YFT v YFV

Decision under appeal

1. This is an appeal against a decision of the Guardianship Division of the Tribunal made on 17 May 2023. The Appellant had requested the Tribunal review the financial management order it made on 22 September 2021. On 17 May 2023, the Tribunal confirmed the order made 22 September 2021. It is that review of the financial management order which is the decision the subject of this appeal.

Background

1. The Subject Person is 88 years old. She is of Egyptian heritage, lives in her own home and has Parkinson's dementia. The Subject Person has two sons, the Appellant and the Son. The Appellant is currently living with his mother and acting as her carer.
2. On 12 September 2019, the Subject Person signed an enduring power of attorney appointing both her sons as her joint attorneys. This form of appointment meant that the Appellant and the Son were only able to act and make decisions as attorneys together. The Appellant and the Son each signed the instrument on 12 September 2019. It operated and was effective from that date.
3. On the same day, the Subject Person executed an enduring guardianship instrument appointing the Son and the Appellant to act 'jointly' as her guardians.
4. On 8 April 2021 the Appellant lodged an application with the Tribunal for review of the enduring power of attorney instrument. The Tribunal joined the Ageing and Disability Commission (the ADC) as a party to the proceedings on 8 June 2021. Later still, the Appellant filed an application to review the enduring guardianship instrument. Both applications were heard on 16 August 2021 and determined on 22 September 2021.
5. In relation to the application to review the enduring guardianship instrument, the Tribunal decided to treat it as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order. The Tribunal made a guardianship order appointing the Public Guardian as guardian for a period of 12 months (the functions are not presently relevant). On 16 January 2023 the Tribunal reviewed the guardianship order and reappointed the Public Guardian for a further period of 12 months.
6. In relation to the application to review the enduring power of attorney made on 12 September 2019, the Tribunal decided to carry out a review of the operation and effect of the enduring power of attorney; decided not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW); and decided to treat the application for review of the enduring power of attorney as an application for a financial management order and appointed NSW Trustee and Guardian as financial manager.
7. On 1 November 2022 the Appellant filed an application to review or revoke the financial management order made 22 September 2021. The Appellant confirmed at the hearing on 17 May 2023 that his request was not that the financial management order be revoked but rather that he be appointed as sole private financial manager. The proceedings were adjourned on three occasions and heard by the Tribunal on 17 May 2023 - see [5] and [6] of the reasons for decision under appeal which we will abbreviate to "RFD [5] & [6]".
8. On 17 May 2023 the Tribunal reviewed the financial management order made 22 September 2021, and confirmed it.

Tribunal proceedings and decision

1. At the Tribunal hearing on 17 May 2023 the Appellant argued that he should become sole financial manager for his mother in place of NSW Trustee and Guardian. This would reduce fees and costs, avoid the sale of his mother's investment unit in Summer Hill which he said was an unwise decision, and he said he had a plan to meet his mother's expenses if that property were retained. He also said NSW Trustee and Guardian is not needed and it has been slow in decision making.
2. The NSW Trustee and Guardian neither supported nor opposed the Appellant's application.
3. The Son said he opposed the application to review the decision of 22 September 2021 saying the NSW Trustee and Guardian should be retained as financial manager.
4. In its decision of 17 May 2023, the Tribunal relevantly found that: 1. The Appellant should not be appointed financial manager for his mother because it would be inappropriate for him to hold that role while there is an outstanding investigation being undertaken by the Legal Department of the NSW Trustee and Guardian. The investigation relates to amounts of money possibly misappropriated from the Subject Person's bank account by one or both of her sons. 2. Further, the Tribunal was not satisfied that the Appellant had a satisfactory plan for the management of his mother's estate. 3. The welfare and interests of the Subject Person are better served by the NSW Trustee and Guardian remaining as financial manager.

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: NCAT Act, s 80(2).
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ("Prendergast") the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Guardianship Division are limited.
4. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
5. In P v NSW Trustee and Guardian [2015] NSWSC 579 at [191], Lindsay J indicated that five qualifications should apply to the comments of the Appeal Panel in Collins v Urban, in the context of an appeal from the Guardianship Division. Of those, only four are relevant in appeals to the Appeal Panel (rather than to the Court). Those four qualifications are: 1. There is a need to take s 4 of the Guardianship Act specifically into account, which was recognised in BPY v BZQ [2015] NSWCATAP 33 at [33]-[34]; 2. In deciding how to proceed in dealing with any challenge to a decision of the Guardianship Division, it is important to be mindful of a need, characteristic of the protective jurisdiction but reinforced by statute, to administer a protected estate without strife, in the simplest and least expensive way; with informality of procedure; and in a manner calculated to facilitate the just, quick and cheap resolution of the real issues in dispute; 3. Given the broad evaluative or discretionary content of most decisions made on an exercise of protective jurisdiction, guidance about what is or may be an error of principle may, in particular cases, be derived from House v The King; and 4. In reviewing an evaluative or discretionary decision of the Guardianship Division, it is necessary to make due allowance for the possibility that the Division's discretionary powers, in the exercise of protective jurisdiction, are unconfined except by the subject matter, scope and purpose of the Tribunal's jurisdiction.

Submissions and evidence

1. In deciding the appeal, we have had regard to the following:

• The Notice of Appeal lodged on 28 June 2023 and attached documents
• Email 17 July 2023 from the app and attached documents (Doc A1)
• Doc A2 was misfiled and appears as Doc R2 below
• Audio recording of hearing 17 May 2023 (1 hour and 5 minutes in length) and a video recording (2 mins 56 secs minutes in length); both on a single USB (part doc A3). The video material was irrelevant.
• Bundle of documents filed 9 August 2023 (part of doc A3)
• Bundle of documents filed 4 September 2023 (doc A4) - Pages 14 and 15 of this bundle we took to be the Appellant's submissions for the appeal
• Bundle of documents filed 11 October 2023 (doc A5) including a copy of the reasons for decision of the Tribunal under appeal
• Two emails from the Son dated 18 July 2023 (doc R2)
• Copy original application to review or revoke a financial manager dated 1 November 2022

1. We did not have a formal Reply to the appeal from any party.
2. Although we had a copy of the sound recording, we did not have a transcript of the sound recording.
3. On 19 July 2023, an application for a stay of the decision under appeal was dismissed.
4. Some of the materials listed above were not before the Tribunal on 17 May 2023. An exhaustive identification of new material is not warranted as it is sufficient to say that there was no formal submission seeking to rely on new material, we did not discern any material which might be the subject of a successful application, and were careful in our deliberations and reasons not to rely on any new material.

Notice of Appeal

1. The Notice of Appeal was lodged on 28 June 2023, which is within 28-day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) because notice of the decision was received on 1 June 2023.

Grounds of Appeal

1. The notice of appeal did not identify grounds in the traditional sense. Rather it provided commentary on the reasons for the Tribunal's decision below, which we examined for allegations of appealable error.
2. In cases involving a self-represented litigant who cannot clearly articulate grounds of appeal and distinguish between questions of law and errors of fact in relation to which leave to appeal is required, it is appropriate for the Appeal Panel to consider the material provided on the appeal to identify the grounds of appeal (Prendergast at [12]).
3. We should attempt to ensure that we understand the grounds of appeal from the Appellant's material and submissions, in accordance with previous decisions of the Appeal Panel in matters such as Cominos v Di Rico [2016] NSWCATAP 5. Given that the decision which is the subject of the appeal was made in the context of the Subject Person's welfare and interests being paramount, we are satisfied that we should adopt a liberal approach to this task. There is, however, a proper limit to be set on this process, as expressed by Flick J in SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [30] in that: "… it is no part of the function of this Court [here the Appeal Panel] to review the reasons for decision of a primary judge, draft what may be arguable Grounds of Appeal and then proceed to resolve those Grounds. … For the Court to itself draft its own Grounds of Appeal and then resolve those Grounds is, with respect, a step too far."
4. Acting in a way which is just, quick and cheap, with a view to keeping the welfare and interests of the Subject Person paramount, and doing the best we can with the material before us and the oral submissions of the Appellant, we identified four grounds of appeal.
5. It is sufficient, in our view, to note that a thorough review of the Notice of Appeal, the material filed by the Appellant with it and the Appellant's submissions both written and made orally at the hearing take the allegation of error by the Tribunal no further than the grounds we set out below.
6. There was no application for leave but adopting a liberal approach, as discussed, we did not discern any material which might form the basis for a successful application for leave (see further below).

First ground of appeal - Wrong findings

1. The Appellant's submissions at page 14 challenged the final sentence of RFD [30] "I find that the proposal by [the Appellant] is complex and contingent on various loans made by him…".
2. Essentially, the Appellant says that the Tribunal made the wrong findings. The Appellant says in effect that this can be characterised as an error of law on the basis that 1. there was no evidence or incorrect evidence to support the finding (Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32) or 2. that the findings were so unreasonable that no reasonable decision maker could have made them (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223).
3. To understand the Appellant submission is necessary to set out RFD [30] in its entirety because the complained of sentence is in fact a conclusion from several factual findings preceding it. RFD [30] is as follows: "[30] Overall, having considered [the Appellant]'s evidence, I am not satisfied that he has a fully accounted and satisfactory plan for the management of his mother's ongoing financial needs. I accept the uncontested evidence of the NSW Trustee and Guardian that [the Subject Person] is accumulating ongoing debts because she has no income in her estate. As a result of the ownership of the Summer Hill property [the Subject Person]'s pension has been ceased. She is incurring strata fees, Energy Australia fees, water fees and other fees which are not being paid due to the lack of funds and income in the estate. [the Subject Person]'s current expenses exceed $20,000. I accept the submissions that were made by [the Son] that even if one was to assume the two year financial plan as set out by [the Appellant] was suitable there would not be enough funds to repay current debts, future increasing debts and other amounts for the following reasons. [the Son] said that the ability for his mother to access a home equity access scheme payment is unlikely to be approved. In any event, it would require Mr [the Appellant] to repay payments to that lender which in [the Son]'s view his brother would not have funds to pay for given he is on a Disability Support Pension of about $20,000 per year. The proposal also relies upon [The Appellant] loaning his mother other money to meet her day to day expenses. I place more reliability on [the Son]'s evidence in this regard. I find that the proposal by [the Appellant] is complex and contingent on various loans being made by him to his mother to fund her care and also an as yet to be determined application for equity access scheme payment."
4. The Appellant's criticism of the concluding sentence took several forms and presenting them logically they were: 1. The Appellant's plan was not complex - nobody lives without debt in the real world and the plan to sell a $900,000 asset to pay $30,000 in debts is not logical. 2. He has been supporting his mother for the last four years has and has spent almost $40,000 of his own money on her care and needs - an indication, we infer, of his commitment to his mother and his willingness to spend his own money on her welfare. He said that he does not seek to recover that money from his mother. 3. Expenses could be paid by instalments. 4. Any sale of the property would incur significant fees. 5. A reverse mortgage or home equities loan scheme could provide up to $40,000 per year. 6. The NSW Trustee and Guardian only want to sell the property to make fees for themselves. 7. The conclusion is based at least in part upon incorrect information. The Appellant says that the combination of his carer's payment and carer's allowance means his income is currently about $39,000 per annum. This amount, he says, would be sufficient to meet the needs of he and his mother and the two properties. The Appellant was particularly critical of the fact that the reasons record that he receives a disability support pension (DSP) with an income of about $20,000 per annum as opposed to the reality of him being on a carer's payment and carer's allowance with an income of about $39,000 per year. 8. His brother's opinion should not have been accepted and there was no basis for it.
5. Items (1) to (6) are challenges to factual matters that are more properly the subject of an application for leave - see below.
6. As to item (7), it is an allegation of a legal error in that there was no evidence or incorrect evidence to support the finding.
7. If there was to be an allegation in the appeal that there was no evidence for a particular point (as in the allegation regarding the disability support pension), we would have expected the Appellant to provide us with a transcript to prove that there was no evidence for the particular finding.
8. Directions for preparations for this appeal were made on 12 July 2023 and that included the following "2 The Appellant is to lodge with the Appeal Registry and give to the Respondent by 09 August 2023: (1) All the evidence given to the Tribunal at first instance on which it is intended to rely; (2) Any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely; (3) The Appellant's written submissions in support of the appeal; and (4) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing."
9. At the appeal hearing the Appellant acknowledged the direction regarding the transcript and that no transcript had been provided. The Appellant did provide a USB stick with the sound recording but the submissions were limited to only two time stop measurements and nothing was recorded for our attention in relation to this ground of appeal.
10. Even if we accepted a factual error in relation to the issue of the DSP, we would not find a legal error in any event because the receipt of DSP (or some other benefit) was not central to the reasoning. Absent such error, there was no realistic possibility that the decision might have been different (KEPCO Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc [2021] NSWCA 216 per Basten and Payne JJA at [8]).
11. If we accept that the Appellant's circumstances are as he asserts, namely he is in receipt not of a DSP, but a carer's payment and carer's allowance at an annual rate higher than that stated in the reasons, these matters appear to us to be of a minor nature compared to the main aspects of the reasons for rejecting the Appellants financial plan for his mother's estate.
12. The finding at [30] was that the Appellant's plan was not satisfactory. The reasons included that the Subject Person's estate had no form of income. Even if the Summer Hill property were leased and rent became a source of income, the rent was still insufficient to meet the outgoings. According to the Appellant's plan, it would have been necessary for the estate to borrow either from the Appellant or from some more formal kind of loan arrangement (through a reverse mortgage or home equity access scheme), just to fund her essential ongoing care. When an asset is available for sale, it is difficult to justify that further debt was in the best interests of the principal. Against that reasoning, whether the Appellant had an income of $20,000 per annum of $39,000 per annum is of little consequence.
13. As to item (8) - The Tribunal accepted the Son's opinion that accepting the suitability of the Appellant's plan, there would not be enough funds to pay present and future debts. The Appellant complains of this as a wrong finding.
14. We can discern no error when the Tribunal preferred the opinion of the Son. The reasons show that finding was open to it - indeed the text of [30] above shows the Tribunal explained in detail why it accepted it: 1. Access to further debt facility was yet to be approved. 2. The Appellants ability to repay debt was limited by his Centrelink income. 3. The proposal relied on further loans from the Appellant or a finance institution.
15. We find acceptance of the Son's opinion was clearly open to the Tribunal and no relevant error occurred in doing so.
16. Nothing said in the appeal (including the minor criticisms referred to) has persuaded us that the Tribunal fell into relevant error. Ground 1 fails.

Second ground of appeal - Investigation

1. The Appellant complains about that part of the decision that he should not be appointed financial manager because the ongoing investigation by the NSW Trustee and Guardian. He says at Page 14 of doc A4 of his submissions - "there was no evidence or any court orders served to me. It is just delays. These allegations are not substantial and admissible and should not be taken in consideration."
2. The Appellant appears to be arguing that the finding about the investigation is an error of law because there was no evidence for the finding. The Appellant's written submissions also referred us to a timestamp in the voice recording (mins 23.20) of the 17 May 2023 hearing.
3. In oral submissions, the Appellant said that NSW Trustee and Guardian are "liars". The Appellant says that the 17 May 2023 hearing was the first time the issue of an investigation was raised. He said that the allegation of misappropriation and the issue of the investigation was "just thrown in" at the hearing and it is "all just a lie". He says there is no concrete investigation in place at all, and it was raised to defeat his application to be financial manager and to ensure that NSW Trustee and Guardian can charge fees against his mother's estate. The Appellant says that he has never been asked to formally respond to allegations of misappropriation.
4. The actual findings appear at RFD [24] and [25] which state: "[24] Of primary concern which led to my decision not to accede to [the Appellant]'s proposal that he be appointed as the financial manager is that there is an outstanding investigation being undertaken by the Legal Department of the NSW Trustee and Guardian. That investigation relates to amounts of money possibly misappropriated from [the Subject Person]'s bank accounts by one or both of her sons. [the Appellant] and [the Son] said that they have documents, receipts and accounts to explain any withdrawals of money from [the Subject Person]'s accounts prior to the financial management order being made. [25] Importantly, [the Appellant] said that he acknowledged he had withdrawn money from his mother's accounts for payment of services and medical and other expenses. He said he has bank accounts, invoices and receipts to prove all of this. The difficulty for me is that until the NSW Trustee and Guardian has completed this investigation, I am not satisfied that [the Appellant] could be considered as a private financial manager for his mother's estate. His appointment would effectively bring that investigation to an end and there would be no decision made with respect to whether any misappropriation of funds had occurred by him or [the Son]. For this reason alone it is inappropriate and not in the best interests of [the Subject Person] to protect her financial estate that [the Appellant] be appointed as her financial manager until the conclusion of that investigation."
5. We do not accept the Appellant's submissions and reject the assertion that there was no evidence of an investigation. The voice recording at 23.20 confirms the representative of NSW Trustee and Guardian telling the Tribunal about the investigation. She also said it had been outlined in the NSW Trustee and Guardian report provided to the Tribunal. In accordance the principles of natural justice, the Tribunal sought the Appellant's response, saying it might be an impediment to his appointment as financial manager (at 24.20). The Appellant's response was that NSW Trustee and Guardian were lying as to whether he had misappropriated his mother's money and alleging his brother had done so. The Appellant's response was not that an investigation did not exist and NSW Trustee and Guardian were lying about it, it was that misappropriation by him did not occur.
6. Further, it is clear from previous reasons of the Tribunal that 17 May 2023 was not the first time the issue of an investigation into allegations of misappropriation by one brother against the brother have been aired and considered by the Tribunal.
7. Some background is necessary to understand why we have formed that view.
8. Originally, the Subject Person's estate was managed pursuant to an enduring power of attorney she signed in favour of her sons jointly. That was dated 12 September 2019.
9. On 8 April 2021, the Appellant filed an application in the Tribunal seeking to review the enduring power of attorney and seeking that he be appointed sole financial manager. That review was heard on 16 August 2021 and determined on 22 September 2021. In summary, the Tribunal heard allegations of mismanagement by each brother against the other and determined that it was in the best interests of the Subject Person that an independent financial manager (NSW Trustee and Guardian) be appointed to avoid the family conflict. That would also better reflect the wishes of the principal than appointing one son as sole financial manager. After recording the allegations by each brother against the other and the apparent mismanagement of the Subject Person's estate by the attorneys, the Tribunal said at [78] to [80] of its reasons: "[78] It is not necessary for present purposes to make findings as to whether either brother in fact gained such a benefit or failed to meet the obligations they each accepted when they signed the enduring power of attorney. These are matters that would need further evidence and investigation. However, on their own evidence, we could not be satisfied that either of [the Appellant] or [the Son] was able to manage their mother's finances in her best interests, either individually or jointly. It was very clear they could not co-operate and consult in this regard. It seemed at times as though they had each been motivated by antipathy and mistrust of the other, rather than by their mother's best interests. [79] Given the allegations made by both brothers and the failure of either brother to take any meaningful action in relation to renting their mother's vacant investment property and their inability to work together or to resolve disputes (such as in relation to ownership and use of the Lexus), we were of the view that it would not be in her best interests to remove one of the attorneys from office, leaving the other in place. Her wishes in 2019, when she had capacity, were to the contrary. To the extent she expresses the view now that she wants [the Appellant] to look after her and to look after her money (as she told the ADC and also told us), this is to be seen in light of her cognitive impairment, her admission to ADC that she had not had access to her bank statements in over 12 months and did not know how her bills were being paid and her apparent lack of awareness about the admitted actions taken by her sons. [80] We were of the view that, given the significant level of dispute between the attorneys and the serious allegations about misuse or mismanagement of [the Subject Person]'s assets and income, the appointment of a financial manager with the limitations and oversight that would flow from this and with the ability to pursue allegations of the sort that each of the brothers has made about the other in relation to their mother's finances, would be in her best interests. Indeed, provided that it was of an impartial third party, such appointment may remove a source of tension between the brothers and thus go some way towards preserving, or even re-establishing, [the Subject Person]'s family relationships. She needs the love and attention of both her sons. While they each appeared to think that they were acting to safeguard her funds, they have not acted jointly as provided for in the power of attorney. We could not be satisfied that at this time either of them is able to manage their mother's finances in her best interests. We decided that it was appropriate in all the circumstances to treat the application for the review as an application for a financial management order and that this would be most likely to promote [the Subject Person]'s welfare and interests consistent with s 4 of the Guardianship Act."
10. It is readily apparent that there were prior allegations by each brother and a significant level of suspicion of misappropriation such that an investigation was quite likely, even inevitable. We do not accept the Appellant's submissions that the investigation was a matter of recent invention. We are satisfied there was evidence that NSW Trustee and Guardian had an active investigation underway, upon which the Tribunal could make this finding.
11. This ground of appeal fails.

Third ground of appeal - Bias

1. On page 14 of the Appellant's submissions, it is submitted to us that the Tribunal member was biased because he accepted the following statement from RFD [15]: "NSW&TG has the expertise and experience in managing estates. Its impeccable reputation and the security provided to an estate against loss or demands."
2. First, we note the submission is not an exact quote from RFD [15].
3. The Appellant says this statement is wrong and is far from the truth. He says the NSW Trustee and Guardian has been taken to the Supreme Court by hundreds of clients and families for mismanagement and abuse. He says the internet is "infested" with stories of mismanagement by the NSW Trustee and Guardian and as a result the member should not have accepted that statement. The Appellant went as far as to allege that NSW Trustee and Guardian is "evil" and did not have a good reputation.
4. We do not accept that submission because it is clear from the Tribunal reasons that the statement complained of was not a finding of the Tribunal but a quote from a leading authority. We set out below RFD [14] and [15]: "[14] In Holt & Anor v Protective Commission (1993) 31 NSWLR 227, the Supreme 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 appointed as the financial manager, and 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. [15] The Court of Appeal acknowledged the manifest independence of the Protective Commissioner and the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person. It also recognised the Protective Commissioner's expertise and experience in managing estates, its impeccable reputation and the security provided to an estate against loss or damage. The same can be said of the NSW Trustee and Guardian."
5. We are satisfied that the Tribunal was not expressing a view but quoting from a leading authority. In any event, the view stated is open to the Tribunal and it was entitled to accept it. We can discern no error of law. This ground of appeal fails.

Fourth ground of appeal - does not concede sale of property

1. The substance of this complaint is to be found at RFD [31], which is as follows: "[31] I placed reliance on [the Appellant's] evidence that he said at some stage in the future his mother's Summer Hill property will likely need to be sold to meet her ongoing care."
2. The Appellant submits that he never conceded the property would have to be sold. The Tribunal was incorrect in attributing that statement to him. He submits the Tribunal has relied on his concession on an important issue, namely, whether his alternate plan for his mother's finances should be accepted.
3. The primary question is whether the concession was made at all. We are unable to determine that question as we were not provided with a transcript of the evidence before the Tribunal. We asked the Appellant whether he was aware of the directions for preparations for this appeal made on 12 July 2023 (set out above).
4. The Appellant told us he was aware that directions for the filing of materials for the appeal had been made but said he must have misread them. We were provided with a sound recording but we were only referred to two-time stamped issues, the first in relation to the investigation by NSW Trustee and Guardian and the second in relation to the acceptance of the Son's opinion.
5. Accordingly, we do not have the necessary materials to consider this ground of appeal. It is rejected.
6. Even if we did form the view that this concession had not been made by the Appellant, and that the Tribunal made a factual error, we would not consider the error to be sufficient to establish an error of law because reliance on the concession was not, in our view, determinative, of the issue.
7. RFD [30] is set out in full at [42] of these reasons. To that we would add RFD [31] and [32] which say in full: "[31] I placed reliance on [the Appellant]'s evidence that he said at some stage in the future his mother's Summer Hill property will likely need to be sold to meet her ongoing care. It is at this stage when her care fees cannot be paid that the home would be sold. I put to [the Appellant] that this situation has arisen and asked him why the appropriateness of selling the home should not proceed as decided by the NSW Trustee and Guardian. [The Appellant] then reiterated his opening that in this market the property should not be sold and it is not in his mother's financial interests to do so. I am not satisfied based on the evidence before me that those submissions should be accepted. [32] It is evident to me that [the Subject Person]'s estate is at risk. This is because she is not receiving any income and there is a possibility that the Summer Hill property could be sold to fund her ongoing care and support, whether that be in her own home or in an aged care facility. [the Appellant] has been able to provide care for his mother at home which is supported by a number of health care professionals and the evidence. This was not in dispute in this hearing. However, I am not satisfied that the proposal as set out by [the Appellant] under the heading 'Two year plan' is sound and would meet the obligations of [the Subject Person]'s estate without risk to her."
8. The issue under consideration was a review of the financial management order. The Appellant had limited that to the question whether he should replace the existing manager. Intrinsic to consideration of that issue was whether he had a satisfactory plan for the management of his mother's ongoing financial needs.
9. A fair reading of the reasons as a whole and RFD [30] to [32] in particular is that the Tribunal decided the estate was at risk and the Appellant did not have a satisfactory plan. The alleged mistake about whether he conceded the property might have to be sold at some time in the future was, in our view, not essential to the consideration of his plan for the present and near future. It only went to the enquiry recorded at RFD [31] and summarised as "if it might be sold in the future, then why can't it be sold now?" That question was answered but the answer was not, in our opinion, determinative of the essential question being considered - did he have a satisfactory plan?
10. The real issue can be simply stated and all parties agreed these to be the facts. The Subject Person's estate had no income and had accumulated debts for two properties and for the Subject Person's day to day care and support needs. Even if one of the properties (Summer Hill) were rented, the income would be insufficient to pay down the debts and meet the day to day needs of the Subject Person, without accumulating further debts. It was proposed by the Appellant that those further debts be met by him informally or by a formal loan from a home equity access scheme.
11. The finding of the Tribunal that the estate was at risk and that the Appellant's plan was "...not fully accounted and satisfactory..." is hardly surprising and well justified, in our respectful opinion. The eventual sale of Summer Hill (or not) is not determinative of the reasoning that the plan was unsatisfactory.

Leave to Appeal - factual matters

1. The Appellant did not ask for leave to appeal but to fully consider the appeal and given that the Appellant was unrepresented, we examine whether any of the matters raised by the Appellant (and outlined above) might form the basis for us to grant leave to appeal.
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Guardianship Division are set out above in [26] and [27].
3. Nothing said in the Appellant's written submissions persuade us that this matter raises an issue of principle, a question of public importance, an injustice which is reasonably clear, a factual finding unreasonably arrived at, or that any unorthodox fact finding occurred.
4. Even allowing for the possibility of a more liberal interpretation of the limitations of granting leave to appeal in Collins v Urban as a result of the qualifications discussed by Lindsay J in P v NSW Trustee and Guardian, we still cannot discern any valid grounds for leave to appeal.
5. Leave to appeal is refused.

Orders 1. Appeal dismissed. 2. Leave to appeal refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2023