NZQ [2017] NSWCATGD 47

NZQ [2017] NSWCATGD 47 - NSWCATGD 2017 case summary — Zoe

[6]

Background

Mrs NZQ is 86 years old and resides at an aged care facility in Inner West Sydney, NSW. She is a widow. Her remaining children are Ms GAD and Ms FYQ. She also had a son, Mr BXQ, who is deceased.
On 16 June 2008, Mrs NZQ made an enduring power of attorney appointing Mr BXQ, Ms FYQ and Ms GAD jointly and severally as her attorneys.
In 2009, Mrs NZQ revoked the appointment of Ms GAD as an attorney and with the death of Mr BXQ in 2014, the only remaining attorney is Ms FYQ.
On 17 March 2015, the Tribunal received an application from Ms GAD seeking a review of the enduring power of attorney.
On 1 July 2015, the Tribunal decided to make no order under the Powers of Attorney Act and decided to treat the application as an application for a financial management order and made a financial management order committing Mrs NZQ's affairs to the management of the NSW Trustee and Guardian.
Ms FYQ appealed against the orders of the Tribunal subjecting Mrs NZQ's estate to management and committing her affairs to management by the NSW Trustee and Guardian.
On 14 December 2016, the Appeal Panel of the Civil and Administrative Tribunal upheld the appeal and ordered that: The following orders made by the Tribunal on 1 July 2015 be set aside but not until the time that the Guardian Division re-determines Ms GAD's application to review the enduring power of attorney made on 16 June 2008: 1. The estate of Mrs NZQ is subject to management under the NSW Trustee and Guardian Act 2009 (NSW); 2. The management of the estate of Mrs NZQ is committed to the NSW Trustee and Guardian.
The Appeal Panel also set aside the orders of the Tribunal relating to the decisions to conduct the review, not to make any orders under the Powers of Attorney Act and to treat the application as an application for a financial management order.
The Appeal Panel remitted the application by Ms GAD for determination by the Guardianship Division of the Civil and Administrative Tribunal of NSW.
At a Directions hearing on 19 January 2017 the Tribunal: 1. Ordered that Mrs NZQ be separately represented; 2. Granted leave for Mr Justin Restuccia, a solicitor with Pelosi & Associates, to legally represent Ms GAD; 3. Granted leave for Mr Paul Glissan of Counsel to legally represent Ms FYQ; 4. Directed that all documents filed in respect of the hearing held on 24 June 2015 (matter number 2016/11640) be brought forward to the current hearing of the application. 5. Made directions regarding the filing and serving of documents.
Mr David Burwood of Counsel appeared as Mrs NZQ's separate representative.
The Tribunal first convened on 3 March 2017 to hear the matter remitted by the Appeal Panel but was unable to complete the matter in the time available and adjourned the hearing on a part-heard basis to 6 March 2017.
On 6 March 2017, the Tribunal was unable to complete the matter in the time available and adjourned the hearing on a part-heard basis to 10 April 2017.
On 14 March 2017, the Tribunal was advised that Ms FYQ had terminated Mr Glissan's retainer to act for her in the matter.
On 10 April 2017, the matter could not proceed due to the absence of a Tribunal member and the hearing was adjourned on a part-heard basis to 19 May 2017.
On 19 May 2017, the hearing of the matter was concluded and the Tribunal reserved its decision.
On 20 June 2017, the Tribunal reached its decision in respect of the application.

[9]

What did the Tribunal have to consider?

The Tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney, or not to carry out such a review (Powers of Attorney Act, s 36(1)). As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act (s 36(2)).
When the Tribunal first convened to consider the remitted matter, Mr Restuccia on behalf of Ms GAD indicated that the applicant was seeking a review of the operation and effect of the power of attorney, not its making. Accordingly, the Tribunal proceeded on the basis of an application to review the operation and effect of the power of attorney.
The Tribunal may make a number of orders relating to the operation and effect of a power of attorney if it is satisfied: 1. that it would be in the best interests of Mrs NZQ to make the order; 2. that it would better reflect the wishes of Mrs NZQ to make the order.
These orders include: 1. An order varying a term of, or a power conferred by, the power of attorney; 2. An order removing a person from office as attorney; 3. An order appointing a substitute attorney to replace an attorney who has been removed from office or who otherwise vacates the office; 4. An order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of power of attorney and appointing a substitute attorney to replace the attorney who vacated office 5. An order: 1. directing the attorney to furnish accounts to the Tribunal or someone nominated by the Tribunal; 2. directing the attorney to lodge a copy of all records and accounts of dealings and transactions made under the power; 3. requiring that the records and accounts be audited and that a copy of the report of the auditor be furnished to the Tribunal; 4. directing the attorney to submit a plan of financial management for approval. 1. An order revoking all or part of the power of attorney; 2. Such other orders as the Tribunal thinks fit.
If on a review of the enduring power of attorney, the Tribunal decides not to make an order under section 36, it may, if it considers it appropriate in all of the circumstances to do so, decide to treat the application for review as an application for a financial management order under pt 3A of the Guardianship Act 1987 (NSW).

[13]

The revocation of the Ms GAD's appointment as an attorney

There was no application before the Tribunal seeking a review of the revocation of the power of attorney. However as the application was made by the person whose appointment was revoked and alleges wrongdoings by the remaining attorney, the Tribunal considered it relevant to have regard to the circumstances of the revocation.
In a letter to the Tribunal dated 17 June 2015, Dr Z states that: 1. On 21 September 2005, Mrs NZQ scored 24/30 on the Mini Mental State Examination (MMSE) and was assessed as having Alzheimer's dementia. 2. By January 2009, she was obviously more cognitively impaired and was accusing people of stealing things that she had mislaid.
In a statement dated 17 February 2017, Ms FYQ describes the events leading to revocation as follows: 1. Mrs NZQ told Ms FYQ that Ms GAD had harassed her and told her that Mrs NZQ had given money to Ms FYQ and Mr BXQ and that she was entitled to receive an amount equal to what they had received. Ms GAD took Mrs NZQ to a bank where she signed a blank withdrawal form and Ms GAD withdrew $50,000. 2. Ms FYQ then asked Mrs NZQ if she still wanted Ms GAD "to have power over" her affairs and Mrs NZQ said she did not. Ms FYQ then "wrote the revocation clause" on the power of attorney and Mrs NZQ signed it. 3. Ms FYQ said that she arranged for the revocation of Ms GAD's appointment as attorney so as to protect Mrs NZQ's funds from Ms GAD.
In relation to the circumstances of the revocation of her power or attorney, Ms GAD submitted, in effect: 1. She noted anomalies in Mrs NZQ's bank accounts and drew them to the attention of Mrs NZQ. 2. Mrs NZQ gifted her $50,000 upon realising that others in the family had been taking money from her account because she was of the view that Ms GAD should have what her siblings had taken.
In oral testimony and submissions, Ms FYQ made statements to the following effect: 1. Allegations made by Ms GAD that Ms FYQ and Mr BXQ were taking money from Mrs NZQ's account could be explained by funds taken out by the late-Mr BXQ who was living with Mrs NZQ and was caring for her and had no independent source of income. She said that as an attorney she knew about and accepted those withdrawals. 2. When assisting Mrs NZQ to revoke the appointment of Ms GAD, she had not considered suggesting that Mrs NZQ seek legal advice because Ms GAD had not exercised the appointment and had left the country. 3. Her role in respect of the revocation was to advise Mrs NZQ about alternative reactions to the dishonesty of an attorney, (Ms GAD), and Mrs NZQ took up the option of revoking the appointment of Ms GAD.
When asked by the Tribunal in effect, whether, taking into account Mrs NZQ's cognitive impairment as diagnosed by 2009, she would have been able to make a decision about her affairs, Ms FYQ said that Mrs NZQ's memory deficit made her reliant on others to provide her with the correct information, with which she would have been able to make a decision.
The Tribunal is of the view that the circumstances of the revocation of the power of attorney are of concern taking into account that: 1. Ms FYQ facilitated the revocation without advising or assisting Mrs NZQ to obtain independent legal advice, and the revocation resulted in Ms FYQ being the only attorney when the initial appointment was for three attorneys. 2. The facts around the matters alleged in support of the revocation were disputed and commenced in circumstances where Ms GAD had noted some irregularities in Mrs NZQ's accounts. Ms FYQ agrees that there were, in fact, irregularities resulting from Mr BXQ's access to the accounts. However, Mr BXQ's appointment was not revoked. 3. Mrs NZQ had been diagnosed with dementia by the time she revoked the appointment.

[14]

Ms FYQ's occupation of Ms FYQ's home

Mrs NZQ owns a house at South-western Sydney (the Southwest Sydney property). She resided in the house prior to her entry to the aged care facility on 22 August 2014 and the late-Mr BXQ also generally resided with her as her carer.
After Mrs NZQ vacated the Southwest Sydney property, the following exchange of views took place: 1. In an email dated 5 September 2014 to Ms GAD, Ms FYQ states that the Southwest Sydney property would need to be let. 2. On 27 October 2014, Ms GAD wrote to Ms FYQ saying that she believed the house should be let and if Ms FYQ were to live in the house she should pay rent of $520 per week.
In November 2014, Ms FYQ moved into the Southwest Sydney property.
In the November/December letter, Ms FYQ: 1. notes that she and Ms GAD had agreed that Mrs NZQ's house should be let and states that she set about disposing of the contents of the house to make it rentable; 2. states that she has made enquiries with "the tax department and Centrelink" and found that there would be "an impact on mum's pension, whichever way we proceeded" and therefore she stopped making improvements to the house.
In an email dated 22 January 2015, Pelosi & Associates on behalf of Ms GAD, request that Ms FYQ pay rent or an occupation fee in respect of her occupancy of the Southwest Sydney property. In an emailed reply, Ms FYQ states that she is "not going to discuss the matter any further until ([Ms GAD]) explains where her hostility is coming from".
In a letter to Ms FYQ dated 11 February 2015, Pelosi & Associates note that Ms FYQ had resided in the home of Mrs NZQ and on behalf of Ms GAD request that she pay $520 per week rent from the date of occupancy net of essential expenses that were paid from Ms FYQ's own funds. In reply to that letter, in an email dated 16 February 2015, Ms FYQ asks the basis on which she is being asked to pay rent and notes that in the previous year Ms GAD resided in the house without paying rent and has lived in the unit without paying rent.
In an email dated 24 February 2015 to Ms FYQ, on behalf of Ms GAD, Pelosi & Associates state that when Ms GAD resided rent free in the Southwest Sydney property, Mrs NZQ also lived there and Ms GAD was able to provide her with care, thus providing respite to Mr BXQ.
An Exclusive Management Agreement with a real estate agent dated 22 June 2015 notes that the premises are to be let "when property is suitable for letting".
In a witness statement dated 22 June 2015 Ms FYQ states, in effect, that : 1. The property was not in a lettable condition. She would move out of the house when it was lettable and in the meantime would continue to reside there giving access to trades people and supervising, inspecting and paying for their work. 2. She moved into the Southwest Sydney property for the following reasons: 1. Living in South-western Sydney facilitated her frequent visits to her mother at the aged care facility. 2. Whilst living in the house she was able to have repairs, maintenance and renovations carried out. 3. By storing the belongings of her late-brother at the Southwest Sydney property she was able to save the estate costs. 4. She was able to save the cost of storage of her mother's property by living in the house and looking after its contents. 1. Residing in the Southwest Sydney property results in "personal inconveniences" constituted by: 1. an outside laundry with no clothes drier; 2. a leaking garage and carport roof requiring her car to be covered with a tarpaulin when it rains; 3. dampness in the house and growth of mould on furniture, shoes and clothes; 4. intrusions and disturbances to her privacy whilst the repairs, maintenance and renovations were carried out and time and effort in supervising contractors and trades people.
In a letter dated 5 October 2015 addressed to Melinda Wilkes at the NSW Trustee and Guardian, Ms FYQ states that she had spoken to a retirement consultant who advised that rental obtained on the home of person in an aged care facility would be counted in that person's pension assets test, but an exemption applied if the rental income was used to make a periodic payment of an accommodation bond. There was a Bill currently before Parliament that would have the effect that the exemption would cease in January 2016.
In an undated letter received by the Tribunal on 9 February 2017, a representative of a real estate company indicates that in June 2015, she was required to provide a market opinion for rental of the property and over August/September 2015, she attended the property and noticed that work was being undertaken to render it "safe and suitable for renting" and by October 2015, it was suitable for letting at $500 per week. After some matters resulting from management of the property being taken over by the NSW Trustee and Guardian, the property was let in December 2015 for $520 per week.
As noted above at [45(1)], in September 2014, Ms FYQ had said that she thought Mrs NZQ's house should be let. In a witness statement dated 30 March 2017, she states in effect that she was not aware that the house was not lettable until after she started living there and realised the extent of the mould and damp problem.
In oral evidence, Ms FYQ said that she did not supervise workers at all times because she resumed work and was working during the day and was not at the house at that time to supervise work. She also said words to the effect of "where would I go? I had no leave left and my previous family home had been sold". She denied that she was receiving rent for her own home prior to its sale whilst she was residing in the Southwest Sydney property.
During the hearing Ms FYQ was asked, in effect, if, as her mother's attorney, she should have turned to her mind to whether it would have been appropriate to pay rent whilst living in the Southwest Sydney property. She said, in effect, that at that time, the fact that she was her mother's attorney was not at the forefront of her mind and she moved into the house and arranged the renovations out of love for her mother and fearing that her mother did not have long to live. She said, however, that she and Ms GAD were considering what rent might be payable at the time that Ms GAD made the application to the Tribunal. She said the amount she had in mind was "a couple of hundred dollars".
At the hearing on 3 March 2017, Ms GAD expressed the view that the property was not derelict though she agreed that there was some rising damp in the corridors and the bedrooms were in their original condition. She said that she had lived in the house with Mrs NZQ from August 2013 until June 2014 and was of the view that the house was liveable.
In her oral evidence on 17 May 2017, Ms FYQ: 1. said that in letters to Pelosi & Associates that were not before the Tribunal, she indicates that she took into account the services she was providing for Mrs NZQ against any obligation to pay rent; 2. agreed that there are no records indicating that she took into account any rent that might be payable for her occupancy of the house and offset against that amount the value of what she was doing for Mrs NZQ. She said that she should not have been expected to pay rent because of the condition of the house. 3. said that she moved out of her own house and prepared it for sale when she was living in the Southwest Sydney property. There was not much to be done to prepare the house other than remove all the furniture other than her bed. She said that although she had removed the furniture she could have still lived in her house and had done so for some time.

[15]

Expenses claimed

In an email to Ms FYQ dated 21 September 2014, Ms GAD suggests that Ms FYQ "pay yourself your reasonable charges when [Mr BXQ]'s unit is sold, i.e. for organising the renovation…and for doing the probate". She states that she gives Ms FYQ "carte blanche" and believes that she is honest. However in an email dated 23 September to Ms FYQ, Ms GAD states "lack of communication with you…has promoted me to become alarmed as to your intentions…"
In the November/December letter, Ms FYQ states that she had stopped making improvements on the Southwest Sydney property and that the "taps, toilet and shower are still leaking" and she had not addressed damp proofing. She states "I do not propose to do anything else, other than to preserve the status quo, and stop the house from deteriorating further. Any improvements I have made to mum's house will persist after she passes and add value to her estate".
In the November/December letter, Ms FYQ also states that if she has "not yet attended to providing ([Ms GAD]) with proof of the expenses that I am incurring it is because I have needed to prioritize". She states that she has prepared "a schedule of expenses that I have incurred" and that if she has forgotten any expenses she "will amend the bill".
The expenses included in the "schedule of expenses" are: 1. For "funeral and expenses" $19,208 2. Ex Gratia payments for assistance in packing and disposing of property: 1. payment to Ms FYQ's daughter of $2,000 2. payment to Ms FYQ's son of $2,000 3. payment to Ms FYQ's friend, Mr Y, of $10,000 1. A "gift of money for the work and support" she had provided estimated by reference to her "time, loss and labour to amount to $50,000". 2. She notes that to date she has reimbursed herself $18,000 and that she does not have receipts for all of the expenses having "paid certain bills in cash in order to obtain a cheaper price".
A letter dated 5 December 2014 on behalf of Ms GAD from Pelosi & Associates to Ms FYQ requests: 1. copies of bank statements related to Mrs NZQ's bank accounts; 2. verified details of the value of the "time, loss of labour, etc", and reasons for and need for incurring the liabilities in recompense of which, in her the November/December letter, she claims $50,000; 3. evidence of payments made.
In an email to Pelosi & Associates dated 12 December 2014 and in response to their letter of 5 December 2014, Ms FYQ states in effect that: 1. she has supplied bank statements to Pelosi & Associates. 2. the $50,000 liability in respect of which she had recouped $18,000 relates to: 1. burying Mr BXQ; 2. finding nursing home accommodation for Mrs NZQ; 3. emptying, cleaning and preparing Mrs NZQ's home for rent or sale; 4. applying for letters of administration. 1. the reasons for incurring the liability "are based in humanity, love of family, common sense and efficiency". 2. the request for verification is a "strange question", and was she "supposed to keep time sheets?"
In an email to Pelosi & Associates dated 13 December 2014, Ms FYQ states that Ms GAD suggested that the carpets be removed from Mrs NZQ's home and the floor polished and requested that a built-in wardrobe replace the old bedroom furniture.
In her 30 March 2017 witness statement, Ms FYQ states that the claim for $50,000 and an additional $14,000 for ex gratia payments was a "sardonic" claim meant to "impact and resonate with [Ms GAD] as equating to the exact amount she now held in her possession, belonging to my mother". She also claims that whilst she spoke of a "gift" in the November/December letter, it was not a "gift" but remuneration for work done and services provided.
In respect of the nominated amount of $50,000, in her oral evidence and in submissions, Ms FYQ said that: 1. Her reference to $50,000 in the November/December letter was not intended as real claim and was intended to highlight what she deserved. She said that the $50,000 amount was nominated as this is the amount that she claimed Ms GAD had taken from Mrs NZQ's bank account and about which she had commenced recovery action in the Local Court. Ms FYQ agreed that the letter sounded like a claim for funds but said that it was in the context of seeking to recoup the $50,000 from Ms GAD. 2. All her figures were exaggerated but Ms GAD never came back with a counter offer.
In a witness statement dated 22 June 2015 Ms FYQ states that: 1. Construction Company XYZ valued the work she arranged on the Southwest Sydney property at $24,293 plus GST. 2. By December 2014, she had spent $20,308 comprising $19,108 of her own funds and $1,200 from the sale of motor vehicles that had belonged to Mr BXQ. The detail of the expenditure was: 1. $7,532 on the funeral of the late-Mr BXQ, his wake and death certificate, the filing fee for the Letters of Administration, locksmith fees, removal and transport of belongings from the unit to the Southwest Sydney property; 2. $7,600 on repairs, maintenance and renovations at the Southwest Sydney property; 3. $5,176 on Mrs NZQ's fees, clothing and medications. 1. Ms FYQ states that she had substantially reimbursed herself for the $19,108 by way of 12 payments of $1500 each from Mrs NZQ's bank accounts.
Annexed to Ms FYQ's Witness statement of 22 June 2015 are letters from Construction Company XYZ. The letters, which are attributed to the Director, Construction Company XYZ, are not signed. During the hearing of this matter in 2015, Ms FYQ said that the Director of Construction Company XYZ is her son. Both letters are dated 21 June 2015 and comprise the following: 1. A letter dated 21 June 2015 from Construction Company XYZ reports that the Southwest Sydney property had the following defects and advises that they be rectified before the property was let: 1. Sub-floor moisture and mould growth and mould on furniture, walls and ceiling; 2. Moss on downpipes; 3. Deteriorated wiring and lack of a safety switch, existing electrical circuits working to their maximum capacity and a lack of power outlets; 4. Dilapidated brick garage and attached carport at risk of collapse; 5. A scope of work proposed to rectify the defects is quoted at $21,413 plus GST. 1. A letter dated 21 June 2015 from Construction Company XYZ is ambiguous. It states "the following is the estimated value of the work completed at [xx] Avenue [Southwest Sydney]", but concludes "the above scope will be carried out for the sum of $24,293.00 plus GST". The scope of work comprises: 1. Clearing of the garage and disposal of waste and final cleaning of the premises; 2. Removing household items, stripping carpet and underlay, and disposing of them; 3. Polishing floors; 4. Removing and replacing light fittings; 5. Regrouting and sealing of tiles in the bathroom; 6. Replacing the toilet cistern and tap washers; 7. Supply and installation of new shaving cabinet.
The transcript of the proceedings on 24 June 2015 when this matter was initially considered, record that Ms FYQ's evidence was to the effect that the work on the Southwest Sydney property was completed by December 2014 and in her November/ December letter, Ms FYQ states that she had ceased work on the Southwest Sydney property.
In oral evidence at the current hearing, Ms FYQ said that she stopped work on the house because she had no time left to supervise the renovations and she was also concerned that Mrs NZQ might die within a short period. She recommenced work when it was clear that Mrs NZQ would live for longer and the house was to be let.
In a letter dated 28 January 2016 addressed to the Tribunal, Mr X of Construction Company XYZ reports that the following work was carried out on the Southwest Sydney property between mid-July 2015 and mid-October 2015: 1. Installation of a mechanical sub-floor ventilation system; 2. Inspection, removal, and replacement of stormwater drainage system; 3. Cleaning of guttering; 4. Replacement of the electrical system including new light fittings and additional power points; 5. Removal of rubbish from the garage and repairs to the garage.
In oral evidence at the current hearing Ms FYQ said: 1. She had not sought professional advice about the renovations because she was experienced in these matters and that she was able to access to advice of her son, who is a builder. 2. It had occurred to her to seek an independent assessment of the work to be done but was satisfied that the documentation from Construction Company XYZ was adequate and that if anyone had wanted to object to the fact that only one quote was received, they could have done so.
During the hearing and whilst still acting for Ms FYQ, Mr Glissan explained that the Construction Company XYZ letters arose because once he was retained he recommended to Ms FYQ that she obtain evidence about the repairs to the Southwest Sydney property.
In a witness statement dated 30 March 2017 Ms FYQ lists the following matters as comprising a claim for reimbursement: 1. Disposing of the contents of and renovating the Southwest Sydney property; 2. Disposing of the contents of the late-Mr BXQ's unit; 3. Attending to filing for probate; 4. Advertising goods for sale; 5. Visiting her mother on a daily basis; 6. Attending to correspondence with Ms GAD; 7. Attending the Centrelink enquiries and nursing home applications.

[16]

Unjust enrichment

In the November/December letter, Ms FYQ states that on 12 September 2014, Mr BXQ's unit was valued at $430,000 to $460,000.
In an email dated 4 February 2015 to Pelosi & Associates, Ms FYQ confirms that she intends making an unjust enrichment claim and states that "the only person who needs to approve the above figures is the beneficiary, my mother".
In a letter on behalf of Ms GAD to Ms FYQ dated 11 February 2015, Pelosi & Associates state, in effect that: 1. Ms GAD did not object to Ms FYQ being reimbursed for monies spent on the unit so long as Ms FYQ was able to establish that she had "actually and with appropriate authority expended those funds" or that "it was necessary to incur those expenses in order to maintain the unit in a good condition and state of repair". 2. Ms GAD specifically did not consent to charges incurred to satisfy Ms FYQ's "personal taste" and was of the view that the work required was limited to painting, replacing a hotplate in the kitchen, a new vanity in the bathroom, and a closet in the entrance hall.
In an email dated 17 February 2015 to Ms FYQ, Pelosi & Associates, on behalf of Ms GAD, submit that Ms FYQ is not entitled to claim the value of unjust enrichment of the estate of Mr BXQ and set out their reasoning to the following effect: 1. Mrs NZQ is the beneficiary of the estate and any increase in the value of the estate belongs to the estate, which will pass to Mrs NZQ. 2. The power of attorney does not authorise Ms FYQ to deal with Mrs NZQ's estate other than by direction from Mrs NZQ. 3. However, as Mrs NZQ is not capable of making decisions, any funds derived from the sale of the unit must be kept in an account owned by Mrs NZQ. 4. Ms FYQ is entitled only to reimbursement of funds properly expended for and on behalf of the estate.
In a letter dated 1 March 2015 to Pelosi & Associates, Ms FYQ states that:

she improved the unit utilising her funds, time, and effort;
the improvements she made resulted in the unit selling for a price greater than its previously assessed value.
Mrs NZQ would not have objected to her "renovating the unit to my benefit".

At the hearing of this matter on 24 June 2015, counsel for Ms FYQ advised that she would not be proceeding with the unjust enrichment claim.
In an email dated 23 November 2015 to Melinda Wilkes at the NSW Trustee and Guardian, Ms FYQ notes that she had not yet completed administration of the estate of her late-brother there was "$95,000 in trust" and that there were "outstanding claims on the estate for commission and unjust enrichment".
At the hearing conducted on 3 March 2017, Mr Glissan said that he had advised Ms FYQ that that the only way to be recompensed for monies spent on the unit was by way of commission and she had made an application for commission to the Supreme Court. At that time she was awaiting the outcome of her application.
In her oral evidence on 6 March 2017, Ms FYQ said words to the effect she had increased Mrs NZQ's estate by her efforts with the unit but Mrs NZQ would not need the increased funds which would ultimately form part of the estate to be distributed on her death. Therefore the people to benefit from her efforts were her and Ms GAD and she was upset that her efforts would advance Ms GAD's interests. However, she said that she would not be pursuing the unjust enrichment claim and that the $95,000 held in trust was accumulating interest and could be used to pay the Refundable Accommodation Deposit at the aged care facility.
In her Witness Statement dated 30 March 2017, Ms FYQ indicates that she did not accept the legal advice given previously and is pressing her claim for unjust enrichment.
At the hearing conducted on 17 May 2017, Ms FYQ said that despite the view of Pelosi & Associates and of Mr Glissan that she was not entitled to make claim for unjust enrichment, she did not seek further legal advice as to her entitlement before once again deciding to press her claim because: 1. She rejected the advice of Mr Glissan for the reason, amongst others, that she thought he had a conflict of interest; and 2. She is legally qualified and the result of her own research was to the effect that her claim was justified.

[28]

Submissions on behalf of Ms FYQ

In her submissions Ms FYQ refers to the email from Ms GAD on 21 September 2014 in which she suggested that Ms FYQ pay herself "reasonable charges when [Mr BXQ]'s unit is sold for organising renovation…and doing probate" and her response where she states " I agree that I should be remunerated for all my physical and mental work in resolving mum and [Mr BXQ]'s situation".
Ms FYQ submits that a fiduciary will be absolved from liability for what would otherwise be a breach of fiduciary duty if fully informed consent has been provided. She submits that as a "direct beneficiary" of Mrs NZQ's estate, Ms GAD "has the same interest" as Mrs NZQ, and "stood in the place of my mother" and therefore could provide informed consent for the expenditure on renovating the Southwest Sydney property and the unit and that she did so by email dated 21 September 2014.
Ms FYQ also submits that the September 2014 correspondence represents a contract between her and Ms GAD for the work that Ms FYQ undertook and that the contract could be imputed to Mrs NZQ because Ms GAD stood in her place, and the contractual arrangement modified Ms FYQ's fiduciary duty.
Ms FYQ also submits that her failure to provide receipts to Ms GAD for the expenditure on renovating the unit should be considered against Ms GAD's refusal to provide evidence of the whereabouts of the $50,000 given to her by Mrs NZQ.
Ms FYQ also submits that even if she were in breach of her fiduciary duty, she would be entitled to claim an amount by which her efforts increased the value of the estate of the late-Mr BXQ and that she intends to pursue her claim for unjust enrichment and to seek an allowance for attending to the matters set out in her statements of 22 June 2015 and 30 March 2017.
In her oral testimony on 17 May 2017, Ms FYQ explained her submissions to the following effect: 1. Her actions have never been done as Mrs NZQ's attorney, rather as a member of a family. Legal issues do not apply to acting as a family member. As her mother could not give consent, the next best person to consent was Ms GAD. As the hearing is in a legal context it was necessary to place the circumstances in a legal context, which she did by way of reference to the legal constructs of fiduciary duty and contract. 2. She believes that Ms GAD was able to consent to her actions because she and Ms GAD had the same interests in the estate of Mrs NZQ.
In oral submissions Ms FYQ also submitted that: 1. She has acted in Mrs NZQ's best interests by preserving her pension as a consequence of the advice she obtained and passed on to the NSW Trustee and Guardian regarding using rental receipts to offset a Refundable Accommodation Deposit. 2. She has retained Mrs NZQ's estate and arranged rental of the Southwest Sydney property when the NSW Trustee and Guardian would otherwise be likely to sell the property rather than renting it. 3. She has done nothing wrong in her management of Mrs NZQ's affairs. 4. It is "mercenary" to request her to pay rent for living in Mrs NZQ's house where she was surrounded by the others' belongings, when she had her own "beautiful" house in which she could have lived. 5. With respect to the claim for unjust enrichment, she sustained a detriment in managing the estate of Mr BXQ, which included sacrificing three months of long service and the cost of a cancelled flight when she returned early from her holiday and stayed to look after Mrs NZQ's affairs. 6. In her view she should remain as the attorney. Mrs NZQ's house would be managed by a real estate agent to whom Ms GAD would have access and Mrs NZQ's funds would be placed in term deposits. The estate would be easy to manage and there is little to be done by a financial manager.

[29]

Submissions of the separate representative

Mr Burwood expressed views to the following effect regarding Ms FYQ's actions as the attorney: 1. There are things that she has said and written that put a shadow on her performance as Mrs NZQ's attorney. These include delays in letting the Southwest Sydney property and a lack of receipts for funds paid out. 2. Some of the issues in contention, such as the commission Ms FYQ sought for the administration of the estate of the late-Mr BXQ, have been have been finalised. 3. Ms FYQ has taken on a variety of tasks on behalf of Mrs NZQ, including arranging the repairs on the Southwest Sydney property, managing the renovation and sale of the unit and facilitating arrangements so that Mrs NZQ's pension is not affected by rental receipts because she is paying off part of the Refundable Accommodation Deposit. Ms FYQ's efforts also resulted in the return of $55,000 to Mrs NZQ, being the $50,000 that Ms GAD characterised as a gift and $5,000 in costs for the Local Court matter that was settled. 4. There is no evidence of any diminution in Mrs NZQ's estate during the period it has been managed by Ms FYQ. 5. Ms FYQ feels that her efforts on behalf of Mrs NZQ are not acknowledged. 6. There is significant conflict between Ms GAD and Ms FYQ and each has commenced litigation involving the other. Ms GAD filed her application to this Tribunal and Ms FYQ filed her application in respect of the $50,000. In the view of Mr Burwood, if Ms FYQ were to "win" in the current proceedings there is likely to be ongoing litigation regarding Mrs NZQ's affairs. In his view the ongoing litigation involving each of Mrs NZQ's adult children is not in the best interests of Mrs NZQ. He believes that the appointment of an independent financial manager would be in the best interests of Mrs NZQ as it would allow things to "settle down". If after some years of independent financial management Ms GAD and Ms FYQ had "come to terms with each other" an application could be made to revoke a financial management order. 7. With respect to the unjust enrichment claim, if Ms FYQ believes that she has been "short changed" in respect of the work she arranged on the unit, she could make an application to the NSW Trustee and Guardian seeking recompense. An independent decision maker would therefore consider the claim, thus avoiding the conflict of interest that she faces as both the claimant and the attorney with decision-making authority.

[30]

Does Ms GAD have standing to make the application?

Section 35(1) of the Powers of Attorney Act provides that a person may apply for an enduring power of attorney to be reviewed if s/he is: 1. an attorney (including an attorney whose appointment has been purportedly revoked), 2. the principal, 3. any person who is: 1. a guardian of the principal (whether under the Guardianship Act or any other Act or law), or 2. an enduring guardian of the principal under the Guardianship Act, 1. any other person who, in the opinion of the review Tribunal, has a proper interest in the proceedings or a genuine concern for the welfare of the principal.
In the matter of KTC [2011] NSWGT (18 October 2011), subsequently followed by the Tribunal, the meaning of genuine concern for the welfare of the person was considered with reference to other case also subsequently followed by the Tribunal as is set out in the following extract: [55] In two cases the Tribunal carefully considered what this standing provisions requires (ACJ [2007] NSWGT 15; QAG [2007] NSWGT 12). The Tribunal decided that, in the context of the Guardianship Act, a genuine concern for the welfare of the subject person requires: a. that the applicant is bringing to the attention of the Tribunal a fact situation in which the subject person's interests may call for intervention by the Tribunal; b. that the applicant is sincere in seeing the situation as one that may call for the intervention of the Tribunal in the interests of the person; and c. that the application is motivated by a desire to advance the welfare of the person. The interests of the person must be the primary motivation for the application. [56] The word welfare is used broadly in the Guardianship Act to include financial as well as personal welfare. [57] The Tribunal set out a non-exhaustive list of factors that it may find it useful to consider: a. How the applicant explains the reasons for the application and the kind of orders sought, in the application and in other relevant documents and evidence. b. Has the applicant taken any reasonable steps to clarify and resolve the situation before bringing it to the Tribunal? c. The relationship of the applicant and the person subject of the application. Is it a family relationship, a friendship, a professional relationship or, for example, a neighbour? How longstanding and close is the relationship? Does the relationship involve any professional or other responsibility of the applicant for the person? Has the relationship been marked by positive and/or negative action by the applicant towards the person? d. The views of the person in relation to the issue of genuine concern. Does the person now or has the person over time expressed views in relation to their perception of the applicant and their relationship with the applicant? e. Does the applicant have a conflict of interest? Is this conflict more apparent than real? f. What is the nature of any conflict of interest? Does the applicant acknowledge the conflict? How does the applicant reconcile or propose to manage the conflict?
In the KTC matter the Tribunal further considered standing to bring an application to the Tribunal as a person with a "proper interest": Application to review power of attorney [58] To be an "interested person" who has standing to seek a review of the power of attorney under the Powers of Attorney Act 2003, Mr GRT needed to be a "person who, in the opinion of the review Tribunal, has a proper interest in the proceedings or a genuine concern for the welfare of the principal" (Section 35 (1)). [59] The Powers of Attorney Act was passed by Parliament subsequent to the Guardianship Act. The Tribunal saw the expression, "person who, in the opinion of the review Tribunal, has a genuine concern for the welfare of the principal" as having the same meaning as in the Guardianship Act. [60] However, the Tribunal needed to carefully consider what is meant by a "person who .... has a proper interest in the proceedings". This expression must be intended to extend the standing provision beyond people encompassed by the genuine concern test. [61] The expression "proper interest" is also the basis of the standing provision for applications in relation to enduring powers of attorney to the State Administrative Tribunal of Western Australia. However, cases interpreting that provision are of limited use due to proper interest being the only basis for applications in Western Australia and the Western Australian Tribunal having a much more limited range of orders that it can make on a review (Guardianship and Administration Act 1990 (WA) s 109). [62] The expression "proper interest" needs to be interpreted in the context of the Powers of Attorney Act NSW. [63] In Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited & others [1994] FCA 996, the Full Federal Court considered the meaning of a person whose "interests are affected by the decision" - the test for standing to seek administrative review in the Administrative Appeals Tribunal. Gummow J said at 22: Like the expression "a person aggrieved", the phrase "a person whose interests are affected by the decision" and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review. The day is long gone when there was any general presumption that in such statutes the "interests" concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law. However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute. In each case, the content of the terms "affect" and "interest" are to be seen in the light of the scope and purpose of the particular statute in issue. [64] In Allan v Transurban City Link Ltd [2011HCA 58] the High Court quoted Brennan J from another Federal Court case: "Across the pool of sundry interest, the ripples of affection may widely extend" (Re McHatton and Collector of Customs (NSW) (1967 ALD 67). However, the High Court said that this did not mean that any ripple of affection would be sufficient to support an interest. The starting point was the construction of the particular act, "with regard to its, subject, scope and purpose". [65] In the Powers of Attorney Act obviously, "proper interest" requires two things. First, the applicant needs to have an interest and second, the interest needs to be proper. [66] The Macquarie Concise Dictionary fourth edition has a number of definitions of "proper", relevantly including: a. adapted or appropriate to the purpose or circumstances; fit; suitable: the proper time to plant b. conforming to established standards of behaviour or manners; correct or decorous. [67] The Tribunal saw the word "proper" as meaning that the interest of the applicant must be appropriate to the powers of the Tribunal on a review, in other words there must be a nexus between the interest and the powers on the review. [68] In interpreting the word "interest", the Tribunal first noted that the Powers of Attorney Act includes a strong protective element in relation to principals with impaired capacity like Mrs KTC but also a broader range of regulation of powers of attorney. [69] Division 4 of the Act is about reviews of certain powers of attorney by the Guardianship Tribunal and Supreme Court. The division applies to enduring powers of attorney and other powers of attorney given by a principal who has become incommunicate (section 33). [70] The powers that the Tribunal has on a review are predominantly relevant to situations where the principal no longer has capacity to make, revoke or vary a power of attorney or hold the attorney to account. The Tribunal may declare that the principal did or did not have the mental capacity to make a valid power of attorney and that a power of attorney is invalid due to lack of capacity or other reasons. The Tribunal may, "if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal", make a range of orders in relation to the operation and effect of a power of attorney. This includes orders varying the power, changing the attorney or requiring the attorney to furnish accounts and that the accounts to be audited. The Tribunal may decide to make no order on the review and instead treat the application as an application for a financial management order under the Guardianship Act (Sections 35 and 36). [71] The Tribunal felt that the proper interest test had to be interpreted cautiously taking account of the intrusion on the affairs and privacy of the principal that an application under the Powers of Attorney Act entails.
In her final submissions received on 3 April 2017 Ms FYQ submits in effect that Ms GAD does not have a genuine concern for Mrs NZQ's welfare because: 1. Her concerns are about Mrs NZQ's monetary matters, not her physical or emotional welfare. 2. She did not return to Australia to assist with the funeral of Mr BXQ and to the comfort Mrs NZQ. 3. By making the application to which Ms FYQ has needed to respond, Ms GAD has reduced the time available to Ms FYQ to be of assistance to Mrs NZQ. 4. Ms GAD had taken $50,000 from Mrs NZQ and only returned the funds after Ms FYQ had commenced litigation.
In respect of Ms FYQ's submission the Tribunal is of the view that: 1. No issue regarding standing had been raised at the commencement of the hearings. Had Ms FYQ believed that Ms GAD lacked standing to bring the application she should have raised that matter at the commencement of the hearing, not in submissions at the end of the third day of the hearing of the matter. 2. There was no finding made against Ms GAD in the Local Court in respect of the alleged misappropriation of $50,000 from Mrs NZQ which she has repaid. She and Ms FYQ provide contested accounts of that matter about which the Tribunal is not required to make, and has not made, a finding. 3. The concern held by Ms GAD for the management of Mrs NZQ's financial affairs does not preclude her from having genuine concern for her welfare, including matters other than her financial matters. 4. The bringing of the application and any need for the attorney to defend claims made does not amount to a lack of concern for the principal.
In assessing whether or not Ms GAD has a genuine concern for the welfare of Mrs NZQ the Tribunal took into account: 1. In her oral evidence Ms GAD referred to a particularly strong relationship she shared with Mrs NZQ during her childhood because Mrs NZQ was very young when she gave birth to Ms GAD who had later assisted her to care for the children born later. She said that this strong bond has continued. 2. There was no evidence of any estrangement of the relationship between Mrs NZQ and Ms GAD. 3. Whilst Ms GAD lives in Spain, she remains in regular contact with her mother and has spent long periods of time visiting Australia and visiting her mother and has been in regular contact with her by telephone. 4. Ms GAD has been consistent in her efforts to involve herself in the management of Mrs NZQ's affairs, predating her application to the Tribunal. 5. The matters alleged by Ms GAD are matters that are properly within the remit of the Tribunal.
Specifically in considering the matters listed in the KTC matter the Tribunal reached the following conclusions: 1. Ms GAD has brought to the Tribunal concerns that are properly within its remit and seeks to ensure that Mrs NZQ's affairs are managed in her best interests. She does not seek to control Mrs NZQ's affairs herself, but seeks the furnishing of accounts and the appointment of the NSW Trustee and Guardian to manage Mrs NZQ's affairs. 2. Ms GAD has taken steps to clarify and resolve the situation prior to bringing it to the Tribunal, including hiring a lawyer to assist in the matter. Ms GAD, and Pelosi & Associates on her behalf, has engaged in correspondence with Ms FYQ for some years regarding this matter. The email correspondence regarding arrangements for the rental of the Southwest Sydney property commenced soon after Mrs NZQ was placed in the aged care facility and there has been ongoing correspondence about the administration of the estate of the late-Mr BXQ. 3. There has been an ongoing close relationship between Ms GAD and Mrs NZQ. 4. There is no evidence of a current conflict of interests between Ms GAD and Mrs NZQ and no conflict that would apply if Mrs NZQ's affairs were managed by the NSW Trustee and Guardian as she has requested. 5. There is considerable conflict between Ms GAD and Ms FYQ and the application arises in part due to their inability to resolve issues about the management of Mrs NZQ's affairs. 6. Mrs NZQ is not able to manage her own affairs and is of advanced age. The current management of her affairs is inextricably linked to the state of her estate on her death and to that extent, Ms GAD's concerns relate to the preservation of the estate in the context of the conflict, and in particular to preventing Ms FYQ from accessing more of the estate than Ms GAD believes is her proper entitlement. However, Ms GAD's email correspondence to Ms FYQ demonstrates an acceptance of Ms FYQ's right to proper recompense for funds she has expended and the Tribunal is not satisfied that the primary motivation for the application is a wish to preserve the estate against valid claims. To the extent that it represents a wish to preserve the estate against invalid claims, the Tribunal is of the view that this reflects a concern for Mrs NZQ's financial welfare.
Taking into account the matters set out in the preceding sub-paragraphs, the Tribunal is satisfied that Ms GAD's motivation for the application arises primarily from her genuine concern for the welfare of Mrs NZQ, including her financial welfare, and by virtue of the concern, Ms GAD has standing to bring the matter to the Tribunal.
The Tribunal is also of the view that Ms GAD has a "proper interest" in the matter due to the following matters: 1. Ms GAD was appointed by Mrs NZQ jointly and severally as an attorney. That appointment was revoked in 2009 under circumstances in dispute between Ms GAD and Ms FYQ, after Mrs NZQ was diagnosed with dementia and around the time at which Dr Z had assessed her as being unable to manage her affairs. 2. Ms GAD is likely to be a joint beneficiary in the estate managed by Ms FYQ as Mrs NZQ's attorney, a situation acknowledged by Ms FYQ in her submissions and claimed as a basis for Ms GAD being able to stand in the place of Mrs NZQ to consent to Ms FYQ expending funds on behalf of Mrs NZQ. 3. Ms FYQ has involved Ms GAD in the management of Mrs NZQ's affairs including by way written correspondence regarding the rental of the Southwest Sydney property and the renovations to the unit. The Tribunal is satisfied that Ms FYQ has recognised that Ms GAD has an interest in these matters. 4. The Tribunal is satisfied that as Mrs NZQ's daughter, previous attorney and likely beneficiary, Ms GAD has a proper interest in the proper administration of her estate.
Having considered matters related to evidence of Ms GAD's concern for the welfare of Mrs NZQ as well as her interest in the matter, the Tribunal is satisfied that she is an "interested person" to bring the application to the Tribunal.

[31]

Should the Tribunal conduct the review?

In Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, Slattery J stated [at 80]: On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what... (a party )...has produced.
The Tribunal decided to conduct a review of the enduring power of attorney for the following reasons. 1. In her application and supporting documentation Ms GAD raised a number of concerns about Ms FYQ's management of Mrs NZQ's estate. These concerns included: 1. Ms FYQ had lived rent-free at the home of Mrs NZQ. 2. Ms FYQ was claiming reimbursement for funds expended on behalf of Mrs NZQ but had not provided evidence of the expenditure. 3. Ms FYQ was the administrator of the estate the late-Mr BXQ of which Mrs NZQ was a sole beneficiary. Ms FYQ claimed reimbursement for funds expended as the administrator as well as payment of an amount in considering of the extent to which she had enriched the estate by making improvements to the home unit of Mr BXQ which resulted in it achieving a higher sale price than would otherwise have been the case.
Ms FYQ has responded to Ms GAD's concerns and the Tribunal was in receipt of a large number of documents provided by the parties in respect of the matters raised. On behalf of Ms FYQ, Mr Glissan submitted that she had provided accounts regarding her financial claims and had otherwise answered the matters raised in the application.
At the commencement of the current hearing of the matter, Mr Burwood said that he considered the application to be somewhat "light on" and characterised it as being about: 1. Gifts amounting the $14,000, which had been explained by the attorney. 2. A claim made by the attorney for unjust enrichment of the estate of the late-Mr BXQ that was not being pursued by the attorney/administrator of the estate. 3. The attorney living rent-free in Mrs NZQ's house, which was an old house, and on the evidence of the attorney was in need of repair and maintenance. 4. Expenditure by the attorney/administrator about which Mr Burwood had "felt comfortable"
In reply to Mr Burwood's submissions, Mr Restuccia submitted that the claims made by the attorney/administrator regarding the expenditure of funds, the appropriateness of paying rent to reside in Mrs NZQ's house and the legitimacy of the unjust enrichment claim were not made out on the documents.
The Tribunal took into account the views of Mr Burwood, as well as those of the parties and was not of the view that the matters raised in the application had been conclusively settled by the responses of the attorney. The Tribunal was also of the view that it was not possible, based on a survey of the evidence, to be satisfied that it should not proceed with the review.
The Tribunal was satisfied that the matters raised by Ms GAD were matters that had been appropriately brought to the Tribunal and ones that might result in an order being made and that required a more thorough review of the evidence. Accordingly, the Tribunal determined that it should conduct the review.

[34]

Duty to keep records and to account

There is no statutory requirement that the attorney keep records and accounts. However, a general law obligation exists. This was considered by Slattery J in Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 as follows: "The attorney's obligation is really one to keep accurate primary accounting records, for which the principal can call, if necessary, for the principal's examination. If the principal then wishes to produce secondary accounts, or full financial accounts, that is a matter for the principal" [at 64].
The Tribunal is satisfied that due to the nature and extent of her long-term dementia, as evidenced in Dr Z's letter dated 17 June 2015, Mrs NZQ is not able to ask for accounts to be furnished. However in her correspondence with Ms FYQ, Ms GAD made frequent requests to be provided with proper accounts regarding the management of Mrs NZQ's affairs. Whilst Ms FYQ states that she provided copies of bank statements and a list of expenditure to Pelosi & Associates she has not provided receipts for the amounts she expended either on the Southwest Sydney property or on the unit.
Ms FYQ has provided a number of explanations of her failure to provide receipts including that: 1. She was too busy to provide receipts; 2. She does not have receipts for all the expenditure because she paid cash for some items to obtain a cheaper price; 3. She was not acting as an attorney in expending the sums, but as a family member; 4. The $50,000 claim and claim for $14,000 in ex-gratia payments were not real claims; 5. In respect of the $50,000 claim, Ms GAD never came back with a "counter offer"; 6. Her failure to provide receipts to Ms GAD for the expenditure on renovating the unit should be considered against Ms GAD's refusal to provide evidence of the whereabouts of the $50,000 given to her by Mrs NZQ.
In respect of the November/ December letter: 1. The Tribunal does not accept that Ms FYQ did not intend to make a claim on the estate in respect of the $50,000 and $14,000 and does not accept that the claims were "sardonic" or not real as submitted by Ms FYQ. The Tribunal has reached that view taking into account: 1. The November/ December letter is a response to a letter from Pelosi & Associates dated 24 November 2014 containing requests for information. 2. The November/ December letter lists the $50,000 and $14,000 claims as well as others under a heading of a "Schedule of expenses" and speaks of amending "the bill" if other expenses come to mind. The Tribunal is of the view that this terminology suggests that an actual claim is being made. 3. The November/December letter includes other claims including those for which Ms FYQ states she has in fact reimbursed herself in the amount of $18,000. 4. The nomination of the $50,000 as a gift "for the work and support I have provided" also includes a list of matters that comprise the "time, loss and labour" for which the gift would compensate". The Tribunal is of the view that listing these matters suggests that an actual claim is being made. 1. Ms FYQ's claim during the current hearing that the $50,000 was not a real claim appears to be an abandonment of a claim for that amount. However some of the items constituting that claim are also claimed under other categories for which she has claimed recompense. 2. In respect of claims for the $50,000 gift in recompense for "time, loss and labour" and the claim for $14,000 for ex gratia payments, the Tribunal is of the view that: 1. As an attorney, Ms FYQ had a responsibility to keep accounts where she was intending to seek reimbursement and whether Ms GAD made a "counter offer" is not relevant. 2. In claiming repayment for those amounts an attorney should ensure the availability of receipts and other records as a basis of the claim. These were requested by Pelosi & Associates in response to the November/December letter but were not provided by Ms FYQ and have not been provided to the Tribunal. 1. In respect of the other claims made in the November/ December letter including expenses related to the administration of the estate of the late-Mr BXQ and work on the Southwest Sydney property, the Tribunal is of the view that as the agent of another in authorising and paying for the work, the attorney should have ensured the availability of receipts and other records as a basis of those claims. Whether Ms GAD had accounted for the $50,000 she obtained from Mrs NZQ was not relevant to Ms FYQ's duty as an attorney to obtain receipts to justify a claim for reimbursement. Receipts and other records were requested by Pelosi & Associates in response to the November/December letter but were not provided by Ms FYQ and have not been provided to the Tribunal.
Ms FYQ has also claimed that she lent the estate of the late-Mr BXQ $39,575. The Tribunal accepts that this claim is based on monies that Ms FYQ states she expended on the estate and is not intended to be understood as a "loan" in the usual sense of that word. However, there are no proper records provided to the Tribunal in support of the claim that the sum was lent to the estate.
It was submitted on behalf of Ms FYQ that the Supreme Court accepted that the funds had been expended when it ordered that Ms FYQ be paid the commission. However this highlights the anomalous situation that the expenditure claimed to comprise the loan is included in Ms FYQ's Supreme Court claim for commission and in her claim for unjust enrichment of the estate of the late-Mr BXQ and the "schedule of expenses" in the November/December letter including the matters for which she had reimbursed herself $18,000 and the matters comprising the "time, loss and labour" that comprised the work and support justifying the claim for the $50,000.
The provision of proper accounts for the expenditure would have assisted to ensure that each of these items was claimed only once under only one category of claim.
There is no independent assessment of what work was required on the unit to prepare it for sale, and Ms GAD was of the view that the work required was less than that approved by Ms FYQ.
In support of her claims for expenditure on the Southwest Sydney property, Ms FYQ has submitted two unsigned letters from Construction Company XYZ relating to work required on the property. Mr Glissan advised the Tribunal that Ms FYQ obtained those letters on his advice once he was retained to represent her in the matter. The Tribunal accepts that these letters, whilst unsigned, were written by the Director of Construction Company XYZ who is also Ms FYQ's son.
In a witness statement dated 22 June 2015, Ms FYQ states that the work she arranged on the Southwest Sydney property was valued at $24,293 plus GST by Construction Company XYZ and in a letter dated 28 January 2016, Mr X of Construction Company XYZ reports on work on the Southwest Sydney property between mid-July 2015 and mid-October 2015. There are no receipts provided for the work.
However, Ms GAD has submitted that the work required on the Southwest Sydney property was less than what was authorised by Ms FYQ. There was only one scope of works provided in respect of the work that Ms FYQ authorised on the Southwest Sydney property and no competitive quotes were obtained.
When asked about obtaining quotations for the work to be carried out on the Southwest Sydney property Ms FYQ said, in effect, that she had thought about obtaining quotations other than from her son but had not done so, and if Ms GAD had wanted to object she could have done so.
The Tribunal is of the view that acting in the best interests of the principal, the attorney should have obtained quotations in respect of the work needed and its cost, and in particular should have done so in the context of litigation already having commenced regarding the management of the estate, and, where her son was the Director of the company proposing to carry out the work. The Tribunal is of the view that Ms GAD's view about the need for quotes do not affect the duty owed by the attorney for prudent management of the estate in the best interests of the principal.
The Tribunal is also of the view that a prudent attorney would have ensured that detailed receipts were provided for work done on the property taking into account the matters mentioned in the preceding paragraph.
The Tribunal notes that the NSW Trustee and Guardian report dated 16 May 2017 indicates that an amount of $23,760 had been released to pay for property repairs to the Southwest Sydney property. The Tribunal accepts the NSW Trustee and Guardian was satisfied that the amount had been expended. However, the fact the payment was subsequently approved does not diminish the responsibility of a prudent attorney to obtain quotes and receipts when managing the affairs of the principal in the circumstances outline above.

[37]

Occupancy of the Southwest Sydney property

The Tribunal is of the view that in residing rent-free in the Southwest Sydney property without accounting for any rent or occupancy fee that might have been payable, Ms FYQ is in breach of her fiduciary duty to not benefit from the estate and also placed herself in the position of a conflict of interest. In reaching this decision the Tribunal takes into account the following: 1. There is no evidence that Centrelink advised that Mrs NZQ would be worse off financially if she was paid rent for the property. To the contrary, advice in October 2015 was to the effect that she would not be worse off if the rent was offset against the Refundable Accommodation Deposit. 2. Whilst Ms FYQ claims, in effect, that the house was unlettable and constituted unpleasant and unhealthy living conditions, she nevertheless chose to remain living there from October 2014. 3. Ms GAD expressed views to the effect that the house was suitable for habitation and she had been living there in 2014. 4. Mrs NZQ was living in the house until August 2014 and the late-Mr BXQ also lived there until his death. 5. The Tribunal does not accept that Ms FYQ was not in a position to be informed about the state of the house prior to living there when her mother and brother, with whom she claims to have a good relationship, were living there prior to her moving into the property. The Tribunal is of the view that the dampness, mould, and disrepair about which Ms FYQ gave evidence would have been in evidence at the times she visited her mother and her late-brother. 6. Over the period that she lived at the Southwest Sydney property, Ms FYQ prepared her own home for sale, including removing all the furniture other than her bed. Ms FYQ submitted that despite her own home being without furniture she could have lived there and did so for a period. However, the Tribunal is satisfied that there are inconveniences in living in a house without furniture and to avoid a conflict of interest and breach of fiduciary duty the attorney should have calculated the relative convenience/inconvenience of occupancy of her own unfurnished property compared to occupancy of the Southwest Sydney property. 7. Ms FYQ stated that at some point of time when residing in her mother's home she was considering what rent might be payable for the property and had estimated a rent of a "couple of hundred dollars". She did not pay that rent or explain why she had not paid it. 8. Ms FYQ states that she did make a calculation of the type outlined in the preceding paragraph, and that it was included in a letter to Pelosi & Associates. However, the Tribunal has not been provided with a copy of that letter and is able to place less evidence on Ms FYQ's oral evidence than if she had provided the letter. In the any case, in the absence of the letter the Tribunal is unable to assess the extent to which any calculation took into account the best interests of Mrs NZQ. 9. Ms FYQ has claimed that her occupancy of the house assisted the estate of Mrs NZQ by allowing her furniture and effects and those of the late-Mr BXQ to be kept in the Southwest Sydney property. However, the furniture and effects could have been stored in the Southwest Sydney property without Ms FYQ residing in the property over a considerable period. 10. Ms FYQ has claimed, in effect, that her occupancy of the house assisted the estate of Mrs NZQ because she was able to admit and supervise and pay workers carrying out the work on the property. However, she has also stated that for some of the period of her occupancy she had returned to work, and also that her son was available at times to supervise workers. The Tribunal does not accept that occupying the property during renovations substantially benefited the estate. Housing renovations are frequently concluded in the absence of household residents and there are other appropriate means of granting access to workers, supervising, and paying them. In the case of the Southwest Sydney property this is particularly the case as the Ms FYQ's son is the director of the building contractor, Construction Company XYZ. 11. The Tribunal accepts that the Construction Company XYZ letter speaks of repairs recommended to make the property lettable and that the proposal to lease the property speaks of doing so when the property was lettable. However, the Construction Company XYZ letters are dated June 2015 and Ms FYQ had been living in the property since October 2014. In the November/December letter, she had said that she did not intend to arrange any further work on the property. The Tribunal is not satisfied that the Construction Company XYZ letters or the notation on the lease amount to evidence that there was no rent payable by a person who was, in fact, residing in the property. 12. The Tribunal accepts that for the reasons submitted by Ms FYQ, market rent was not payable for the Southwest Sydney property. However, Ms FYQ did live there. Whilst she might not have been required to pay market rental, the Tribunal is of the view that she should have estimated the rent payable and deducted from that amount the value to the estate of her residing in the property. Such a calculation would assist to remedy a potential conflict of interest. However, Ms FYQ has not embarked on such an exercise and despite agreeing in October/November 2014 that the property should be rented she lived there rent-free for approximately 12 months even whilst the issue of rent payable by her was a matter in dispute in correspondence with Ms GAD.

[38]

Conclusions regarding the power of attorney

As noted above, Mr Burwood submitted that Ms FYQ has been active in managing the estate of Mrs NZQ and has maintained the estate until its management was committed to the NSW Trustee and Guardian.
In relation to Mr Burwood's observations: 1. The issues raised during the hearing primarily pertain to matters arising after Mrs NZQ entered the aged care facility in August 2014. 2. Discussion of matters related to Ms FYQ's occupancy of the Southwest Sydney property commenced in October 2014 and the application to the Tribunal was filed in March 2015. 3. The order committing Mrs NZQ's affairs to management by the NSW Trustee and Guardian was made on 1 July 2015.
Ms FYQ's occupancy of the Southwest Sydney property and the work she authorised on that property and on the unit are matters that were finalised by the time of the current hearing. In respect of those matters: 1. Mr Burwood expressed the view that Ms FYQ has maintained the estate of Mrs NZQ. However, the estate did not receive the benefit of rental during the period of Ms FYQ's occupancy. The Tribunal is of the view that there is a value to be placed on that occupancy, even if offset to some undefined extent by the matters raised by Ms FYQ. 2. The Tribunal accepts that after the work was completed on the Southwest Sydney property it was let for a substantial rental amount and that the unit achieved a sale price well in excess of the initial valuation. 3. However, Ms GAD has submitted that the work required on both the Southwest Sydney property and the unit was less than that carried out on Ms FYQ's authorisation. No competitive quotes were obtained regarding the Southwest Sydney property and there is no independent assessment of the work required on the unit or the cost of the work. 4. In the absence of independent assessments of the need for the work or its cost, the Tribunal is not in a position to accept or reject the proposal that Ms FYQ's efforts were beneficial to the estate, or whether better economies could have been achieved. The Tribunal is of the view that this reflects the failure of Ms FYQ to properly administer the estate including obtaining quotes and receipts for work done.
Some of Ms FYQ's claims on the estate had not been acted on by the time of the application and have not yet been finalised. Ms FYQ's maintenance of claims for unjust enrichment in addition to the amounts she has reimbursed herself and in addition to the commission awarded by the Supreme Court represents a future claim.
The Tribunal accepts, and takes into account, that Ms FYQ has expended considerable time and effort in the management of Mrs NZQ's estate up until the time it was made subject to the financial management order.
However, taking into account the conclusions of the Tribunal outlined in this section of these Reasons, the Tribunal is of the view that: 1. In her practices as attorney Ms FYQ has failed to follow procedures to justify the need to expend funds on the Southwest Sydney property and the unit including seeking competitive quotations. 2. In her practices as attorney Ms FYQ has failed to follow adequate accounting practices that are appropriate with regard to expenditure of funds including maintaining proper records and obtaining receipts for work done and amounts paid. 3. Ms FYQ has also made a number of claims on the estate that the Tribunal is satisfied are not supported by adequate records. Some of these claims are in respect of items claimed more than once. 4. In proposing to pay herself a sum in respect of unjust enrichment of the estate of the late-Mr BXQ, Ms FYQ places herself in a position of breaching the fiduciary duty owed by an attorney and places herself in a position of conflict with the interests of Mrs NZQ. 5. Ms FYQ obtained a benefit when occupying the Southwest Sydney property whilst preparing her own home for sale, including the removal of its furniture. The Tribunal is not in a position to estimate the value of that benefit, but is of the view that it was of limited benefit to the estate that she lived in the property during renovations. 6. As attorney Ms FYQ should have turned her mind to the rent that was payable, offset by the matters that she submitted made her occupancy unpleasant or by which the estate was benefitted by her occupancy of the property. There is no evidence of weight that she made those calculations whilst acting as the attorney and during the hearing she submitted that she should not have been required to pay any rent.
The Tribunal is of the view that some input and oversight is required into Ms FYQ's management of Mrs NZQ's estate if she were to retain that management. The Tribunal has reached this view taking into account: 1. The circumstances of the revocation of the power of attorney; 2. The nature of the claims made on the estate by Ms FYQ, her failure to obtain independent quotes for work to be done and her failure to obtain receipts for monies expended; 3. The conflicts of interest outlined in respect of her occupation of the Southwest Sydney property and her claims for repayment of funds that appear to have been counted under a number of categories.
When asked if she would keep Ms GAD informed about Mrs NZQ's estate, Ms FYQ offered only to provide copies of Mrs NZQ's bank statements and rental account. She also said, in effect, that she did not wish to respond to Ms GAD's repeated questions about her decisions, and also that she did not wish to speak to Ms GAD.
Taking into account the high level of conflict between Ms FYQ and Ms GAD and Ms FYQ's responses as noted in the preceding paragraph, the Tribunal is of the view that there would be no effective oversight or input into the management of Mrs NZQ's affairs by Ms GAD if Ms FYQ remained the attorney. The Tribunal was not advised of any other possible source of input or oversight.
Due to concerns as listed above regarding the manner in which Ms FYQ has carried out the role of attorney and the lack of any input or oversight of the future management of Mrs NZQ's affairs, the Tribunal is of the view that it is not in the best interests of Mrs NZQ to continue to have her affairs managed under the power of attorney.
The Tribunal is also of the view that as Ms FYQ has confirmed that she intends to make a claim against the estate of Mrs NZQ, by way of a claim for unjust enrichment, her claim is in direct conflict with the interests and constitutes a real conflict of interests such that Ms FYQ should not manage Mrs NZQ's affairs as her attorney.
However, Mrs NZQ's affairs are in need of management. There are no orders available to the Tribunal under the Powers of Attorney Act that would provide for input and oversight of the management of Mrs NZQ's affairs by her attorney. Therefore the Tribunal considered that it is in the best interests of Mrs NZQ to treat the application as an application for financial management.
On the basis of the findings above, the Tribunal decided not to make any orders under s 36 of the Powers of Attorney Act. It was satisfied, however, that it was appropriate in all of the circumstances to treat the application for review of the enduring power of attorney as an application for a financial management order.

[40]

Is Mrs NZQ incapable of managing her affairs?

In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person's own capacity to do what they are proposing to do [58]. White J used a "rational appreciation" of assets test to determine a person's capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819, who said that the task of the Court in these circumstances: … is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26].
In PB v BB [2013] NSWSC 1223, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]: Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack "mental capacity" or be "mentally ill"; or (b) particular reasons for an incapacity for self-management.
The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]): Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests? … [A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
In considering whether the person is "able" in this sense, consideration may be given to:

past and present experience as a predictor of the future course of events;
support systems available to the person; and
the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, [309].

An Aged Care Client record in respect of Mrs NZQ compiled in March 2014 indicates that at that time she 'always' had short-term memory problems and had regular long-term memory problems and confusion and she had difficulty communicating. She was diagnosed with dementia in Alzheimer's disease.
In a letter to the Tribunal dated 17 June 2015 Dr Z states, amongst other matters, that by September 2015 she was of the opinion that Mrs NZQ "no longer had capacity to make any meaningful decisions regarding her finance or personal situation".
In her Statement of Claim dated 19 March 2015 and submitted in respect of her action against Ms GAD to recoup $50,000 she alleged Ms GAD had taken from Mrs NZQ, Ms FYQ describes Mrs NZQ as having Alzheimer's dementia at the time Ms GAD acquired the $50,000.
The Tribunal was advised by all parties to the hearing and by the separate representative that Mrs NZQ was not able to effectively participate in the hearing due to the extent of her disability. There was no submission by any party or the separate representative to the effect that Mrs NZQ could manage her affairs.
The Tribunal accepts the views expressed in the Aged Care Client records and by Dr Z as outlined at [38] above, as those of suitably qualified health and medical practitioners. The Tribunal also takes into account that Mrs NZQ's diagnosis was made some years ago and is a condition that generally worsens with time. Taking into account the views of the health and medical practitioners and the nature of Mrs NZQ's condition as well as the consensus of the parties that Mrs NZQ is not able to manage her affairs, the Tribunal is satisfied that she is unable to do so.

[41]

Is there a need for a financial management order?

The Report of the NSW Trustee and Guardian dated 18 May 2017 indicates that the Southwest Sydney property is let and that at that time Mrs NZQ had a Trust account with the NSW Trustee and Guardian of $19,784 and Bank accounts with a balance of $20,173.03. She is in receipt of an Age Pension that had been redirected to the NSW Trustee and Guardian and has an Italian pension. Action to redirect the Italian pension had been delayed pending the outcome of this hearing. The Tribunal is satisfied that her financial affairs require management to oversee the rental of the Southwest Sydney property and to assess whether it is in the best interests of Mrs NZQ to continue that arrangement or to sell the property as well as to manage her cash reserves and pension and to ensure that her facility fees and Refundable Accommodation Deposit are in order.
As outlined in the section of these Reasons dealing with the review of the enduring power of attorney, Ms FYQ has indicated that she intends pursuing a claim against the estate of the late-Mr BXQ for unjust enrichment and has claimed repayment of funds loaned to the estate, whilst that loan was also included in the claim for commission. In respect of those claims, as outlined at [95], above, Ms FYQ gave evidence to the following effect regarding the estate of the late-Mr BXQ: 1. The sale price obtained for the unit was $565,000; 2. She should be allocated $40,000 as repayment of expenses (taking into account the $39,575.30 "loan" assessed by Mr W); 3. She had been awarded approximately $20,000 by way of commission; 4. She had allowed the estate $480,000 as the higher pre-renovation real estate valuation; 5. There is a remaining amount of $25,000 that she considers is available to her by way of an unjust enrichment payment.
Mrs NZQ is entitled to the estate of the late-Mr BXQ as its sole beneficiary. The Tribunal is satisfied that Mrs NZQ requires a financial manager to represent her interests in respect of Ms FYQ's claims for reimbursement of the loan and for unjust enrichment.
Taking into account the matters outlined in the preceding paragraphs, the Tribunal was satisfied that there is a need to appoint someone to manage Mrs NZQ's affairs.

[43]

Who should be appointed as financial manager?

In appointing a financial manager, as in making all other orders under the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Guardianship Act.
Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian.
In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.
On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise, and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.
The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.
The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real," should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.
In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen AsJ stated: [34] It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests.
As is detailed in the section of these Reasons dealing with the review of the enduring power of attorney, the Tribunal is of the view that Ms FYQ has had, and has potential future, significant financial conflicts of interest with Mrs NZQ.
During the hearing, Ms FYQ raised a number of issues related to the quality of management provided by the NSW Trustee and Guardian and submitted, in effect, that she was able to manage Mrs NZQ's affairs more competently than the NSW Trustee and Guardian. The Tribunal was willing to consider whether the requisite input and oversight could be provided by the NSW Trustee and Guardian in its role in respect of private financial managers if the Tribunal were to appoint Ms FYQ as the financial manager. However, Ms FYQ declined to be considered as the financial manager and said words to the effect that she was not willing to do the work of a financial manager and prepare accounts for audit by the NSW Trustee and Guardian which she considers are unnecessary, and for which they charge a fee.
In the absence of any other proposed financial manager the Tribunal was satisfied that the estate of Mrs NZQ should be committed to management by the NSW Trustee and Guardian.

[44]

Additional Matter

Section 38 of the Powers of Attorney Act provides that: 38 Advice or directions concerning reviewable powers of attorney 1) An attorney under a reviewable power of attorney may apply for advice or direction by a review tribunal on any matter relating to the scope of the attorney's appointment or the exercise of any function by the attorney under a reviewable power of attorney. (2) In determining any such application, a review tribunal may decide to: (a) approve or disapprove of any act proposed to be done by the attorney or (b) give such advice or direction as it considers appropriate, or (c) vary the effect of the enduring power of attorney or make any other order it could make in an application under section 36. (3) No proceedings lie against an attorney under a reviewable power of attorney for or on account of any act, matter or thing done or omitted to be done by the attorney in good faith and in accordance with any approval, advice or direction given under this section.
In her final submissions Ms FYQ indicated that she was pressing her claim for equitable allowance and unjust enrichment in respect of the estate of the late-Mr BXQ.
In her final submissions Ms FYQ also seeks a Direction from the Tribunal under s 38 Powers of Attorney Act with respect to "the content of my claim, laid out in her letter of 1 March 2014, above". The letter referred to by Ms FYQ is annexed to her submissions and is in fact a letter dated 1 March 2015 to Pelosi & Associates. In the letter Ms FYQ purports to "set out the applicable law" in respect of matters related to an "executor's commission" and "the value of Augusto's legacy".
On 1 March 2017, the Supreme Court ordered the payment of commission of $20,000 and the Tribunal does not comment on that matter.
The letter of 1 March 2015 also makes reference to professional charges payable to her in respect of the administration of the estate of the late-Mr BXQ. On 1 March 2017 the Supreme Court ordered the payment of $3,500 for the costs of and incidental to the filing and passing of the first and supplementary accounts plus fees and the Tribunal makes no comment on that matter
In respect of claim for unjust enrichment, amongst other matters Ms FYQ: 1. Estimates the value of the estate at $483,000 had she not had the unit renovated. This estimate took into account the income from the sale of motor bikes previously owned by the late-Mr BXQ. This estimate includes an estimation of the pre-renovation value of the unit at $460,000 based on an independent valuation obtained in December 2014/January 2015 of $460,000 to $480,000 and assuming that lower end of the valuation due to the poor state of the unit. 2. Claims that the renovations she carried out represent a debt owed to her by the estate and that she is making that claim on the basis that she "improved the unit by giving it a complete overall (sic) utilizing my funds, my time and my effort" (emphasis retained) and the improvements she made allowed the estate to sell at a higher price and that she claims the difference between the sale price and the unimproved value of the unit. 3. Submits that there is no conflict of interest and her claim and that her mother "would not have an objection to my renovating the unit to my benefit" taking into account that she (Ms FYQ): 1. returned from long service leave to arrange the funeral of Mr BXQ; 2. lost the benefit of an airline ticket and her long service leave; 3. did not tax the estate with the cost of improvements that she made; 4. paid for the improvements out of her "own pocket"; 5. put a lot of "hard work, time, money and skills into the project; 6. is the only family member living in Australia and regards her mother as her primary concern; 7. watches out for her mother and has her care and welfare at heart; 8. had obtained a valuation intended to benefit Ms GAD and was willing to pay the estate that amount and take the balance no matter what that balance may have been. 1. Offers to "settle" the matter by allowing the estate $480,000 and allowing herself an amount of $30,000 for commission and professional fees.
The settlement amounts outlined in the preceding section were questioned during the hearing and Ms FYQ explained them, including with reference to the recent Supreme Court order, as set out below: 1. The unit sold for $565,000; 2. She had lent the estate approximately $40,000 as assessed by Mr W and was entitled to the repayment of that amount; 3. The Supreme Court awarded her $20,000 in commission; 4. The proceeds of the sale of the unit net of the loan and commission was $505,000; 5. She was willing to allow the estate $480,000; 6. There is a residual amount of $25,000 available to her as her claim for unjust enrichment.
In submissions on behalf of Ms GAD, Mr Restuccia opposes the application for Directions for reasons stated to the following effect: 1. The court has found that it is inappropriate to provide such advice or direction where the character of the proceedings is adversarial (Georgios Vasilios Sotiropoulos as executor of the estate of the late Maria Sotiropoulos v Vlasios Vasilios Sotiropoulos [2015] NSWSC 855 (1 July 2015); 2. The application is not pleaded or particularised; 3. It is unclear whether the direction sought relates to the exercise of a function under the power of attorney; 4. If the request is for directions relating to a claim for a benefit to be paid to Ms FYQ, the power of attorney specifically prohibits the paying of a benefit to an attorney; 5. If the request for directions relates to the unjust enrichment claim that is claim to be made against the principal; 6. The "unjust enrichment" claim is a quantum meriut claim and Mrs NZQ did not request that the work be undertaken. Even a request by a related party, which is denied, is insufficient as a basis for the claim; 7. An unjust enrichment or quantum meriut claim has not been pleaded and there has been no opportunity to plead a defence; 8. A quantum meriut claim should not be brought "under the guise of direction or advice"; 9. There is insufficient evidence to allow the Tribunal to quantify any such claim. Ms FYQ has not provided evidence of hours of work undertaken, the items of work undertaken or invoices and receipts for the work and has not provided statements for any money said to be loaned; 10. The work done to increase the value of the unit formed part of Ms FYQ's application for commission.
The Tribunal declines to make a direction for the following reasons: 1. The power of attorney is suspended during the operation of the financial management order. 2. In the absence of pleadings the Tribunal is not clear as to what directions Mrs NZQ is seeking. If it relates to the claim for equitable allowance or unjust enrichment, which comprise the matters dealt with in her letter of 1 March 2015 (with the exception of the matters already dealt with by the Supreme Court) then the Tribunal is satisfied that: 1. This is a matter that is contested between the parties and the Tribunal is of the view that it is not appropriate to resolve the matter by way direction, taking into account the reasoning of the court in the Sotiropoulos matter (above). 2. In her final submission Ms FYQ states that she is pressing her claim for equitable allowance or unjust enrichment. In that context the Tribunal is unclear what direction she seeks. 3. If Ms FYQ is seeking a direction about a quantum in respect of her claim, the Tribunal accepts the submission of Mr Restuccia that there are insufficient details to establish any quantum. 4. In any case, the Tribunal is not satisfied that the making of the claim for an equitable allowance or unjust enrichment falls within the "scope of the attorney's appointment or the exercise of any function by the attorney". 5. If a claim is to be made for an equitable allowance or unjust enrichment, the Tribunal is of the view that such a claim falls outside the scope of the Tribunal and should be considered by the appropriate court. 1. Ms FYQ does not provide any further information as to what directions she is seeking.
For the reasons set out in the preceding sub paragraphs, the Tribunal declines to make a direction under s 38 Powers of Attorney Act.

At a glance

Court

Decision date

Source

Judgment (45 paragraphs)

Legislation Cited (5)

Cases Cited (11)