HDY v NSW Trustee and Guardian [2026] NSWCATAD 87 | Case summary

NCAT Administrative and Equal Opportunity|2026-03-27

For the reasons set out above, including the application of the s 39 principles in the NSWTG Act, I am 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 30 May 2025 to lease the property at market rate.

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.

Decisions Review Act 1997

Trustee and Guardian Act 2009

Administrative Tribunal Act 2013

Section 62(1) of the NSW Trustee and Guardian Act 2009 (NSW) (NSWTG Act) provides that an affected person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of a decision of NSWTG that is made in connection with the exercise of NSWTG's functions under Div 1 of pt 4.5 of the NSWTG Act or is a class of decisions prescribed by the regulations. The decision under review falls under these functions.
An "affected person" is defined in s 62(2) of the NSWTG Act and includes a person whose interests are, in the opinion of the Tribunal, adversely affected by the decision. It is not disputed that HDY is a person who is adversely affected by the decision under review, which means that she can apply for an administrative review of the decision.
The task of the Tribunal is to decide what the correct and preferable decision is, having regard to any relevant factual material and any applicable law, pursuant to s 63 of the ADR Act.
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].
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 at [32].
Section 39 of the NSWTG Act provides that it is the duty of everyone exercising functions under Ch 4 of the NSWTG Act with respect to protected persons, which includes the Tribunal, to observe the following principles:

This "paramountcy principle" in s 39(a) of the NSWTG Act applies to the protective jurisdiction when the Tribunal exercises administrative review jurisdiction under s 62 of the NSWTG Act. Exercise of the jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual, not for the benefit of the state, or others, or for the convenience of carers: P v NSW Trustee and Guardian [2015] NSWSC 579 at [52].

To determine whether the decision under review is one which promotes the welfare and interests of the Protected Person, it is relevant to consider the Protected Person's current financial position.
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]:

HDY v NSW Trustee and Guardian [2026] NSWCATAD 87;

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