GXK v NSW Trustee and Guardian [2025] NSWCATAD 215;

In conducting a review, 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 at [25].

1. In CPE v NSW Trustee and Guardian [2017] NSWCATAD 11, at [26] - [27], the Tribunal considered the basis and approach of the protective jurisdiction which was also considered in P v NSW Trustee and Guardian [2025] NSWSC 579:

26. In exercising this jurisdiction the Tribunal must have regard to the paramount consideration of the welfare and interests of the parents in accordance with Chapter 4 generally and section 39 of the Act.

27. This protective jurisdiction is governed by the central informing idea that the jurisdiction exists for the care of those who are not able to take care of themselves. The exercise of this jurisdiction must be for the benefit, and in the best interests, of the person in need of protection as an individual, not for the benefit of the state or for the convenience of carers: P v NSW Trustee and Guardian [2015] NSWSC 579.

1. Administrative review applications relating to decisions concerning protected persons should be conducted in a way that reflects the guiding principles set out in s 39 of the NSWTG Act, and in particular s 39(a), that the paramount consideration in decision-making is the welfare and interests of the protected person: BND v NSW Trustee & Guardian [2015] NSWCATAP 219, [32].

1. 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.
2. NSWTG have already made a decision, within the exercise of NSWTG's functions as financial manager, to sell the property. This decision is not for the Tribunal to review. The decision for the Tribunal to review is whether the property should be sold to the Applicant for $300,000.00. To determine whether this decision is one which promotes the welfare and interests of the Protected Person, it is relevant to consider the Protected Person's current financial position.
3. 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]: