YKO v YKS

Publication of the names of the parties

1. The publication or broadcast of the name of any person, who is mentioned or is otherwise involved in an internal appeal against decisions made by the Guardianship Division of NCAT, is prohibited under s 65(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision due to s 65(3) of that Act. Nonetheless, because of the sensitive nature of the matters raised in the proceedings, we have decided to order, pursuant to ss 65(1)(a)-(c) of that Act that the publication of these reasons, or any part of them, either by sound recording or transcript which includes any details that may identify the parties is prohibited.

The grounds of appeal

1. The Appellant provided an annexure to the Notice of Appeal under the hearing 'Grounds of appeal'. We have set out the relevant parts of that document which we discern are the grounds of appeal. He states: "The reasons for the decision cited that the Enduring Power of Attorney was revoked as [YKQ] was deemed not to be suitable as an attorney; and in point 69 - as I had not made any submission that the Power of Attorney should operate as per the substitute attorney. In my statement dated 14 June 2023 point 79, 23 August 2023 point 129, and my last statement dated 21 February 2024 point 159 I wrote that I wanted to be her substitute attorney. This has been overlooked."
2. The submissions include: "Furthermore, intense infra familial conflict was cited a number of times as to the reason I could not be her financial manager or alternate guardian."
3. Specifically, in relation to the review of the EG the Appellant contends: "The enduring guardianship appointment was revoked as I was not recognised as an alternate guardian due to intra familial conflict, with the letter from Forsters solicitors and statement by Mr Kambas [separate representative] as the main evidence. As reported above, neither Mr Kambas nor John Forster recognised mum's diminished capacity, nor did they realise they were being manipulated by relying heavily on information sent via electronic means when the author of the emails could not be verified. The conflict that existed between [FYKQ] and me was due to the ongoing false statements, the ongoing financial abuse, and the neglect of mum's health as documented above. I believe that the report from the clinical neuropsychologist will prove that [FYQ] has been providing false statements throughout all of the NCAT proceedings and that my appointment as the alternate guardian should not be overlooked."
4. YKO raises other matters such as the Tribunal's finding of intense intrafamilial conflict, his mother's capacity and allegations of neglect, psychological manipulation and financial abuse by YKQ. We identified to YKO during the hearing of this appeal, that some of these matters were findings of fact made by the Tribunal which, in most respects, weighed in his favour. YKO conceded that his main contention in the appeal was the Tribunal's findings at [69] and [121], being his removal as the substitute attorney and the alternative guardian.
5. We have distilled the Appellant's grounds of appeal from the written material and oral submissions made by the Appellant. The Appellant agreed that the following matters were his grounds of appeal: 1. The Tribunal was in error in finding that 'no submission' was made "that the Enduring Power of Attorney should operate as per the substitute Attorney'. 2. The Tribunal was in error in finding that YKO's appointment as the substitute power of attorney should be revoked. 3. The Tribunal was in error in finding that YKO's appointment as the alternative EG should be revoked. 4. The Tribunal was in error in not appointing YKO as the guardian for YKS. 5. The Tribunal was in error in not appointing YKO as the financial manager for YKS.

Principles governing the appeal

1. The principles governing the appeal are not in dispute and only require brief restatement.
2. The Appellant appeals against the decision of the Tribunal of 29 February 2024 as of right on a question of law, or with leave of the Appeal Panel, on any other ground (NCAT Act s 80(2)(b)).
3. In the Appellant's Notice of Appeal, despite crossing the box indicating he seeks leave to appeal, the grounds for leave to appeal are the same grounds of appeal which are identified above. The Appellant does not require leave to appeal on these grounds, this is because the imputed error, if made out, is an error or law. That is that the Tribunal made an error in its finding of fact and applied the wrong test in finding that intrafamilial conflict was a reason why YKO was not appointed as the financial manager and/or guardian.
4. In Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274, questions of law were identified as including errors of legal principle, decisions based on material errors of fact, decisions made after taking irrelevant matters into account, or failing to take relevant matters into account, and arriving at a result which was so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, although the error in question did not explicitly appear on the face of the record. Other questions of law include actual or apprehended bias (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63), failing to adequately expose the process of reasoning which led to the decision and/or constructive failure to exercise jurisdiction (Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33), failing to respond to a substantial, clearly articulated argument relying on established facts (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26) and denying a party procedural fairness or natural justice in circumstances where the same result would not be inevitable if the appeal were allowed and a new trial ordered (Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54).
5. The Appellant was obliged to identify with precision the question of law said to be raised by the appeal (Farella v Chief Commissioner of State Revenue [2014] NSWCA 378; Schwartz Family Co Pty Limited v Capital Carpets Pty Limited [2017] NSWA 223). As set out above, we have identified the questions of law which the Appellant has raised in this appeal.

Ground 1 - The Tribunal was in error in finding that "no submission" was made "that the Enduring Power of Attorney should operate as per the substitute Attorney".

1. This ground, was the main contention raised in the appeal. It is the only ground that has potential merit. Essentially, the Appellant contends that the Tribunal was in error in making the findings at [69]. We have carefully reviewed all of the evidence and the submissions in the appeal. We find that the Tribunal was in error in coming to the conclusion "There was no submission that the enduring power of attorney should operate as per the substitute attorney". This is because YKO squarely raised that issue and confirmed in both his evidence and submissions that he was prepared to act as the substitute attorney. The following references evidence YKO's contention.
2. In the transcript of the hearing on 29 February 2024 the following exchange took place: 'PRINCIPAL MEMBER BOOBY: Alright, so just a couple of things we could do when we have a review of an enduring power of attorney, we could do nothing and leave the enduring power of attorney there. We could revoke the enduring power of attorney. If we - or we could do nothing about the enduring power of attorney in that application and make a financial management order. We also have an application for a financial management order. We could do something about the power of attorney and make a financial management order based on the financial management application. As I said, we could revoke the entire enduring power of attorney or we could remove an attorney and if we did that we could replace them with someone. As the applicant, [YKO], just what did you want us to do? [YKO]: I'd like to take over the power of attorney and enduring guardian. I mean the power of attorney at the moment, I'm actually not too worried about, it's more just getting mum out, get her in the right care. I know there's a lot of damage done, the finance is gone and so, you know, I think they still need more time to get their heads around it. So the finance stuff I'm not - … PRINCIPAL MEMBER BOOBY: That would mean a financial management order. [YKO]: Well I think I should stay [unintelligible 0.:00:33] to or ? … [YKO]: I'm happy to do both, I want to do both but if this had to go on for another six months, the financial management order again, that's not the end of the world, it wouldn't worry me at all.'
3. We find YKO clearly indicated, as set out in the extract from the transcript, that he wished to continue as an attorney under the POA, contrary to the findings made by the Tribunal at [69].
4. In the Appellant's grounds of appeal he also contends that in his statements dated 14 June 2023 at [79], 23 August 2023 at [129] and 21 February 2024 [159] he wrote that he wanted to be his mother's substitute attorney. The relevant statements referred to by the Appellant were not put in evidence before the Appeal Panel. We do not doubt the submissions made by the Appellant but in the absence of the statements we are unable to make findings in this regard. This is not of any significant moment given our findings with respect to the error made by the Tribunal having reviewed parts of the transcript identified above.

Our conclusion

1. We are satisfied that the Tribunal proceeded to make the findings at [69] based upon a material error of fact, that is, YKO did make a submission that he wished to remain as an attorney, the substitute attorney, and for the POA to continue to operate. This is an error of law and we find accordingly. The implications of so finding require further consideration.

Ground 2 - The Tribunal was in error in finding that YKO's appointment as the substitute power of attorney should be revoked.

1. The Appellant does not contend that the Tribunal erred in misconstruing its power to review the POA. The Tribunal set out its power which found in s 36 of the Powers of Attorney Act 2023 (NSW) at [49]-[52]. We do not need to rehearse those findings here, as they are not in dispute. We find the Tribunal's reasons reflect the correct provisions relevant to the review of the POA and they have been correctly applied.
2. The Appellant does not contend that the Tribunal erred in the test it applied in revoking his appointment as the substitute attorney. However, he submits that the Tribunal erred in finding that his appointment as the attorney should be revoked, because, the Tribunal did so upon the incorrect factual finding in Ground 1.
3. We have found that the Tribunal did err in respect of Ground 1. However, the incorrect finding of fact, was not the only reason why the Appellant's appointment was revoked. The Tribunal found at [69] "…and in our view, having regard to the intense intra familial conflict, it is in the best interests of [YKS] that the financial manager be an independent body…". In our view the reasons disclose that intra familial conflict was the primary reason why the Appellant's appointment as the substitute attorney was revoked. The primacy of those reasons are also referred to at [90], where the Tribunal set out other factors for which the Appellant was not suitable to be appointed as the financial manager. They equally apply, in our view to the decision to revoke the Appellant's appointment as the substitute attorney.
4. The ground of appeal is not established.

Ground 3 - The Tribunal was in error in finding that YKO's appointment as the alternative EG should be revoked.

1. The relevant finding made by the Tribunal in respect of this ground of appeal is at [121]. The Tribunal correctly identified that the appointment of YKO as the alternative enduring guardian is not an arrangement which would enable decision to be made in the best interests of YKS.
2. At [92]-[93] of its reasons, the Tribunal correctly set out the relevant statutory power, and test, which is to be applied when conducting a review of the EG. Relevantly that test is found at s 6K of the Guardianship Act: (1) On reviewing the appointment of an enduring guardian, the Tribunal may-- (a) revoke the appointment or deal with the matter as provided by subsection (3) (or both), or (b) confirm the appointment, with or without varying the functions of the enduring guardian under the appointment. (2) The Tribunal must not revoke the appointment of an enduring guardian unless-- (a) the enduring guardian requested the revocation, or (b) the Tribunal is satisfied that it is in the best interests of the appointor that the appointment be revoked.
3. The Tribunal went through in meticulous detail the reasons why it determined that it was in the best interests of YKS to revoke the appointment of YKQ as the guardian at [94] - [119]. We have not rehearsed those reasons in this appeal. This is because FKO does not challenge the Tribunal's decision to revoke the appointment of YKQ as the guardian.
4. In deciding to revoke the appointment of YKO as the alternative guardian for YKS, the Tribunal correctly applied the same statutory test which is set out in s 6K of the Guardianship Act.
5. Having applied that test, and, after considering the principles in s 4 of the Guardianship Act, the Tribunal made findings at [120]-[121] and determined to revoke the appointment of YKO as the alternative guardian. It determined that it was in the best interests of YKS to do so, because, the Tribunal was not satisfied that YKO was likely to take into consideration the views of YKQ or to prioritise YKQ's relationship with YKS. The Tribunal made this finding having set out a detailed history of intrafamilial conflict.
6. We asked YKO to identify where the particular error was in the Tribunal undertaking this task and making its findings. He was unable to identify any error.
7. We find that the Tribunal correctly applied the statutory task in determining to revoke YKO as the alternative guardian for YKS. Despite YKO raising in his written submissions that the Tribunal relied upon submissions from the separate representative, which he said was based upon emails drafted by YKQ under the guise of YKS, or a forgery, we find that it was open to the Tribunal to do so.
8. The ground of appeal is not established.

The Tribunal was in error in not appointing YKO as the guardian for YKS.

1. The relevant statutory considerations in determining who to appoint as the guardian were correctly set out by the Tribunal at [131]-[136]: The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Guardianship Act. He or she must: (a) have a personality generally compatible with the personality of the person under guardianship, (b) have no undue conflict of interest (particularly financial) with those of the person, and (c) be able and willing to exercise the functions of the order. 132 In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act (C S and MY v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66]). 133 In Pv D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest. 134 The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: Guardianship Act, s 15(3). 135 The Supreme Court has held that: "the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25])."
2. The Tribunal in applying that test found, for the same reasons that it set out at [120]-[121], that the Appellant was not suitable to be appointed as the guardian. In short, that is because in carrying out the functions granted to the guardian, the Tribunal was not satisfied that the Appellant could comply with s 4(e) of the Guardianship Act: "the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised", or to make decisions "that properly considered her best interests and welfare" referring to, but not specifically, restating s 4(a) "the welfare and interests of such persons should be given paramount consideration".
3. It follows that if the Appellant was not suitable for the reasons stated to continue in the role as an enduring guardian, he was also not suitable to be appointed as the guardian under a guardianship order for the reasons stated by the Tribunal.
4. We find there is no error in the approach taken by the Tribunal. The ground of appeal is not established.

The Tribunal was in error in not appointing YKO as the financial manager for YKS.

1. The Tribunal at [76] correctly stated that in deciding who should be appointed as the financial manager the Tribunal must act in the paramount best interests of YKS and in accordance with s 4 of the Guardianship Act.
2. At [77]-[83], the Tribunal set out a summary of the principles and considerations which form part of determining who to appoint. The Appellant does not contend the test applied by the Tribunal was incorrect. There is no error in the Tribunal's identification of those principles.
3. At [84]-[86], again in a meticulous way, the Tribunal determined that YKQ, had a real conflict of interest, amongst other reasons, to be appointed as the private financial manager for YKS. The Appellant does not cavil with those reasons.
4. Importantly, at [90], the Tribunal set out the following reasons why it determined that the Appellant was not suitable to be appointed as the private financial manager: In our view the intrafamilial discord was such that [YKO] would be unable to make independent and objective decisions having regard to the views and information available from each family member and to the extent that he was unable to do so, he would be limited in his ability to make decisions in the best interests of [YKS]. The documents provided to the Tribunal include divergent views regarding the relationship between [YKO] and [YKS]. We were unable to put the evidence to [YKS] to seek her views. In the absence of that opportunity, we accept the submission of Mr Kambas that [YKS] opposes the appointment of [YKO]. In our view, there are a number of important legal and administrative matters to be addressed by [YKS]' financial manager. As listed in the preceding section of these Reasons, these include issues related to the legitimacy and impact of the 15 December 2020 letter and any actions arising from those matters, as well as its effect on any pension entitlement of [YKS]. There is also a need to consider if any action is required regarding the transfer of funds from [YKS] to [YKQ] and regarding the spending of funds that [YKQ] submits were spent on behalf of his parents. The evidence about the funds of [YKS] and [YKS deceased husband] used by [YKQ] has been disputed during the hearing. In our view, to avoid the possibility of, or allegation of, bias in relation to investigating these matters, any further investigation of the past accounts needs to be by, or at the direction of, an independent financial manager.
5. The reasons provided by the Tribunal are sound. They reflect, appropriately, the longstanding intrafamilial conflict and its effect upon the ability of YKS's family to effectively manage her financial affairs. It was open to the Tribunal to make the findings it did about the Appellant and whether he was suitable to be appointed as the financial manager. There is no error identified in the approach taken by the Tribunal.
6. The ground of appeal is not established.

What action should the Appeal Panel take having found an error of law being established - Ground 1?

Determination of the appeal

1. Section 81(1) of the NCAT Act states that in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal including (but not limited to) orders that provide for any of one or more of the following: 1. the appeal be allowed or dismissed, 2. the decision under appeal be confirmed, affirmed or varied, 3. the decision under appeal be quashed or set aside, 4. the decision under appeal to be quashed or set aside and for another decision to be substituted for it, 5. the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.
2. The question of what orders are appropriate in light of our conclusion that Ground 1 is established, requires consideration of whether the challenged finding was material to, or likely to have made a difference to, the outcome of the decision under appeal: Stead v State Government Insurance Commission at [145].
3. Establishing error pursuant to Ground 1 will not result in the appeal being allowed if the decision under challenge had another basis which was not legally unsound (Reimers v Medical Board of Australia [2024] NSWCA 164, at [25] [29] [78] [82]).
4. The challenged finding was not a 'jurisdictional fact', that is, the challenged finding was not a precondition to the exercise of the Tribunal's power to make a financial management order, nor whether the appointment of YKQ and YKO as attorneys were revoked. The relevant jurisdictional fact was that the Tribunal reached a stage of satisfaction that it should exercise a discretion to review the POA and remove both YKO and YKQ as attorneys "having regard to the intense intrafamilial conflict" and that it is in the best interests of YKS that the financial manager be an independent body, or be overseen by an independent body.
5. The Tribunal found at [69], referring to the intrafamilial conflict and the requirement for the financial manager to be independent, that the appointment of YKQ and YKO was to be revoked. In our view, even if the challenged finding was made correctly, that is, if the Tribunal found that YKO was prepared to continue as a substitute attorney, it would not have resulted in a different outcome. This is because the Tribunal found "intense intrafamilial conflict" that required YKS' finances to be managed by an independent body, or be overseen by an independent body, rather than being managed by the attorneys. The Tribunal found it was in the best interests of YKS to revoke the appointment of the attorneys and make a financial management order committing management of the estate to the NSWTG. The Tribunal went on to find at [90] that YKO was not an appropriate person to be appointed as a private manager for YKS which included intrafamilial discord, the then views of YKS set out by the separate representative. The important legal and administrative matters that were required to be undertaken for YKS and an investigation of the use of YKS' funds by YKQ, which was required to be undertaken by an independent financial manager. This was to avoid the possibility of, or allegation of, bias in relation to that investigation if YKO was appointed as the private financial manager.
6. We are satisfied that the Tribunal attached primacy to the intrafamilial conflict in coming to the conclusion that YKO's appointment as an attorney should be revoked. For similar reasons, the Tribunal decided that YKO should not be appointed as the private manager. We find that Tribunal's error in Ground 1 can be said to be peripheral or inconsequential to those immediate findings. We also find it was not a material fact that formed part of the Tribunal's chain of reasoning and the ultimate conclusion that there was a need for another person to manage YKS' affairs. We are satisfied that the successful challenged finding would not have made a difference to the Tribunal's ultimate decision to revoke the attorneys under the POA and appoint the NSWTG as the manager of YKS' estate.
7. For the foregoing reasons, we have decided to dismiss the appeal.

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: 12 February 2025