose that if the property is sold in accordance with its policy, the proceeds of the sale would go into a second trust account from which the Protected Person's ongoing expenses can be met.
GTD submitted that NSWTG, by their conduct, are demonstrating an intention not to put the Protected Person's interests first. GTD, however, did not provide any reliable evidence to support this submission.
The Tribunal is satisfied that it is not in the Protected Person's interests to allow Protected Person's estate to continue to go into further deficit, and to place the Protected Person at unacceptable risk of losing the Protected Person's only source of income, their current accommodation and potentially the property if it was kept. There are no other viable options in evidence before the Tribunal that would adequately meet the Protected Person's ongoing expenses. The Tribunal is therefore of the view that the only viable option that is consistent with the paramount consideration of the Protected Person's welfare and interests is the sale of the property.
The Tribunal must consider the Protected Person's welfare and interests over and above the welfare and interests of the other parties, including GTD and GVZ. Retaining the property may well be in the interests of GTD, but it is not in the Protected Person's welfare or interests for the property to be retained.
The Tribunal accepts that the sale of the property may adversely affect GTD's interests as she will likely have to relocate from the property after the sale. With the sale of the property, NSWTG proposes that the RAD will be returned to GTD, which will assist GTD's own financial situation. GTD's interests and financial situation however, are not determinative in this matter as it is the welfare and interests of the Protected Person that is the paramount consideration of the Tribunal.

The principle in s 39(d) of the NSWTG Act instructs that the Tribunal in this review, should take into consideration the views of the Protected Person.
The Protected Person's will, dated 8 October 2020, was included in NSWTG's material and provides that 'any real estate' owned by the Protected Person as at the date of death, together with all personal effects and jewellery, be given to GTD. At the date of the execution of the will, the Protected Person was still living on the property.
It is evident to the Tribunal that since receiving financial planning advice in December 2023 to assist with decision making to manage the Protected Person's estate, NSWTG has considered and proposed a range of options that were mindful of the Protected Person's apparent express wish not to sell the property.
NSWTG conceded during the hearing that NSWTG had not had any direct contact with the Protected Person to obtain the Protected Person's current wishes about the sale of the property. NSWTG stated that the Protected Person received a copy of the decision under review. NSWTG accepts that the Protected Person's wishes were expressed at the hearing before the Guardianship Division of the Tribunal in June 2024, that the property not be sold.
The Tribunal notes the comments made by the Guardianship Division of the Tribunal in the decision of 26 June 2024, that in relation to the issue of the sale of the property, while the Protected Person may well be strongly opposed to the sale of the property, the Protected Person required care in a RACF and it was simply not possible for that to continue while also retaining the property.
There is dispute between GTD and GVZ as to what the Protected Person's current wishes are in relation to whether the property should be sold. There is also a dispute between GTD and GVZ about the Protected Person's capacity.
GTD submitted that the Protected Person has been 'unequivocal' about not wanting to sell the property because 'it is our home' and the home for the Protected Person's dog.
GVZ submitted that in terms of the Protected Person's wishes, the Protected Person was influenced by GTD. GVZ submitted that the Protected Person had told him during a phone call on 7 November 2022 before the Protected Person was admitted to the RACF that the Protected Person wanted to sell the property. GVZ included transcripts he had prepared of recorded conversations with the Protected Person (prior to June 2024 hearing before the Guardianship Division of the Tribunal) where there was discussion about a fair approach of a 50/50 split of the Protected Person's estate between GTD and GVZ. GVZ submitted that the Protected Person does not remember or miss the dog. GVZ also submitted that the property was still the Protected Person's property - not GTD's property.
The Protected Person was not directly involved in these proceedings and the Tribunal is reliant on what evidence the parties have filed in relation to the Protected Person's wishes, without the benefit of cross-examination. Given the level of acrimony between GTD and GVZ, the Tribunal refrains, in the absence of independent evidence of the Protected Person's current wishes and capacity to express those wishes, from accepting submissions from either GTD or GVZ about the Protected Person's current wishes. The Tribunal is not able to determine whether or not the Protected Person currently wishes for the property to be sold or not.
The Tribunal does however accept that the Protected Person did make it clear during the hearing before the Guardianship Division of the Tribunal in June 2024, that the Protected Person did not want the property to be sold, and the Tribunal accepts that the Protected Person may still hold that view. While the Tribunal takes this into account and acknowledges the Protected Person's views as weighing against affirming the decision under review, the paramount consideration is the Protected Person's welfare and interests in the Tribunal's consideration of what is the correct and preferable decision.

Section 39(e) - Recognition of the importance of preserving the family relationships and the cultural and linguistic environments of Protected Persons

The principle in s 39(e) of the NSWTG Act requires that the Tribunal recognises the importance of preserving the Protected Person's family relationships as well as the Protected Person's cultural and linguistic environments.
While the relationship between GTD and GVZ involves conflict and they are in dispute between themselves about what is in the Protected Person's best interests, it appears from the submissions made by both GTD and GVZ that they each have ongoing contact and connection with the Protected Person, and that for GVZ in particular, this has improved in the last few years in terms of his ability to access the Protected Person under the current guardianship order.
The Tribunal is satisfied that the sale of the property, which will assist with the Protected Person's current and future needs being met and promotes the Protected Person's interests and welfare, should not adversely affect the Protected Person's ongoing contact and connection GTD and GVZ.

Section 39(g) - Protection of Protected Persons from neglect, abuse and exploitation

The principle in s 39(g) of the NSWTG Act provides that the Protected Person should be protected from neglect, abuse and exploitation and this principle should be observed in the function that the Tribunal has of conducting this review.
The Tribunal acknowledges that GVZ filed a substantial amount of material about his concerns that GTD is perpetrating financial and psychological abuse against the Protected Person and that this amounts to elder abuse as defined in the Elder Abuse Tool Kit.
GVZ submitted that GTD had caused the Protected Person to sign power of attorney and enduring guardian documents without GVZ's knowledge, had caused the Protected Person to see GTD's solicitor and change the Protected Person's will so that GTD is the sole beneficiary, that GTD had isolated the Protected Person from having contact with GVZ and had made the Protected Person believe that GVZ had abandoned the Protected Person. GVZ raised concerns about how GTD had mismanaged the Protected Person's funds when GTD had access to them, including running the Protected Person's funds down after GTD become attorney in 2020 with GTD's own personal expenses. GVZ provided copies of the Protected Person's bank statements between 2020 and 2023 to support this submission. GVZ submitted that he has irrefutable evidence that GTD has abused the Protected Person, including transcripts of recorded phone conversations and copies of text messages. GVZ submitted that the only reason that GTD wants to move the Protected Person is to try and get her RAD back.
GTD stated in her material that she has not replied to GVZ's material (in relation to the allegations of GTD abusing the Protected Person) as it is 'false, unsupported and irrelevant.'
During the hearing the Tribunal noted that the evidence filed by GVZ in relation to his concerns about GTD, which had also been put before the Guardianship Division of the Tribunal for the June 2024 hearing and considered in the making of the current guardianship and financial management orders, are not of direct relevance to the Tribunal's role in reviewing the decision that NSWTG had made in the management of the Protected Person's estate. It is not the Tribunal's task in conducting this review to determine whether GTD has perpetrated elder abuse against the Protected Person.
The Tribunal is, however, required to ensure that the decision that the Tribunal makes in respect of the management of the Protected Person's estate, is one which will ensure that the Protected Person is not neglected, abused and exploited. In this regard, the Tribunal is satisfied that the sale of the property will avoid the Protected Person's estate from going into further deficit and avoid the unacceptable risk that the Protected Person otherwise faces with the potential loss of income, residential aged care accommodation and property (if the property was kept).

The Tribunal has taken into account the views of the Protected Person about the sale of the property which weigh against affirming the decision under review. The Tribunal is satisfied however, that the sale of the property is consistent with the paramount consideration of the Protected Person's welfare and interests, will not impact adversely on the Protected Person's relationships with GTD and GVZ which are important to the Protected Person, and will go towards ensuring that there is protection of the Protected Person from neglect, abuse and exploitation.

The Tribunal is satisfied that the sale of the property is the only reasonable option from the evidence before the Tribunal that addresses the Protected Person's clear and pressing need to be able to access funds to pay for the Protected Person's past and future expenses. If the property is not sold, the Protected Person faces the unacceptable risk of the estate going into further deficit, as well as loss of accommodation, income and the property.
For the reasons set out above, including the application of the s 39 principles, the Tribunal is of the view that the correct and preferable decision, which gives paramount consideration to the Protected Person's welfare and interests, is to affirm the decision made by NSWTG on 17 October 2024.
The Tribunal notes that in terms of the Respondent's decision of 17 October 2024, as 14 November 2024 has passed, the preconditions to avoiding the sale of the property, have not been met. That is GTD has not (as of 14 November 2024) paid all current arrears of $22,877.35 for the Protected Person, a weekly rent contribution of $1,000, and $200 towards the Protected Person's ongoing needs (which would need to increase to $520 per week from May 2025). As this did not happen, there was also no three-monthly review of this arrangement.
Further, NSWTG has not been able to establish a lease agreement for the property with the Protected Person as the sole tenant on the property.
The effect of the Tribunal affirming the decision under review, made by the Respondent on 17 October 2024, is that the rest of the decision is now to take effect, specifically:

(1) The Protected Person's property be sold

(2) The proceeds of the sale of the property be placed in a second trust account from which the Protected Person's ongoing expenses can be met, and

(3) That the prior paid RAD be returned to GTD from the proceeds of the sale of the property.

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.

Trustee and Guardian Act 2009

Decisions Review Act 1997

Administrative Tribunal Act 2013

The Tribunal is required to base its findings of fact on logically probative material: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 at [62] and [68]; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]- [8], [15]-[17]. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
The standard of proof applicable to this review by the Tribunal is the balance of probabilities. There is no burden or onus of proof on either party: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34]. The standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 (NSW) do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89]-[91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10]-[12]. However, these standards provide guidance for the Tribunal's exercise of jurisdiction.
In conducting a review, the Tribunal stands in the shoes of the administrator and makes the correct and preferable decision having regard to all relevant material. The Tribunal may have regard to material that was relevant at the time of the decision as well as any further material that is relevant at the time of the hearing. The issue for determination is what is the correct and preferable decision at the time of the determination, irrespective of whether it was or was not the correct and preferable decision at the time it was originally taken: YG & GG v Minister for Community Services [2002] NSWCA 247, [25].
In terms of the Tribunal's task of reaching the correct and preferable decision, this involves reaching a decision that is correct on the law and evidence. If there is more than one possible decision, the decision must be the preferable one having regard to the limits imposed by the legislation under which the decision is made and the facts of the case: Re Zheng and Minister for Immigration and Citizenship [2011] AATA 304; (2011) 121 ALD 372, [24].

In NSW Trustee and Guardian v FYV [2024] NSWCATAP 243 at [93] the Appeal Panel decided to apply the principles in s 39 of the NSWTG Act, in determining whether a decision to sell the property of a protected person was the correct and preferable decision, which instruct that the welfare and interests of the protected person be given paramount consideration and the protected person's views be taken into consideration.

In BLB v NSW Trustee and Guardian [2015] NSWCATAD 83, which involved an administrative review by the Tribunal of a decision made by NSWTG to sell a protected person's property, the Tribunal stated at [30]:

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