YHE v YHF

Statutory framework

1. The power to make a financial management order is contained in Pt 3A of the Guardianship Act 1987 (NSW).
2. Contained in Division 1 (Making of financial management orders) of Part 3A (financial management orders), s 25E(1) of the Guardianship Act states that the Tribunal may order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009 (NSW). The Tribunal may exclude a specified part of the estate from the financial management order: Guardianship Act, s 25E(2).
3. The Tribunal may make a financial management order in respect of a person if, after considering the person's capability to manage his or her own affairs, the Tribunal is satisfied that the person is not capable of managing their affairs; that there is a need for another person to manage those affairs on the person's behalf; and it is in the person's best interests that the order be made: Guardianship Act, s 25G.
4. Where the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a "protected person", the Tribunal may appoint a suitable person as manager of the estate or commit the management of that estate to the NSW Trustee: Guardianship Act, s 25M. A protected person is defined to mean a person whose estate (or part of whose estate), is subject to a financial management order: Guardianship Act, s 25D.
5. Contained in Division 3 (Review of appointment of manager) of Part 3A, s 25S(1)(b)(i) of the Guardianship Act states that at the request of the NSW Trustee the Tribunal must review its appointment of the manager of a protected person's estate. Section 25U of the Guardianship Act sets out the powers available to the Tribunal on reviewing its appointment of the manager of a protected person's estate: 25U Action on review (1) On reviewing its appointment of the manager of a protected person's estate, the Tribunal may - (a) revoke the appointment, or (b) confirm the appointment. (2) The Tribunal may also review the financial management order under which the manager was appointed, and may take any action in respect of that order that it may take on a review of such an order under Division 2. (3) If the relevant financial management order is not revoked under subsection (2), the Tribunal is to appoint another person as manager of the estate subject to the order in substitution for a person whose appointment as manager has been revoked under this section. (4) The Tribunal may revoke the appointment under review only if - (a) the person appointed seeks the revocation, or (b) the Tribunal is satisfied that it is in the best interests of the protected person that the appointment be revoked, or (c) the financial management order in respect of the estate concerned is revoked. …
6. Contained in Division 2 (Review and revocation of financial management orders) of Part 3A, s 25R(c) of the Guardianship Act entitles the manager of the estate of a protected person to apply for an order revoking or reviewing a financial management order. Subject to an exception which is not relevant to this appeal, where an application is made under s 25R, the Tribunal must review the financial management order: Guardianship Act, s 25N(4).
7. Section 4 imposes a duty on the Tribunal when exercising functions under the Guardianship Act to observe the principles in s 4 of that Act: 4 General Principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.

Background to the appeal

1. The following facts are taken principally from the decision under appeal and the decisions made by a differently constituted Tribunal in September 2022 to make guardianship and financial management orders in respect of the Father.

Tribunal makes guardianship and financial management orders

1. In May 2022, the Son made applications to NCAT requesting the Tribunal to make financial management and guardianship orders in respect of the Father. In those applications, the Son proposed that he be appointed as the Father's guardian and manager.
2. The Son explained that the Father is the owner of intellectual property and a director of companies and is no longer able to attend to those matters due to declining cognition. The Son said that a guardianship order was needed because the Father declined to receive care and support from external providers. The Son said that if the Father's cognition continues to decline, he may need to move from his home which he is likely to resist.
3. In a report dated 7 April 2022, geriatrician, Dr Marcia Rodov, said that following a cognitive assessment she made a diagnosis of "moderate dementia". In her opinion, the Father "lacked insight into the level of care he needs". In Reasons for Decision, YHF, NCAT, (Senior Member D Jay, Senior Member C M Kennedy, General Member S Fogg, 6 September 2022, unrep) (the 2022 Reasons), the Tribunal said that it accepted Dr Rodov's opinion and noted at [9], that the Father's condition appeared to have deteriorated further since he was assessed by Dr Rodov six months earlier. The Tribunal observed that the evidence the Father gave at the hearing was "largely incoherent".
4. The Tribunal found that the Father "has a disability which prevents him making important life decisions" and that the discretion to make a guardianship order could be exercised: 2022 Reasons at [10]. At [15] the Tribunal said the Father "is in need of a guardian" because: "[15] [The Father] has experienced significant cognitive decline in the past 12 months and demonstrates dangerous behaviour including fires at home, wandering and refusing assistance of service providers. There is a real likelihood that he will require full time care in the next 12 months and may not consent to that change."
5. The Tribunal made a guardianship order in respect of the Father for a period of 12 months and gave the guardian power to make decisions about the Father's accommodation and services and to authorise the Ambulance Service of NSW and others to take and to keep the Father to a place approved by the guardian.
6. The Tribunal decided to appoint the Son as guardian and found at [26]: "[26] [The Son] demonstrated a deep affection for his father and a willingness to act as the guardian. [The Father] welcomed his assistance. No conflict of interest was identified that would prevent his appointment."
7. The Tribunal went on to consider whether to make a financial management order in respect of the Father. Under the heading, "Is [the Father] incapable of managing his affairs?", the Tribunal noted: 1. the Father owns his own home, receives a modest Russian pension and has approximately $260,000 in superannuation and $300,000 in savings; 2. the Son contended that a financial manager is needed to ensure that the Father's accounts are paid, forms are lodged with Australian Securities and Investments Commission and company fees are paid; 3. the Son's attempts to assist the Father informally had failed and service providers had refused to re-direct the Father's bills and accounts to the Son's address.
8. At [32], the Tribunal found that the Father requires a financial manager "to attend to his complex intellectual property interests as well as to pay day to day expenses". The Tribunal made a financial management order in respect of the Father. The Tribunal found the Son to be a "suitable person" and appointed him manager of the Father's estate.

Tribunal reviews 2022 Guardianship Order

1. On 6 September 2023, after conducting an end-of-term review of the 2022 Guardianship Order as required by s 25(2)(b) of the Guardianship Act, the Tribunal decided to exercise the power to permit that order to lapse.
2. In reasons for that decision, NCAT, (Senior Member J D'Arcy, 6 September 2023, unrep) (the 2023 Reasons), at [16], the Tribunal noted that the Son reported that the Father's circumstances have changed since the guardianship order was made 12 months earlier. The Son was now living and caring for the Father "with the intention of caring for him at home for as long as possible, in keeping with his Russian tradition". The Son reported that the Father was about to receive three hours' care each week from an external care provider. In addition, the Father had been approved to receive additional care under an overseas funded program.
3. At [17], the Tribunal found the Son to be "a very attentive carer displaying patience and empathy towards his father's health care needs and well-being". At [18], the Tribunal recorded the comment made by a medical practitioner that the Son was "undeniably contributing to maintaining [the Father's] overall well-being and quality of life and fostering an environment conducive to his father's physical and emotional welfare". In addition, the Tribunal referred to other favourable reports about the Son's "positive impact" on the Father's lifestyle.
4. At [20], the Tribunal found that the Father no longer resisted receiving care services at home and, as "person responsible" (Guardianship Act, s 33A), the Son was able to deal with the Father's treating medical practitioners. At [21]-[22], the Tribunal found that decisions concerning the Father's personal affairs could now be made informally and ordered that the Guardianship Order was to lapse.

NSW Trustee and the Son apply to NCAT for review of the 2022 FMO

1. On 11 October 2022, the NSW Trustee made an application to NCAT requesting the Tribunal to review the 2022 FMO. In that application, the Trustee claimed that the Son had purchased a property using the Father's funds and that the Father's funds "may be at risk".
2. On 13 May 2023, the Son made an application to NCAT and requested that the 2022 FMO be revoked.
3. The Tribunal conducted the reviews requested by the NSW Trustee and the Son at the hearing on 6 September 2023 where the end-of term review of the Guardianship Order was conducted.

Application by the Son requesting review of the 2022 FMO

1. In the application requesting review of the 2022 FMO, the Son said that it was in the Father's best interests for that order to be revoked because he is the Father's only child and sole carer. The Son said that he has had "no luck in obtaining governmental assistance to help with my father's condition and in the absence of having free access to the families' assets it makes it extremely difficult to plan for my father's future needs". He said he wanted to delay for as long as possible the Father moving into residential aged care, a "fate worse than death".
2. The Son said that it "is part of Russian culture" that the family looks after elderly family members at home. He said he had the luxury of being able to work from home and to keep a close eye on the Father. The Son said that revoking the 2022 FMO would "help better allocate family assets which would relieve financial stress, give me the ability to work less when needed and plan on how my father's future living arrangements will be managed".
3. Under the heading, "How will the person's finances be looked after if the financial management order is revoked?", the Son said that he proposed to look after the Father's finances with the assistance of the family accountant. The Son went on to outline his plan for managing the Father's finances and the basis for his opinion that it would be in the Father's best interests to revoke the 2022 FMO. The Son explained that under the proposed plan, a "large proportion of the capital" would be moved into a "family property that is under my name" (the Randwick property), leaving a small loan of $100,000 on that property. The rental income generated by that Randwick property would be deposited into the Father's bank account and used to fund the Father's living expenses. In due course, his Father would move to the Randwick property and respite care would be trialled. When the Father was in respite, the second bedroom in the Randwick property would be placed on Airbnb and the income generated used to fund the Father's care. In addition, the Father's property would be rented out to generate additional income. The Son estimated that the combined rental income from both properties after expenses would be around $1,500 a week. If the Father were to move into residential aged care, the rental income from both properties would be sufficient to fund a daily accommodation payment and with money left over.
4. The Son said that the only foreseeable risk under that plan was if he were to die and the Randwick property being in his name "could cause problems with accessing funds associated with this property". He said that a "legal agreement … could solve this dilemma". However, if he died, on hearing that news the Father would be likely to pass away: "I mean the world to him." The Son said that if, hypothetically, he "attempted to exploit the situation", the Father would still have his home valued at about $900,0000 which could be sold and "put towards a nursing home". He reasoned that it would not be in his interests to "exploit the situation" because, being the only child, this would mean he would lose his inheritance.

Tribunal declines to revoke the 2022 FMO

1. At [24] of the 2023 Reasons, the Tribunal correctly stated that the power to revoke the 2022 FMO could only be exercised if it is satisfied that the Father is capable of managing his affairs or it considers that it is in the Father's best interests that that order be revoked. At [25], the Tribunal noted that there is no evidence that the Father had regained the capability to manage his financial affairs and proceeded to consider whether it was in the Father's best interests to revoke the 2022 FMO.
2. At [26]-[28], the Tribunal summarised the plan developed by the Son, referred to above, to manage the Father's finances.
3. At [29], the Tribunal set out the explanation given by the Son for the closure of the Father's superannuation fund. The Son said that on 15 February 2023 the family accountant visited the Father at home and explained "the situation". The Father then signed forms authorising the closure of the fund and the transfer of the balance of about $240,000 to a mortgage offset account on the Randwick property. The Son said he did not inform the accountant about the 2022 FMO and could not offer an explanation for failing to do so. The Son said: "I needed to do something and not sit on my hands and do nothing".
4. At [30], the Tribunal noted that in a recent email to the Trustee, in answer to a question about his failure to seek the Trustee's approval for transferring the Father's superannuation funds to the Randwick property, the Son replied: "Lack of time and lack of understanding of the process. How do you sign people up to legislation without explaining anything?"
5. At [32] the Tribunal set out the Son's view that a financial management order was no longer required for the Father: "[32] [The Son] only brought the application for the appointment of a financial manager because he was having difficulty dealing with his father's utility bills. He could now manage all of his father's finances informally because he is a co-signatory on his father's bank accounts, he is able to manage the companies and he is a good, honest and responsible son."
6. Referring to the discussion between the Tribunal and the Son about the 2022 FMO, the Tribunal observed at [33]: "[33] [The Father] was not engaged in this conversation. Despite the assistance of the interpreter, he did not appear to understand the discussion, consistent with the findings by Dr Thi Yen Hill, Cognitive Disorders Clinic, Prince of Wales Hospital on 2 February 2023 who found that [the Father] was confused in discussing his finances. He further stated that [the Father] remains incapacitated to manage his finances."
7. The Tribunal found that there was a continued need for a financial management order to ensure that the Father's finances were not being used for any purpose other than to cover his own expenses and that it was not in the Father's best interests to revoke the 2022 FMO. The Tribunal reasoned at [34]-[39]: "[34] [The Son] arranged for his father to close his managed superannuation fund and transfer those funds to [the Father]'s savings account in an unusual manner given that he had been appointed as his father's financial manager only three months before the closure of the superannuation fund and the transfer of funds to his account. He did not advise the family accountant of the financial management order, nor did he advise her of his father's cognitive problems. Consequently his father signed the forms to close the superannuation fund and then transferred those funds to [the Son]. It appears that as [the Father] had signed the forms, [the Son] took the view that there was no need to seek approval from or advise the Trustee, thus circumventing the authority of the Trustee. [35] After his appointment as private financial manager [the Son] had been provided with a copy of the Private Manager's Handbook which clearly outlines the duties and responsibilities of a private financial manager. He was provided with all of the information for him to understand that such a significant decision and transaction required the Trustee's approval. He did not seek that approval through his own negligence and lack of due diligence in failing to acquaint himself with his responsibilities. [36] Rather than depositing the funds in an account in [the Father's] name, [the Son] transferred $240,000 of his father's superannuation to the mortgage offset account for his [Randwick property]. There was no direct benefit to [the Father] in making this transfer. It had the effect of reducing the mortgage payments payable by [the Son] and increasing his equity in the property. [37] If the funds had been transferred to an account in [the Father's] name he would have been able to access those funds which would have adequately covered his expenses. Sale of his home would also provide funds for a refundable accommodation deposit when necessary. [38] [The Son's] actions appear to have been motivated by his desire to reduce his own financial pressures, and, as stated in his financial proposals referred to above, to maintain the [Father's] property for his inheritance. [39] In these circumstances, the Tribunal decided that there was a need for a financial management order to ensure that [the Father's] finances are not being used for any other purposes than to cover his own expenses. It is not in [the Father's] best interests to revoke the financial management order."

Tribunal decides to revoke the Son's appointment as manager

1. Having decided not to revoke the 2022 FMO, the Tribunal went on to consider whether to revoke the Son's appointment as manager as requested by the NSW Trustee.
2. At [41], the Tribunal correctly stated that the power to revoke the Son's appointment could only be exercised if the manager seeks the revocation or the Tribunal is satisfied that it is in the Father's best interests that the appointment be revoked.
3. At [44]-[50], the Tribunal explained its reasons for concluding that it is in the Father's best interests that the Son's appointment be revoked: "[44] [The Son's] actions indicate that he does not understand the duties of a private financial manager. He does not appear to understand that he cannot intermingle his father's funds with his own and that he cannot use his father's funds to his own financial advantage. In his submission [the Son] explained the transfer of the amount of $240,000 in the following terms: 'To offset my home loan, to provide financial relief for the family, to compensate some of my time invested into caring for dad, to be able to work less and/or stress less about work, to provide more care to my father, to provide more income for the family……' [45] The reasons for the transfer indicate that it was made to primarily benefit [the Son] by reducing his home loan and thus his mortgage repayments, to compensate him for caring for his father and to allow him to work less. [the Son] is in a fiduciary relationship with his father and must put his father's interests before his own. However, [the Son's] reasons for transferring the funds indicate that he is putting his own needs and interests before those of his father. [46] It is difficult to understand why, when [the Son] had brought the application to the Tribunal for the appointment of a financial manager citing his father's lack of capacity, that he had failed to advise the accountant of the order, allowing his father to sign the document closing the superannuation managed fund and transfer the funds to his account. At best this action points to his lack of understanding of the role, or, at worst, deceptive conduct so that he did not have to seek approval from the Trustee, which he knew would be denied if he revealed that the fund proceeds would be transferred to his mortgage offset account. [47] [The Son] indicated in the hearing that he finds dealing with the Trustee stressful, time-consuming and difficult given that he is caring for his father and also attempting to work. He did not lodge the Private Manager's Plan in a timely manner and the first set of accounts are yet to be passed because of the difficulties he has encountered in providing the relevant information to the Trustee. In an email to the Guardianship Division on 20 June 2023 [the Son] stated that he had limited time to deal with tasks other than caring for his father and his employment responsibilities. The stress that [the Son] is currently experiencing in caring for his father and dealing with the Trustee was referred to in the recent report dated 3 August 2023 by Dr Thi Yen Hill. [48] The Tribunal acknowledges the stress, time and effort involved in caring for an elderly parent with dementia and that dealing with bureaucratic matters may not receive priority. As [the Son] has indicated, he is experiencing difficulties dealing with the Trustee and providing the relevant information. He has not demonstrated an understanding of the role of the private financial manager by using his father's funds to improve his own financial situation and in doing so has created a significant conflict of interest. Considering these factors the Tribunal decided that it was in [the Father]'s best interests to revoke [the Son's] appointment as his father's financial manager."

Grounds of appeal

1. The Son has a right to appeal the decision under appeal, an "internally appealable decision", on any question of law or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b).
2. In a document attached to the notice of appeal, the solicitors then acting for the Son listed multiple grounds of appeal. Many of those grounds were in the nature of submissions. Others involved assertions of fact. None identified any question of law.
3. An appellant to an internal appeal brought under s 80(2)(b) of the NCAT Act, must identify with precision the question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13].
4. Whether a question is one of law must be approached as a matter of substance: Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) at 62, [94], [203]; Kudrynski v Orange City Council [2024] NSWCA 33 (Kudrynski) at [50]. In deciding whether the Son had identified a question of law we adopted the "more generous or benevolent approach" adopted by the Court of Appeal (Griffiths AJA, Meagher and Kirk JJA agreeing) in Kudrynski at [50]-[51]. In Kudrynski, the Court of Appeal considered an appeal from a decision of the NSW Land and Environment Court where the notice of appeal prepared by the self-represented appellant was "seriously deficient in several ways" and failed to "articulate clear grounds of appeal": at [34], [36]. While the approach adopted by the Court of Appeal in Kudrynski related to a different statutory context, it nonetheless provides useful guidance to Appeal Panels of NCAT.
5. At the hearing of the appeal, following discussion between the Tribunal and the parties, the Son agreed that the submissions prepared by the Separate Representative dated 19 January 2024 encapsulated the substance of his challenge to the decision under appeal. The following questions of law can be discerned from those submissions: 1. whether the formation of the state of satisfaction that the appointment of the Son as manager was not in Father's best interests was irrational or illogical and not based on findings or inferences of fact supported by logical grounds; 2. whether, in deciding to revoke the appointment of the Son as manager, the Tribunal failed, as required by s 4(d) of the Guardianship Act, to consider the views of the Father.
6. In addition, the Son seeks leave to appeal on the ground that the decision under appeal and the findings on which it is based, primarily (1) above, were against the weight of evidence.
7. Finally, the Son requests that we deal with the appeal under s 80(3) of the NCAT Act by way of a new hearing and appoint the family accountant as manager for the Father.

A question of law?

1. Parties to proceedings in which an internally appealable decision is made may appeal against that decision to an Appeal Panel as of right on any question of law: NCAT Act, s 80(2)(b). In limited circumstances a challenge to a finding of fact may raise a question of law. In Duncan v Independent Commission against Corruption [2016] NSWCA 143, Bathurst CJ observed at [278] that "findings or inferences of fact can be challenged if the decision was irrational or illogical and not based on findings or inferences of fact supported by logical grounds". That observation was made in respect of a jurisdictional error but equally applies to the question of whether there is an error of law: Health Care Complaints Commission v Sultan [2018] NSWCA 303 at [85], [86].
2. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) Crennan and Bell JJ explained the availability and scope of illogicality and irrationality as a basis for judicial review of a decision as to a jurisdictional fact at [130]-[131]: "[130] In the context of the Tribunal's decision here, 'illogicality' or 'irrationality' sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion."
3. Crennan and Bell JJ said at [133] that the correct approach in determining whether the exercise of a power or the formation or a state of satisfaction is unreasonable, is to ask "whether it was open to the [decision maker] to engage in the process of reasoning in which it did engage". A decision might be said to be illogical or irrational "if there is no logical connection between the evidence and the inferences or conclusions drawn": at [135]. Crennan and Bell JJ emphasised at [129] that illogicality or irrationality mean something more than "emphatic disagreement" with the finding or decision.

Submissions

1. The Son challenged the conclusion reached by the Tribunal that it was in the best interests of the Father that his appointment as manager be revoked. The Son contended that that conclusion was illogical and irrational and based on findings that were not supported by logical grounds, namely that the reason the Son transferred the Father's superannuation to himself was to "primarily benefit [the Son] and to reduce his own financial pressures" and, in addition indicated that the Son was "putting his own needs and interests before those of his father" (the impugned findings).
2. The Son contended that the impugned findings were inconsistent with the unchallenged evidence that he had been caring for and supporting the Father over a long period.
3. The Son submitted that, taken as a whole, the evidence revealed that the "true purpose" he transferred the Father's superannuation funds to himself was to enable him to work less, to devote more time to care for the Father and to give effect to the Father's wishes to remain living at home for as long as possible. Further, the Son contended that the evidence revealed that in the 12 months he acted as manager, the Father's finances were being used to cover the Father's expenses.
4. The Son claimed that the Father supported his superannuation funds being used to reduce the mortgage on the Randwick property. In support of that argument the Son pointed to the report dated 2 February 2023 in which geriatrician, Dr Thi Yen Hill, recorded that during a consultation on 2 February 2023 the Father said he is not aware of any financial stress his Son is experiencing but he would always be "happy to help [the Son] financially if I could".
5. The Separate Representative largely supported the Son's submissions and pointed out that the Son's claim that the Father required significant support to remain living at home, support largely provided by the Son, was corroborated by the Dr Hill report dated 2 February 2023.
6. In addition, the Separate Representative contended that the Tribunal failed to "contextualise the transfer [of superannuation funds] in the overall care that the son provided". The Separate Representative submitted that the Tribunal "overly perceived" with suspicion the Son's motives for the transfer of the Father's superannuation.

Consideration

1. To put the parties' submissions in context it is first necessary to outline the nature of the relationship between a manager and the protected person whose estate they have been appointed to manage, together with the role of the NSW Trustee in relation to the management of the estate of the protected person. Unless otherwise stated, in these reasons all references to "manager" are to an individual appointed to manage the estate of a protected person.

Nature of a fiduciary relationship

1. A manager owes the obligations of a fiduciary to the protected person: P v NSW Trustee and Guardian [2015] NSWSC 579 at [51]; Ability One Financial Management Pty Ltd and Anor v JB by his Tutor AB [2014] NSWSC 245 (Ability One) at [113] and [166]-[175]. A foundational duty of a fiduciary is to act in the interests of a beneficiary, in good faith: Ability One at [113]. As a fiduciary, a manager must avoid a conflict, or sensible possibility of conflict, between his or her personal interests and his or her duty to the protected person: GDR v EKR [2012] NSWSC 1543 at [38]; Woodward v Woodward [2015] NSWSC 1793 at [36]. A manager is not entitled to payment of remuneration out of the protected person's estate unless authorised to do so by the Supreme Court or the NSW Trustee: Gell v Gell (2005) 63 NSWLR 547 at 553-554, [21]-[23]; GDR v EKR at [32]; M v M [2013] NSWSC 1495 [50(i)]. Nor is a manager entitled to make a gift of the principal's estate to him or herself: Woodward v Woodward at [29], [36].

Role of the NSW Trustee

1. By s 25E(1) of the Guardianship Act, the Tribunal ordered that the estate of the Father be subject to management under the NSW Trustee and Guardian Act. By s 25M(1)(a) of the Guardianship Act, the Tribunal appointed the Son as manager of the Father's estate subject to management under the NSW Trustee and Guardian Act. By 25M(2)(b), the Son was prohibited from "interfer[ing] in any way" with the Father's estate unless, under Div 2 of Pt 4.5 of the NSW Trustee and Guardian Act, the NSW Trustee authorised the Son to exercise functions in respect of the Father's estate: Guardianship Act, s 25M(2)(b). That prohibition is subject to an exception which is not relevant to this appeal. See, Guardianship Act, s 25M(3).
2. Contained in Div 2 (Management of Estates by other persons) of Pt 4.5 (Management of Estates) of the NSW Trustee and Guardian Act, s 66 states: 66 NSW Trustee may authorise and direct functions of other managers (1) The NSW Trustee may, by order - (a) authorise a manager to have all, or any specified, functions necessary and incidental to the management and care of an estate and such other functions as the NSW Trustee may direct or authorise the manager to have or exercise, and (b) give a manager such directions in respect of the orders, authorities and directions authorised by this subsection as the NSW Trustee thinks fit. (2) Without limiting any other provision of this Division, the NSW Trustee may authorise a manager to have functions of a kind specified in section 16. (3) An order by the NSW Trustee is subject to the regulations or to any order of the Supreme Court or to any order of the Civil and Administrative Tribunal (in the case of a person under guardianship). (4) This section is in addition to sections 64 and 65.
3. On 7 September 2022, in exercise of its power under s 66(1)(b) of the NSW Trustee and Guardian Act, the NSW Trustee gave the Son a document entitled "Directions and Authorities" (the Directions and Authorities). In a covering letter the NSW Trustee explained: "The Directions and Authorities is a legal document that sets out the powers of a person who has been appointed a private manager under the NSW Trustee and Guardian Act 2009 by the Supreme Court or under the Guardianship Act 1987 by the Guardianship Division, NSW Civil & Administrative Tribunal."
4. In the Directions and Authorities, under the heading "Authority to manage", the NSW Trustee authorised the Son to, among other things, pay all reasonable living costs, including accommodation, care and medical expenses; pay all regular expenses, including utility accounts and rate notices; pay reasonable costs to repair and maintain estate property and pay reasonable costs of running and maintaining the managed person's motor vehicle.
5. Under the heading "Restrictions on authorities", the Directions and Authorities stated that the Son "must seek approval from NSW Trustee … for any matters not directly authorised above, including the following: Real estate 1. Buying, selling or leasing real estate; including occupation of the managed person's real estate by other persons. 2. Making a significant renovation or repair to the managed person's real estate. Other assets 3. Making a change to the approved estate investment plan. 4. Making a large acquisition, such as motor vehicle. 5. Disposing of an estate asset. Gifts or benefits 6. Making a loan or gift from the estate. 7. Transferring any of the estate funds into an account in the name of another person. 8. Using the estate assets for the benefit of the manager or a third party. Liabilities 9. Reimbursing a claim for a past debt or past gratuitous care claim. Remuneration 10. Any claim for remuneration by the manager. Legal proceedings 11. Commencing or continuing legal proceedings."
6. Under the heading "Directions" the NSW Trustee required the Son to "submit a Private Manager's Plan for the management of the managed person's estate within two months of the request by NSW Trustee …". In addition, the Son was directed to inform the NSW Trustee of any significant changes to the Father's estate.

Consideration

1. The question to be determined is whether the conclusion reached by the Tribunal, that it was satisfied that it was in the best interests of the Father to revoke the Son's appointment as manager, was irrational or illogical and not based on findings or inferences of fact supported by logical grounds. As the Son contended, the impugned findings were central to the Tribunal forming that state of satisfaction.
2. The Tribunal accepted the Son's claim that he was attentive and devoted and had been providing the Father with a high level of care and support. In the context of reviewing the 2022 Guardianship Order, it is implicit from its reasons for the decision to exercise the power to determine that the order was to lapse that the Tribunal had a high level of confidence in the Son's ability to make and implement decisions about the Father's personal affairs in a manner that gave paramount consideration to the Father's best interests.
3. However, the question of whether it was in the Father's best interests to revoke the Son's appointment as manager raised different considerations. That question required the Tribunal to consider the nature of the relationship created by that appointment and the consequent obligations imposed on the Son.
4. The Tribunal correctly acknowledged that, as a result of his appointment as manager, the Son became a fiduciary and was obliged to "put his Father's interests before his own" and to avoid a conflict between his interests and those of the Father: 2023 Reasons at [45], [48]. In addition, the Tribunal acknowledged that the Son's authority to deal with the Father's estate was not unfettered and was subject to any directions or authorities given by the NSW Trustee: 2023 Reasons at [34], [35], [48].
5. At [44], the Tribunal said that the Son's actions indicate that "he does not understand the duties of a private financial manager", including the requirement that he "cannot intermingle his father's funds with his own and that he cannot use his father's funds to his own financial advantage". The Tribunal went on to cite the reasons given by the Son for transferring the Father's superannuation funds to himself: "To offset my home loan, to provide financial relief for the family, to compensate some of my time invested into caring for dad, to be able to work less and/or stress less about work, to provide more care to my father, to provide more income for the family……"
6. The impugned findings immediately preceded that extract and, for convenience, are reproduced below: "The reasons for the transfer indicate that it was made to primarily benefit [the Son] by reducing his home loan and thus his mortgage repayments, to compensate him for caring for his father and to allow him to work less. [the Son] is in a fiduciary relationship with his father and must put his father's interests before his own. However, [the Son's] reasons for transferring the funds indicate that he is putting his own needs and interests before those of his father." (Emphasis added)
7. The Son does not challenge the finding made by the Tribunal that the reason he transferred the Father's superannuation to himself was to reduce the mortgage repayments on the Randwick property, to compensate him for the time spent caring for the Father, and to enable him to work less. Rather, the Son challenges the Tribunal's characterisation of the reason for the transfer, namely, to "primarily benefit [the Son]", and the finding that this evidenced that the Son was putting his own interests before the those of the Father.
8. Another decision-maker may have made a more benign finding and not described the transfer as being "primarily" for the benefit of the Son. Another decisionmaker may not have found that the Son was "putting his own needs and interests before those of his father". Nonetheless, on the available material neither finding could be said to irrational or illogical. Each finding was reasonably open to the Tribunal on the available material, especially given the history to the superannuation transfer: the Son was appointed manager of the Father's estate in September 2022, purchased the Randwick property in November 2022, and transferred the superannuation funds to himself in February 2023.
9. Whether the Son held the genuine belief that the Father was the primary beneficiary of the superannuation funds transfer is not to the point. Objectively assessed, by that transfer the Son received a significant financial benefit. In arranging and accepting that transfer, the Son had acted in breach of his fiduciary duties to the Father.
10. Furthermore, the Son did not have power to make that transfer. First, the transfer fell outside the scope of the Son's authority to deal with the Father's estate. By the Restrictions and Authorities, the Trustee had directed the Son not, without its approval, to make a loan or gift from the Father's estate; not to transfer any of the Father's funds into an account in the name of another person; not to use the Father's assets for the benefit of the manager, and not to claim remuneration from the estate. Second, the transfer was not a gift of the type the Son was authorised to make by s 76 of the NSW Trustee and Guardian Act. The transfer of funds was not a gift of a "seasonal nature or given because of a special event (such as a birthday or marriage)": NSW Trustee and Guardian Act, s 76(1)(a). Nor was that transfer a "donation of a nature that the managed person made when the managed person had capacity to do so or that the managed person might reasonably be expected to make": NSW Trustee and Guardian Act, s 76(1)(b). In Woodward v Woodward at [36] Slattery J said that s 76 of NSW Trustee and Guardian Act does not extend to the making of a gift of the managed person's property by the manager to himself or herself in breach of their fiduciary duty.
11. The impugned findings were central to the conclusion that it was in the best interests of the Father that the Son's appointment as manager be revoked. But they were not the only findings. The Reasons reveal that the Tribunal also considered it significant that the Son did not appear to understand the nature of his fiduciary obligations to the Father and the fact that, as a result of the transfer, he had created a "significant conflict" between his interests and those of the Father. The Tribunal also found that the plan for managing the Father's estate outlined by the Son appeared to be motivated also by his desire to maintain his Father's property for his inheritance.
12. We reject the contention that the conclusion that the revocation of the Son's appointment as manager was in the best interests of the Father, was irrational or illogical and not based on findings or inferences of fact supported by logical grounds.
13. This ground of appeal must fail.

Ground 2: Purported failure to consider the views of the Father

1. By Ground 2, the Son contended that in deciding to revoke his appointment as manager, the Tribunal failed, as required by s 4(d) of the Guardianship Act, to consider the views of the Father.
2. The Son pointed out that in the hearing of the review application in answer to the Tribunal's question "Would [you] like [the Son] to continue to make decisions relating to your life", the Father said, "For me it is unusual for people who are not related to my life to take part in decisions of my life". (Transcript of proceedings, 6 September 2023, 00:30:30). In addition, the Son contended that the Father supported the use of his superannuation funds to reduce the mortgage on the Randwick property and in support pointed to the statement made by the Father to Dr Hill during a consultation on 2 February 2023 that he would always be "happy to help [the Son] financially if I could".
3. The Separate Representative met with the Father on 6 December 2023 to obtain the Father's views in relation to the appeal. In a report of that meeting filed in this appeal, the Separate Representative recorded that during that meeting the Father said his son had control of his finances and that "I trust him", adding "government control was not acceptable".
4. The Father said much the same thing in the hearing of the appeal.

Consideration

1. By s 4(d) of the Guardianship Act, in exercising the power to review the appointment of the Son as manager, the Tribunal was obliged to have regard to the views of the Father. In P v NSW Trustee and Guardian [2015] NSWSC 579 at [197], Lindsay J pointed out that obligation is reinforced by cl 5(1) of Sch 6 to the NCAT Act, which provides that when exercising its "Division functions for the purposes of the Guardianship Act", the Tribunal is under a duty to observe the principles set out in s 4 of that Act.
2. The obligation to have regard to the views of the Father required the Tribunal to give "proper, genuine and realistic consideration" to those views. That obligation would not be discharged by "mere advertence" to those views: see Islam v Cash [2015] FCA 815; (2015) 148 ALD 132 at [14]; Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWCA 337 at [58], (2008) 251 ALR 633 at 651; Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29], [30], (2003) 74 ALD 124 at 130.
3. At [49], in the context of considering whether it was in the best interests of the Father to revoke the appointment of the Son as manager, the Tribunal acknowledged that it was required to take into account the Father's views. The Tribunal noted that the Father clearly said during the hearing that he "wanted [the Son] to manage his finances". The Tribunal went on to note that the "medical evidence indicates that, due to his dementia, [the Father] does not understand his financial situation and the issues before the Tribunal for determination". The Tribunal rejected the opinion expressed by anaesthetic registrar, Dr Isabel McTigue, a friend of the Son and Father, that the Father has "the cognitive capacity to request revocation of the financial management order to facilitate his son's management of his finances". The Tribunal reasoned at [49] that there is no evidence that Dr McTigue has assessed the Father's cognitive capacity and "no reason for the Tribunal to prefer her evidence over the evidence of Dr Hill". At [33], the Tribunal recorded that in his report dated 2 February 2023, Dr Hill wrote that he found the Father was "confused in managing his finances" and "remains incapacitated to manage his finances".
4. Read as a whole, the reasons reveal the Tribunal complied with the obligation to give proper and genuine consideration to the views of the Father. At [50], the Tribunal gave a reasoned and cogent explanation for its decision not to give effect to the Father's view ("to give significant weight to the Father's views").
5. While required to have regard to the views of the Father, s 4 of the Guardianship Act did not direct the Tribunal to make a decision which gave effect to those views. In considering whether it was satisfied that it was in the best interests of the Father to revoke the 2022 FMO, and in exercising the discretion to revoke that order, the Tribunal was not only required to consider the views of the Father but also to observe the principles that the Father "should be protected from neglect, abuse and exploitation" and that the Father's welfare and interests be the "paramount consideration": Guardianship Act, ss 4(g), 4(a).
6. Finally, we address the suggestion made by the Son that the Father had given consent to the transfer of the superannuation funds and the Tribunal ought to have taken that into account in revoking the Son's appointment as manager. The compelling evidence is that by February 2023 the Father lacked capacity to give informed consent to a transaction of that nature. In any event, as a consequence of the making the 2022 FMO, the Father's power to deal with his estate was suspended: NSW Trustee and Guardian Act, s 71(1). Only the Son had power to deal with the Father's estate.
7. This ground of appeal must fail.

Leave to appeal

1. The Son seeks leave to appeal. In support of that request the Son repeats the submissions made in support of Grounds 1 and 2. The Son contends that the findings made by the Tribunal that it was not in the best interest of the Father to revoke the 2022 FMO and that it was in the best interests of the Father to revoke his appointment as manager were against the weight of evidence and gave rise to an injustice to the Father.
2. In Collins v Urban [2014] NSWCATAP 17 (Collins), an Appeal Panel of NCAT noted at [84] that there must be a "sound basis" to grant leave to appeal under s 80(2)(b) of the NCAT Act. The Appeal Panel stated that an appellant must demonstrate something more than the primary decision-maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. Ordinarily, it will only be appropriate to grant leave to appeal 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, (Citations omitted)"
3. Where, as here, the decision under appeal was made by the Guardianship Division, in the exercise of the discretion to grant leave to appeal is the protective character of the jurisdiction exercised by that Division must be considered: C v W [2015] NSWSC 1774 at [44]-[46]; BPY v BZQ [2015] NSWCATAP 33 at [33]-[34]; ZII v ZIJ [2018] NSWCATAP 255 at [60].
4. We accept that the Son holds the genuine belief that the decision under appeal is unfair to the Father, and, in so far as it impugned his motives for arranging the transfer of the Father's superannuation funds, to himself.
5. Nonetheless, we are not persuaded that there is a sound basis to exercise the discretion to grant leave to appeal. None of the factors identified by the Appeal Panel in Collins as warranting the exercise of that discretion are established. Undoubtedly, the decision under appeal is of great importance to both the Son and the Father. However, it does not raise an issue of general principle or public importance. It is confined to its specific facts and has no broader application. Nor are we persuaded that the decision contains a factual error of the type identified by the Son. There is no evidence to suggest, and nor is it asserted, that the Tribunal went about the fact-finding process in an unorthodox manner or in a way that was likely to produce an unfair result. Finally, we are not persuaded that the exercise of discretion to grant leave would give effect to the statutory instruction to give paramount consideration to the welfare and interests of Father.
6. Leave to appeal is refused.

New hearing

1. The Son requested that we deal with the appeal by way of a new hearing.
2. In written submissions, the Son proposed that at the new hearing the Appeal Panel should remake the decision under appeal and revoke the appointment of the NSW Trustee and appoint the family accountant (the Accountant) as manager of the Father's estate. In written submissions in support of that proposal, the Son said that the Accountant was already familiar with the Father's financial position and would be able to take over the "bureaucratic responsibilities" and enable him to focus on providing care to the Father. The proposed appointment would address the Tribunal's concerns about "potential conflicts of interest and fiduciary lapses".
3. At the hearing of the appeal, the Son said that his preference would be for him and the Accountant to be jointly appointed to manage the Father's financial affairs. He said that if the Appeal Panel had concerns about his involvement, he would support the Accountant being appointed as sole manager.
4. The Separate Representative supported the request to exercise the discretion to deal with the appeal by way of a new hearing and urged the Appeal Panel to appoint the Son and the Accountant to jointly manage the Father's estate. The Separate Representative reported that the Father supported that proposal. The Separate Representative submitted that under that proposal the Son would not be acting alone and would have the support of a professional "who hopefully would ensure the obligations to the Trustee are met".
5. In the hearing of the appeal, the Separate Representative and the Son said that the Father strongly opposed the involvement of the state in his affairs. Several comments made by the Father during that hearing were consistent with that claim.

Consideration

1. Section 80(3) of the NCAT Act permits the Appeal Panel "to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing" and to "permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances".
2. Leaving to one side the question of whether it would be appropriate to exercise the discretion conferred by s 80(3) of the NCAT Act, if we were to proceed to consider the Son's application to revoke the appointment of the NSW Trustee, we would decline to do so. This is because we have not been given any information to enable us to assess whether the Accountant is a suitable person to undertake the role as manager. We have no information which might enable us to assess whether the Accountant possesses the necessary knowledge, skills and personal attributes necessary to undertake the role of manager. The roles of manager and accountant are different. It requires more than financial literacy and requires an understanding of the nature and obligations of a fiduciary and a willingness to comply with those obligations.
3. In addition, we have not been given any information about the basis on which the Accountant would undertake the role of manager and whether it is proposed that the Accountant would be remunerated. Without an order by the Supreme Court or the NSW Trustee, a manager is not permitted to receive remuneration on undertaking that role: NSW Trustee and Guardian Act, s 115.
4. It is open to the Son to make an application under s 25S of the Guardianship Act seeking revocation of the appointment of the NSW Trustee. If he does so, it would be advisable that any proposed manager prepare a statement and supporting documents setting out the basis for their claim that they are a suitable person to undertake the role of manager.

Orders 1. Leave to appeal is refused. 2. The Appeal Panel declines to exercise the discretion under s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to deal with, by way of a new hearing, the appeal against the decision made by the Tribunal on 6 September 2023. 3. Appeal is dismissed.

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: 29 May 2024