YKV v YJI

Kioa v West [1985] HCA 81

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23

Kudrynski v Orange City Council [2024] NSWCA 33

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610

Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223

Waterford v Commonwealth [1987] HCA 25; 163 CLR 54

Mark Aronson, Matthew Groves, and Greg Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2021, Thomson Reuters) at 5.280, fn 218

(1) Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013 (NSW), a person must not without the consent of the Tribunal, publish or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved in the proceedings. The name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. The provision of these reasons (with persons identified) is not intended to be a publication or broadcasting of an official report of the proceedings.

(2) The parties are to be referred to by the pseudonyms set out in these Reasons for Decision.

1. This appeal is about YMA (the mother), an 83-year-old woman who lives in residential aged care and has been diagnosed with dementia. YMA's daughter, YKV (the appellant), appeals from a decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to commit the management of the mother's financial affairs to the NSW Trustee and Guardian (the NSW Trustee). The appellant contends that the Tribunal erred by declining to appoint her to manage her mother's financial affairs.
2. In November 2019, the mother executed an enduring power of attorney appointing a long-standing friend of her late partner and herself (the attorney) and her niece (the niece) as her enduring attorneys to act jointly and severally (the EPoA). In January 2024, the appellant applied to NCAT, requesting it to review the operation and effect of the EPoA. Since that application was made, the attorney and the niece have resigned as attorneys.
3. On 28 June 2024, following a hearing, the Tribunal decided to treat the appellant's application for review of the EPoA as an application for a financial management order under s 37 of the Powers of Attorney Act 2003 (NSW). The Tribunal then proceeded to make a financial management order in respect of the mother and committed the management of her estate to the NSW Trustee. For the reasons that follow, we have decided to allow the appeal and to remit to the Tribunal for further consideration of the question of who should be appointed as to manage the mother's estate.

1. The Tribunal may, on the application of an "interested person", decide to review the operation and effect of a "reviewable power of attorney" or not to carry out such a review: Powers of Attorney Act, s 36(1). After reviewing the operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make orders under s 36: Powers of Attorney Act, s 36(2). The EPoA is a reviewable power of attorney: Powers of Attorney Act, s 33(1).
2. If, on review of the operation and effect of an enduring power of attorney, the Tribunal decides not to make an order under s 36 of the Powers of Attorney Act, it may (if it considers it appropriate in all the circumstances to do so) decide to treat the application for the review as an application for a financial management order under Pt 3A (Financial management) of the Guardianship Act 1987 (NSW): Powers of Attorney Act, s 37(1); Guardianship Act, s 25F(d).
3. To exercise the power to make a financial management order, the Tribunal must consider the person's capability to manage his or her own affairs and be satisfied of the matters listed in s 25G of the Guardianship Act:

25G Grounds for making financial management order

The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that -

(a) the person is not capable of managing those affairs, and

(b) there is a need for another person to manage those affairs on the person's behalf, and

(c) it is in the person's best interests that the order be made.

1. Where the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a "protected person" (a person whose estate (or part of whose estate), is subject to a financial management order) 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.
2. Section 4 of the Guardianship Act sets out the general principles that must be observed when exercising functions under the Guardianship Act and the Powers of Attorney Act with respect to persons who have disabilities:

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.

1. On 13 August 2024, the Tribunal published its reasons for the decision under appeal made on 28 June 2024 (the Reasons).
2. At [17]-[22], the Tribunal explained the reason it decided to conduct a review of the EPoA. The Tribunal noted that the attorney and the niece had resigned their appointments creating a vacancy in the position of attorney under the EPoA: at [19]. In addition, the Tribunal noted that there was considerable disagreement between the attorney and the appellant regarding the management of the mother's estate, "particularly regarding the sale of real property": at [20].
3. At [23]-[28], the Tribunal explained why it had decided not to make order under s 36 of the Powers of Attorney Act. The Tribunal reasoned that given the "considerable disagreement and competing views regarding the management of [the mother's] estate", together with the fact the attorneys had resigned, and the appellant had not requested to be appointed as attorney, it was in the mother's best interests to make a financial management order.
4. At [30], the Tribunal noted that to exercise the power to make a financial management order, it must be satisfied that the mother was incapable of managing her affairs, that there was a need for another person to manage her affairs and that it was in her best interests for a financial management order to be made. The Tribunal found that the mother had a diagnosis of "likely moderate dementia due to Alzheimer's disease" and accepted the opinion expressed by Dr Alfred Oring that the mother did not have "capacity to make financial and legally binding decisions": at [37].
5. The Tribunal noted that the mother's estate is "sizeable and complex" and decisions had to be made about the sale or lease of her two residential properties, payment of aged care fees, and full or part payment of the aged care refundable accommodation deposit (RAD): at [58]. The mother owned two residential properties, the property where she was living immediately before she moved to residential care, valued at $750,000 (the family home) and a waterfront investment property valued at $1.5M (the investment property).
6. At [59], the Tribunal noted the conflicting views held by the parties about how to fund the RAD payable to the aged facility where the mother was living. The Tribunal noted that the appellant opposed selling the investment property to fund the RAD and claimed that the mother did not wish that property to be sold: [46(1)]. The Tribunal noted that the appellant contended that it was not in the mother's best interest to sell the property because she is otherwise "financially secure and does not need the proceeds of this strong investment property placed into a term deposit to earn much less money per year than the property is appreciating each year": at [46(2)].
7. The Tribunal found that because of the dispute relating to "how best to manage [the mother's] affairs" and given that the EPoA was no longer operative because the attorneys had relinquished their appointments, there was a need to make a financial management order in respect of the mother and that it was in her best interests to do so: at [62]-[64].
8. Having decided to make a financial management order, the Tribunal then considered who should be appointed as financial manager of the mother's estate: at [65]-[80].
9. The appellant proposed that she be appointed as the financial manager: at [69]. That proposal was supported by the niece and the mother, and opposed by the attorney and the appellant's estranged daughter (daughter A).
10. The Tribunal decided not to appoint the appellant, reasoning at [77]:

"Whilst [the appellant] may have the objective skills and experience that would enable her to manage an estate, we were ultimately persuaded that her longstanding views and strongly expressed preference to retain the [Investment] property, could ultimately influence her ability to make decisions that are not in [the mother's] best interests. In that regard, we could not be satisfied that [the appellant] could make decisions that would advance the interests of [the mother], rather than to eventually increase the assets of the family."

1. In addition, the Tribunal considered given the "extreme family conflict and the detrimental impact this conflict has on [the mother]", the mother "would benefit from the 'dispassionate and neutral approach' (as described by Kirby P in Holt & Anor v Protective Commissioner), that would be adopted by the NSW Trustee and Guardian": at [79].
2. The Tribunal committed the management of the estate to the NSW Trustee: at [80].

1. As a party to the proceedings to review the EPoA, the appellant has a right to appeal the decision, an "internally appealable decision", on any question of law or, with the leave of the Appeal Panel, on any other ground: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
2. An appellant must identify with precision the question of law said to be raised by the decision under 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]. In the notice of appeal, which the appellant filed before being provided with the Reasons, the appellant failed to identify any question of law. However, she endeavoured to do so in submissions subsequently filed in support of the appeal. Noting that the appellant was not legally represented in the appeal and adopting the "more generous or benevolent approach" endorsed by the Court of Appeal (Griffiths AJA, Meagher and Kirk JJA agreeing) in Kudrynski v Orange City Council [2024] NSWCA 33 at [50]- [51], we concluded that the following questions of law can be discerned from the appellant's oral and written submissions:

(1) whether the Tribunal failed to afford the appellant procedural fairness:

(a) by failing to give her a reasonable opportunity to be heard, by limiting the time she had to respond to allegations made against her;

(b) by permitting daughter A to give evidence and not offering the appellant an adjournment to fully respond to that evidence;

(2) whether the finding made by the Tribunal that the appellant "gave inconsistent evidence about [the mother's] current circumstances" was a "wrong finding" and, if so, whether that finding was material to the decision to appoint the NSW Trustee to manage the mother's estate.

1. In addition, the appellant seeks leave to appeal on the ground that several factual findings made, and conclusions reached, by the Tribunal were against the weight of evidence.

1. The appellant contends that the Tribunal conducted the proceedings in a way that was procedurally unfair by failing to give her a reasonable opportunity to respond to allegations made about her and her motives for seeking to be appointed as manager of the mother's estate.

1. In support of the contention that the Tribunal did not give her a reasonable opportunity to make submissions, the appellant points out that, at the start of the hearing, when the Tribunal invited her to give an overview of her position it said that she had "no more than 5 minutes" (Transcript, NCAT 2024/00017078, (Tcpt) p 6(30)). The appellant contends that it is significant that she was the only person in the hearing that the Tribunal subjected to a time limit.
2. The appellant contends that each time she spoke, the Tribunal told her "to be quick", giving as an example the following exchange:

"SNR MEMBER HAMILTON: Yeah, [appellant], we'll give you an opportunity to respond, but we do need to move on and to get [the attorney's] view, because we are almost out of time. I'll give you just a short opportunity to respond to [daughter A]."

Tcpt, p 30(17-20)

1. Later, when she asked, "Can I respond to one thing?", the Tribunal replied, "Very quickly, [appellant], then I need to ask you two more questions." (Tcpt, p 32(27-31)).
2. The appellant said that throughout the hearing she felt she was being rushed.

1. The Tribunal was required to facilitate "the just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, 36(1). While permitted "to determine its own procedure" (NCAT Act, s 38(1)), nonetheless, the Tribunal was required to observe the rules of natural justice or, as they are now more commonly referred to, procedural fairness: NCAT Act, s 38(2). Those rules include the hearing rule which is reflected in s 38(5)(c) of the NCAT Act and requires the Tribunal to take such measures as are reasonably practicable to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings". Section 38(6)(c) of that Act permitted the Tribunal to "require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases".
2. Described by Brennan J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 615 as being "chameleon-like", the hearing rule is flexible and must be considered in terms of what is fair in the circumstances of the particular case.
3. A review of the transcript reveals that at the commencement of the hearing, after identifying the issues for determination, the Tribunal proceeded to deal with those issues sequentially and invited the attorney, the mother and daughter A to comment in turn. While the appellant was the only participant whom the Tribunal directed to observe a specific time limit, it was apparent from the manner the Tribunal conducted the hearing that it expected all participants (except the mother) to use the time to give evidence and to make submissions efficiently. The Tribunal's direction that the appellant reply, "very quickly", must be seen in the context of her being given multiple opportunities to respond to evidence given and submissions made by the other participants in the hearing. Of the participants, the appellant was given the most time to speak and to present her case.
4. In circumstances where the hearing time was limited, where several significant issues were raised by the application, where, in advance of the hearing, the appellant had filed a significant amount of material in support of the application, it was entirely appropriate that in its conduct of the hearing that the Tribunal imposed limits on the amount of the time available to the appellant to present her case. Having reviewed the transcript we find that the amount of time given to the appeal to present her case was fair and adequate. We reject the contention that the Tribunal's decision to "single out" the appellant by imposing specific time limits resulted in her being given a lesser opportunity to make submissions than the other participants in the hearing.
5. The time limits imposed by the Tribunal did not deprive the appellant of a reasonable opportunity to be heard in the proceedings. The premise on which this ground rests is not established.

Failing to provide the appellant an opportunity to respond to the allegations made by daughter A

1. The appellant contends that she was taken by surprise that daughter A attended and was not given a reasonable opportunity to address the allegations made by daughter A. Daughter A supported the appointment of the NSW Trustee. In the hearing, she said that the appellant had not been acting in the mother's best interests and was motivated by "financial gain for [the appellant's] own portfolio".
2. On the day of the hearing, daughter A sought to tender a letter addressed to the Tribunal, which apparently outlined her concerns about the appellant's dealings with the mother. The Tribunal refused to admit that letter because it had not been served on the parties. However, the Tribunal permitted daughter A to give oral evidence: at [55].
3. The appellant claims the evidence given by daughter A was "unfair", specifically the allegations:

(1) that the appellant took the mother to lawyers to have her Will changed and the investment property left to her: Tcpt, p 27(6-7).

(2) that about 12 months ago, the mother confided to her that she wanted to sell the investment property, she could no longer visit the property, she had lost her driver's licence and her partner was "growing sick": Tcpt, p 27(5-6), 29(26-29).

(3) that the appellant made the mother "sign off" on her tax affairs: Tcpt, p 24(12-13).

(4) the appellant is "very manipulative": Tcpt, p 24(18-20).

1. The appellant said had she been given notice that daughter A would be giving evidence about these issues, she would have tendered evidence, including statements from other people, in response. The appellant contends that the Tribunal failed to afford procedural fairness by giving her a "short opportunity" to respond to daughter A and not offering her an adjournment to meet the allegations made by the daughter, including obtaining statement in support from third parties.

1. While the appellant may not have been aware that daughter A was to attend the hearing, she was on notice from the material filed by the attorney of the substance of the allegations daughter A made at that hearing.
2. For example, in an affidavit dated 20 March 2024, the attorney said that in April 2023 the mother sought his assistance and wanted to sell the investment property which was then being occupied by the appellant rent free; that the appellant said to him if you sell the "investment property", I'll be "left out of the will altogether"; and, that the appellant was "manipulating the mother for her own gain".
3. In his affidavit, the attorney said that the mother's three granddaughters (the appellant's daughters) told him "that they are worried about [the appellant] taking advantage of [the mother] and not looking after her best interests": at [25]. Attached to that affidavit is an email sent by the appellant to one of her daughters in which she responded to various allegations apparently made by the daughters, including that she had manipulated the mother to leave the investment property to her in the Will to the detriment of the daughters.
4. While not identical, the allegations made by the attorney and daughter A were broadly similar. While the appellant may have been taken by surprise by daughter A's attendance at the hearing, it cannot reasonably be suggested that she was 'taken by surprise' by the allegations made by daughter A, especially those concerning the mother's will and the attendant family conflict. In circumstances where in advance of the hearing she was on notice of the allegations made by the attorney, where daughter A largely repeated those allegations at the hearing, where the appellant was given an opportunity to make oral, albeit brief submissions in answer to those submissions made by daughter A, where the appellant did not request an adjournment, the contention that procedural fairness required the Tribunal to grant the appellant an adjournment, is rejected.
5. The appellant apprehends that it may have been to her advantage to have given the Tribunal statements and reports prepared by third parties in response to daughter A's allegations. She may be correct. However, in circumstances where she was on notice of the substance of those allegations before the hearing, and elected not to obtain and provide that material to the Tribunal, it could not be said that she was denied a reasonable opportunity to present her case.
6. This ground of appeal is rejected.

Ground 2: "wrong finding", finding made without evidence

1. By ground 2, the appellant contends that in finding that she "gave inconsistent evidence about [the mother's] current circumstances, as evidenced at paragraph 51(3)[sic] above", the Tribunal made a "wrong finding". The reference to "paragraph 51(3)" is plainly a typographical error because that sub-paragraph contains a summary of the evidence given by the attorney, not the appellant. We proceed on that basis.
2. In [50(3)], the Tribunal referred to the appellant's evidence about two matters:

(1) The payment of the RAD. Under the contract with the aged care facility, the mother was required to pay a RAD of $750,000.

(2) The rental status of the two residential properties owned by the mother.

1. To put in context the contention that the Tribunal made a 'wrong finding', that is, that the appellant 'gave inconsistent evidence about [the mother's] current circumstances', we reproduce below [50(3)] and the preceding sub-paragraph:

"50 In her oral evidence, [the appellant] said:

...

(2) since the application was made, [the mother's] RAD has been paid out of her cash savings and both properties are being rented out. She believes that the rental income from those properties is sufficient to pay [the mother's] ongoing aged care fees. She said she obtained independent financial advice, and her other daughters are also in favour of keeping the two properties;

(3) however, she later gave contrary evidence, stating that the RAD is not yet paid in full (the RAD is $750,000 and $200,000 still needs to be paid). She said [the mother] still has approximately $100,000 in the bank and that neither property is currently rented out. In that regard, she said the [investment] property is in need of some repair. She expects rent of $600 per week for that property and $550 per week for [the mother's] [family] home;

..."

1. Even if, as the appellant contends, it can be shown that the finding made by the Tribunal - that the appellant "gave inconsistent evidence about [the mother's] current circumstances", specifically, whether the RAD had been paid in full and whether the mother's properties were being rented out - was wrong, in itself that does not constitute an error of law. As Brennan J explained in Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 at [77], "[t]here is no error of law simply in making a wrong finding of fact".
2. However, a wrong finding of fact may constitute an error of law where a decision-maker has made a finding of fact without probative evidence to support it or drawn an inference which was not open on the primary facts: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 at [91].
3. The following questions are raised by this ground:

(1) whether the finding that the appellant gave inconsistent evidence about the payment of the RAD and the rental status of the mother's properties (the impugned finding), was made without evidence; and

(2) if so, whether the impugned finding was 'central' or 'a critical step' material to the Tribunal's decision to appoint the NSW Trustee to manage the mother's estate: see Mark Aronson, Matthew Groves, and Greg Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2021, Thomson Reuters) at 5.280, fn 218.

Did the appellant give inconsistent evidence about the payment of the RAD?

1. The only reference to the RAD in the written material filed by the mother in the proceedings below is in a document headed '[the attorney] Timeline' (the timeline). In that document, the appellant reproduced an email she claimed she sent to the attorney on 11 October 2023 in which she said, "there was no need to sell the [investment property] at this point in time and cause upset to mum and the family". In support of that claim, the appellant made several assertions, including that "the Refundable Deposit ranges from $310,000 to $450,000, which at this stage [the mother] can cover with the cash in the bank already". In the 11 October 2023 email, the appellant made no claim about whether the RAD had or had not been paid. Indeed, in October 2023, the question of whether the RAD had been paid did not arise because the mother did not become liable to pay the RAD until she moved to an aged care facility. Apparently, the mother moved to an aged care facility in April 2024.
2. In oral evidence, the appellant said, "we've paid the majority of the RAD": Tcpt, p 13(18). Later, in answer to questions from the Tribunal, the appellant said "the RAD hasn't been fully paid. The RAD is $750,000. We've paid $550,000": Tcpt, p 15(3-5). The attorney agreed with that claim: Tcpt, p 7(33-34).
3. As the above analysis reveals, the appellant did not claim in either the written material she filed in the proceedings below, or in oral evidence, that the RAD had been paid in full. There was no evidence to support the finding that the appellant gave inconsistent evidence about the RAD being paid in full.

Did the appellant give inconsistent evidence about the properties owned by the mother being rented out?

1. In oral evidence and submissions, the appellant said that in her opinion, renting out one or both of the mother's residential properties was an option to fund the balance of the RAD and the mother's ongoing expenses.
2. In the written material she filed in the proceedings, the appellant made no claim about the properties being, or not being, rented out.
3. In oral evidence, the appellant said that neither the family home nor the investment property was being rented out: Tcpt, p 14(11), p 15(8-10). She did not claim either expressly or impliedly that the properties were being rented out
4. There was no material to support the finding that the appellant made inconsistent claims about the mother's properties being, or not being, rented out.

Was the impugned finding material to the decision to appoint the NSW Trustee to manage the mother's estate?

1. Where a finding has been made without evidence, the question arises whether that finding was material to the challenged decision, in the sense that there is a realistic possibility that the decision could have been different if that finding had not been made: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [7].
2. Having decided to make a financial management order in respect of the mother, the Tribunal was required to decide whether to appoint a suitable person as manager of that estate or to commit the management of that estate to the NSW Trustee: Guardianship Act, s 25M(1). The appellant was the only person to nominate to be appointed as manager of the mother's estate.
3. While not expressly stated, it is implicit in the Reasons that the Tribunal found that the appellant was not a 'suitable person' to manage the mother's estate. At [77], the Tribunal found that the appellant had the "objective skills and experience that would enable her to do so" but went on to say:

"[The appellant's] longstanding views and strongly expressed preference to retain the [investment property], could ultimately influence her ability to make decisions that are [not] in [the mother's] best interests. In that regard, we could not be satisfied that [the appellant] could make decisions that would advance the interests of [the mother], rather than to eventually increase the assets of the family."

1. The impugned finding is contained in the immediately preceding paragraph at [76], in which the Tribunal states:

"On balance, we preferred the evidence of [the attorney], particularly in circumstances where [the appellant] gave inconsistent evidence about [the mother's] current circumstances, as evidenced at paragraph 51(3) [sic] above."

Our emphasis

1. The reference to preferring the attorney's evidence to that of the appellant is a reference to the dispute between the attorney and the appellant about whether the investment property should be sold. The attorney was of the opinion that, if need be, the investment property should be sold to fund the RAD and the mother's ongoing care: at [51(4)]. In his view, the appellant's strong opposition to selling the investment property was motivated by her self-interest in preserving that property, which she had apparently been left in the mother's Will. As the attorney saw it, "the issue is managing [the mother's] assets properly while she's alive". He was concerned that the investment property "has not been used to [the mother's] best advantage": at [51(5)].
2. The primary reason given by the Tribunal for deciding to appoint the NSW Trustee and not the appellant as the manager of the mother's estate was because it was not satisfied that the appellant "could make decisions that would advance the interests of [the appellant], rather than to eventually increase the assets of the family": at [77]. The Tribunal did not accept the appellant's claim that she would sell the property "if need be". It went on to say that it "preferred the evidence given by [the attorney]" by which we understand the Tribunal to mean, the attorney's opinion that the appellant's opposition to the sale was motivated by self-interest "particularly in circumstances where [the appellant] gave inconsistent evidence about [the mother's] current circumstances, as evidenced at paragraph 51(3) above": at [76].
3. The impugned finding was a central or a critical step to the conclusion reached by the Tribunal that it could not be satisfied that, if appointed attorney, the appellant "could make decisions that would advance the interests of [the mother]": at [77]. In turn, that conclusion was 'material' to the Tribunal's ultimate decision to appoint the Trustee, in the sense that there is a realistic possibility that that decision could have been different if that finding had not been made.
4. This ground of appeal is established.

1. Given our conclusions on the questions of law raised by the appellant, we do not need to determine whether we would also grant leave to appeal.

1. We have decided to allow the appeal and to set aside the decision made by the Tribunal under s 25M of the Guardianship Act to commit the management of the mother's estate to the NSW Trustee. This decision will come into effect once the Tribunal has reconsidered that decision. As we have noted, the appellant does not challenge the decision to make a financial management order.
2. As a consequence of our decision, it is necessary to reconsider the question of whether to appoint the appellant as manager of the mother's estate or to commit its management to the NSW Trustee. Having that question reconsidered by the Appeal Panel has the advantage of a speedy resolution of that question: NCAT Act, s 36(1).
3. Nonetheless, for the following reasons we have decided it would be more appropriate for the matter to be re-determined by the Tribunal as originally constituted, if available.
4. First, that Tribunal has had the immeasurable advantage of having heard the evidence and submissions made by the participants in the original hearing, including the mother and the attorney. There is a risk that not all parties who attended that hearing will attend the further hearing. Our impression from the Reasons and the transcript of the hearing is that the attorney felt worn down by the appellant and may not attend. In addition, given that 12 months have elapsed since the original hearing, it is possible that the mother's health and cognition have deteriorated and she is unable, or less able, to participate.
5. Second, the mother did not participate in the appeal. It is necessary that her views be taken into account. Given the extent of her disability, a separate representative should be appointed for the mother.
6. In reconsidering the question of who to appoint to manage the mother's estate, the Tribunal is to have regard to:

(1) all of the evidence filed in the original proceedings;

(2) the transcript of the hearing on 28 June 2024, tendered by the appellant in this appeal; and

(3) if the Tribunal decides it to be appropriate, any fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Tribunal at the hearing on 28 June 2024.

1. Because daughter A is not a party to the proceedings, she is not entitled to receive notice of the hearing where the question of whether to appoint the appellant as manager of the mother's estate or to commit its management to the NSW Trustee will be reconsidered. Given that daughter A's evidence may be relevant to that question, we direct the Registrar to notify her of the hearing and to invite her to attend.

(2) The question of who should be appointed as the manager of the estate of YMA pursuant to s 25M of the Guardianship Act 1987 (NSW) is remitted to the Tribunal for reconsideration in accordance with these reasons, on the basis of the evidence that was before the Tribunal at the hearing on 28 June 2024, and any fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Tribunal.

(3) Pursuant to s 45(4)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), YMA is to be separately represented in the proceedings remitted to the Tribunal.

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.