YMV v YNI

Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202; [2015] NSWCA 30

Akins v National Australia Bank (1994) 34 NSWLR 155

Collins v Urban [2014] NSWCATAP 17

C v W [2015] NSWSC 1774

IA v TA [2016] NSWCA 179

Kudrynski v Orange City Council [2024] NSWCA 33

P v NSW Trustee and Guardian [2015] NSWSC 579

SAB v SEM & Ors [2013] NSWSC 253

ZXH v ZXI [2022] NSWCATAP 269

ZXO v Public Guardian [2022] NSWCATAP 260

Pursuant to s 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 or is likely to lead to the identification of the person.

1. In November 2024, YMV (the appellant) made an application to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) requesting a financial management order be made under the Guardianship Act 1987 (NSW) in respect of his mother, YNI (the Mother). Two months later, the appellant made a further application requesting NCAT to review, under the Powers of Attorney Act 2003 (NSW) (PoA Act), the revocation by his Mother of the instrument made in 2021 in which she appointed her sister and the appellant as her attorneys.
2. Central to each application was the appellant's assertion that the Mother lacked capacity to manage her financial affairs and to revoke his appointment as her attorney. The Tribunal rejected that claim and dismissed both applications.
3. The appellant appeals from the decision to dismiss his application for a financial management order but not the decision to dismiss his application seeking review of the revocation of his appointment as the Mother's attorney.
4. The Mother opposes the appeal and submits that it is entirely unmeritorious. She says that her son's assertion that she lacks capacity to manage her financial affairs is at odds not only with expert opinion but also with his actions in requesting and accepting from her substantial gifts of money over the past 18 months.
5. The Mother's sister, YPD (the Sister), and her brother-in-law, YQA (the brother-in-law), also oppose the appeal.
6. For the reasons that follow, we declined to give the appellant leave to appeal and dismissed the appeal.

1. Contained in Part 3A of the Guardianship Act, s 25E(1) gives the Tribunal power to order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. To make a financial management order in respect of a person, the Tribunal must consider the person's capability to manage their affairs and be satisfied of the three matters specified 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. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered the meaning of the phrase "capable of managing his or her own affairs" in ss 25G (and 25P) of the Guardianship Act. He said that in interpreting that phrase the focus is the question:

"[W]hether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation".

1. The following is taken primarily from the reasons given by the Tribunal for the decision under appeal (the Reasons).
2. The Mother is in her mid-seventies. She was working as an architect in regional Victoria until about a decade ago. The appellant is her only child.
3. In 2019, following the death of her husband, the Mother moved from Victoria to live in Sydney with one of her sisters. In 2023, the Mother purchased and moved into an apartment in a low-level residential aged care facility (the Facility), where she continues to live.
4. In June 2021, the appellant executed an enduring power of attorney and appointed the appellant and the Sister as her attorneys to act jointly (together) or severally (individually) (the 2021 EPoA).
5. On 17 August 2023, the Mother executed a further enduring power of attorney, (the 2023 EPoA), appointing the Sister, the Brother-in-law and the appellant as attorneys to act jointly and severally. The Sister and the Brother-in-law accepted their appointments. The appellant did not.
6. On 23 August 2023, the Mother revoked the 2023 EPoA. On 27 November 2024, the Mother executed a new power of attorney appointing the Sister and Brother-in-law as her attorneys to act jointly.

Appellant makes first application for a financial management order

1. In January 2024, the appellant lodged the first of three applications requesting the Tribunal to exercise the power to make a financial management order in respect of the Mother. In that application, he wrote that he was concerned that the Mother was making large cash withdrawals from her bank account and was under the influence of the Sister.
2. The Tribunal dismissed that application following a hearing on 14 March 2024.
3. In reasons for that decision (the 2024 Reasons) at [27], the Tribunal recorded that the Mother's solicitor testified that the 2023 EPoA is not being used because the Mother retains mental capacity. He has custody of the instrument of appointment.
4. At [22]-[25], the Tribunal considered in some detail a report prepared by Clinical Neuropsychologist, Dr Nora Breen, dated 7 September 2023. The appellant had been referred to Dr Breen for assessment by psychiatrist, Dr Joanna Wright, who diagnosed the Mother with Alzheimer's disease in August 2023.
5. At [40]-[50], after considering Dr Breen's report and other evidence, the Tribunal concluded that it was not satisfied that the Mother was incapable of managing her financial affairs. In reaching that conclusion the Tribunal considered significant:

(1) Dr Breen's opinion that the Mother retained capacity to manage her financial affairs;

(2) the Mother's ability to engage directly with the questions it asked during the hearing and to provide accurate information about her financial affairs and other matters;

(3) the Mother's ability to give evidence about her assets, income and expenses, and significant matters involving her financial affairs in 2023, including buying into aged care accommodation, making the 2023 EPoA, and the reasons for making that instrument;

(4) the evidence of the Mother "proactively tak[ing] steps to be able to manage the consequences of any future cognitive decline";

(5) the lay evidence about the Mother's capacity to manage her affairs. The Tribunal noted that of the seven people who gave evidence in the proceedings, the appellant was the only person who held the opinion that the Mother was incapable of managing her affairs.

Appellant makes second application for a financial management order

1. In May 2024, the appellant lodged a second application seeking a financial management order in respect of the Mother. On 12 September 2024, a differently constituted Tribunal dismissed that application summarily under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), on the ground that it was "lacking in substance".

Appellant makes third application for a financial management order

1. In November 2024, the appellant made a third application to NCAT, again seeking a financial management order in respect of the Mother. Two months later, the appellant made a further application, requesting NCAT to review the revocation of the 2021 EPoA.
2. In each application the appellant claimed that the Mother lacked capacity to manage her financial affairs and to revoke the 2021 EPoA; was making large cash withdrawals ($25,000 in six months); and was being "financially exploited".
3. At [51]-[92] of the reasons for that decision (the 2025 Reasons), the Tribunal examined in detail three medical reports: a report by neurologist, Dr Jean-Pierre Halpern, dated 8 April 2021; and reports prepared by Dr Breen, dated 7 September 2023 and 13 June 2024. The only report provided to the first Tribunal was Dr Breen's 7 September 2023 report.

1. At [54]-[57], the Tribunal summarised the report prepared by Dr Halpern. We return to consider that report in further detail below.

1. At [58]-[67], the Tribunal summarised the report prepared by Dr Breen, dated 7 September 2023 (the 2023 Breen report). Dr Breen noted that in August 2021 the Mother had been diagnosed with Alzheimer's disease by psychiatrist, Dr Wright. After setting out the results of the neuropsychology tests she had administered in assessing the Mother, which included the Wechsler Memory Scale cognitive and the Addenbrooke's Cognitive Examination (ACE-III), Dr Breen said that the Mother's neuropsychological profile revealed:

"[I]mpairments in orientation, verbal memory, and verbal fluency. There was some fluctuation in [the Mother's] attention, but no impairment per se, and she demonstrated otherwise preserved cognition in the areas of working memory, language skills (apart from verbal fluency), visuospatial and constructional skills, visual memory, and executive function. [The Mother's] score of 75/100 on the ACE-III was in keeping with the comprehensive neuropsychology results.

The history, presentation, and neuropsychology results supported [the Mother's] diagnosis of early-stage Alzheimer's disease."

(Emphasis added)

1. In relation to the Mother's capacity to manage her financial affairs, Dr Breen said:

"[The Mother] understood the role of Power of Attorney and Enduring Power of Attorney and gave a reasonable account of her current financial position and assets. [The Mother] provided a consistent and detailed account of the changes she recently made to her Power of Attorney, and her reasons for the changes, at both the start and the end of the assessment, with a three-hour interval between the accounts. Formal testing demonstrated that [the Mother's] reasoning and decision-making skills remained intact in the Average to High Average range, and she was able to appropriately adapt her responses when the information, or situation, changed. Based on these findings, it was my opinion that [the Mother] retained capacity to understand and weigh up information, options, and consequences required for financial decision-making capacity.

At this stage, [the Mother] does not have a level of cognitive impairment that would require her Enduring Power of Attorney to be enacted, but she does require some support and assistance with day-to-day financial matters due to her unreliable verbal memory. [The Mother] is currently supported by [the Sister] and [the Sister's] son-in-law with paying bills and managing her financial accounts. [The Mother] was insightful regarding her memory problems and aware that she needed assistance to keep track of her money and bill payments. [The Mother] was appreciative of the current supportive family arrangement in this regard."

1. At [68]-[73], the Tribunal summarised the report prepared by Dr Breen, dated 13 June 2024 (the 2024 Breen report). That report was prepared at the request of the Mother's new solicitor who asked Dr Breen to provide an updated assessment about the Mother's "cognitive capacity to make her own decisions regarding legal matters".
2. In preparing that report, Dr Breen repeated the neuropsychological tests she had administered during her first assessment of the Mother. Dr Breen recorded that the Mother showed an improvement on the ACE-III, returning a score of 84/100 (compared to 75/100 on previous testing) with continued impairments in the domains of memory, verbal fluency, and orientation: Reasons at [70].
3. At [73], the Tribunal recorded Dr Breen's opinion about the Mother's "capacity to manage financial affairs, make own decisions, and instruct a lawyer":

"[The Mother] understood the role of a Power of Attorney/Enduring Power of Attorney and Guardian/Enduring Guardian. She gave a detailed and accurate account of her current appointments of family members in these positions, her reasons for choosing these people, and her reasons regarding her current decision to add [the Brother-in-law] as a third Guardian/Enduring Guardian. Her reasoning remained consistent and logical at the start of the assessment and at the end of the assessment, with a three-hour interval between these discussions. Formal testing demonstrated that [the Mother's] reasoning and decision-making skills remained entirely intact, and in the High Average to Superior range. Based on all these findings, it remained my opinion that [the Mother] retained capacity to understand and weigh up information, consider options and consequences, and make her own decisions. It was also my opinion that [the Mother] retained capacity to instruct a lawyer and make her own decisions regarding Power of Attorney/Enduring Power of Attorney and Guardianship/Enduring Guardianship (emphasis in original).

[The Mother's] cognitive impairment remained mild and specific to her verbal memory. She does not have a level of cognitive impairment that would require enactment of Enduring Power of Attorney or Enduring Guardian. [The Mother] has insight regarding her memory difficulties and appreciated the ongoing support provided by [the Sister] and [the Sister's] son-in-law...who assist her with day-to-day financial matters."

1. At [74]-[92], the Tribunal considered the submissions made by the appellant about Dr Breen's 2024 report. Among other things, the appellant submitted that Dr Breen's opinion was inconsistent with that expressed by Dr Halpern, which according to the appellant was that the Mother lacked decision-making capacity in 2021. The appellant contended that Dr Halpern's opinion ought to be preferred over that expressed by Dr Breen because he is a "medical doctor".
2. At [84], the Tribunal rejected the appellant's argument that Dr Breen, a neuropsychologist, was not qualified to provide an opinion about the Mother's decision-making capacity. At [91], the Tribunal concluded that the opinion of Drs Halpern and Breen were "complementary with different focuses attributable to their different disciplines".
3. At [102]-[113], the Tribunal went on to consider whether the Mother "is not capable of managing [her] affairs", a precondition to the exercise of the power to make a financial management order: Guardianship Act, s 25G(a). At [110], after detailing the evidence given by the Mother about her understanding of her financial affairs, the Tribunal found:

(1) "The medical evidence available to the Tribunal confirms that [the Mother] lives with diagnosis of Alzheimer's dementia with identified deficits in her cognitive functions.

(2) Notwithstanding the identified deficits, [the Mother's] executive functioning remains largely intact at the present time, though experiences ongoing difficulties with respect to memory recall.

(3) [The Mother] has a reasonable appreciation of her financial circumstances and is able, with appropriate formal and informal supports, to manage her financial affairs in a reasonably competent fashion.

(4) [The Mother] is able to demonstrate insight with respect to the impacts of her cognitive impairment and provide clear and unambiguous reasoning regarding her decision for [the appellant] to have no involvement in the management of her financial affairs."

1. At [111], the Tribunal concluded that it was not satisfied that the Mother lacked capacity to manage her financial affairs and as the "threshold issue" had not been established, the application for a financial management order must be dismissed.
2. At [93]-[101], the Tribunal considered the application made by the appellant to review the Mother's revocation of the 2021 EPoA. At [95], the Tribunal said that the medical evidence does not support a finding that in 2023 the Mother lacked capacity to revoke the 2021 EPoA.
3. After referring to the evidence of the appellant's "very public opposition" to those who do not share his views about the Mother's decision-making capacity, including publishing "potentially defamatory material" and lodging complaints with several regulatory bodies about the Mother's accountants, solicitors, Dr Breen and the Commonwealth Bank of Australia, at [100] the Tribunal concluded that the appellant had failed "to demonstrate a sufficient basis to warrant the Tribunal conducting a review of the revocation of the 2021 EPOA".
4. The Tribunal found the application was lacking in substance and dismissed the application.

1. As a party to the proceedings before the Tribunal, the appellant 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. The appellant does not contend that the appeal raises a question of law. Nor, 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], are we able to discern a question of law from the notice of appeal, the accompanying material and the submissions made by the appellant in support of the appeal.
3. In an amended notice of appeal filed 18 May 2025, the appellant relied on the following assertions as warranting the discretion to grant leave to appeal:

(1) The conclusion reached by the Tribunal that the reports prepared by Drs Halpern and Breen were complimentary (sic) was based on "conjecture";

(2) Dr Breen's opinion about the Mother's decision-making capacity is unreliable because:

(a) Dr Breen failed to take into account:

(i) the Mother's medical history, including her stroke in 2023, which rendered her "totally and permanently disabled", and

(ii) Dr Halpern's report, which establishes that the Mother lacked decision-making capacity in 2021.

(b) Dr Breen based her opinion on the following unfounded factual assumptions:

(i) "material falsehoods about myself", and

(ii) "impossibly improved tests results".

(c) Dr Breen's opinion is inconsistent with that expressed by Dr Halpern.

(3) "The onus is on Dr Breen to defend the integrity of her work".

(4) The Tribunal was obliged but failed to take into account the evidence that the Mother was being financially exploited.

1. In addition, the appellant seeks to rely on fresh evidence which he contends warrants leave to appeal being granted.

Ground 1: The conclusion reached by the Tribunal that the reports prepared by Drs Halpern and Breen were complimentary (sic) was based on "conjecture"

1. By this assertion we understand the appellant to contend that the conclusion reached by the Tribunal that the opinions expressed by Drs Halpern and Breen in their respective reports were complementary, lacked any proper basis.

1. In this and other grounds the appellant places great significance on Dr Halpern's report dated 8 April 2021. For that reason, we set out the details of that report. Addressed to the Mother's GP and one-half pages in length, in that report Dr Halpern said:

(1) the MRI scan of the Mother's brain, showed "mild age-related cortical cerebral atrophy and a mild degree of white matter ischaemic change" and no "disproportionate temporal lobe or hippocampal atrophy";

(2) a perfusion study [an imaging study which shows blood flow to various parts of the brain] showed "mild perfusion defects in the associated parietal cortices bilaterally extending into the precuneus bilaterally", which are "suggestive of mild Alzheimer's" (emphasis in the original);

(3) in addition, "there is a cerebral vascular component due to areas of mildly reduced cerebral perfusion disease" (emphasis in the original);

(4) the EEG was abnormal because of "occasional single sharp waves seen in the R>L frontotemporal regions at times phase reversing. There are no further instances of altered consciousness";

(5) on the ACE-III, the Mini-Mental State Examination and the Montreal Cognitive Examination, the Mother scored 82/100, 23/30 and 22/30, respectively. There was primarily ready forgetfulness and difficulties with tasks requiring abstraction and executive function;

(6) with her architecture background, the Mother's "visuospatial skills are well retained and excellent";

(7) the presence of cognitive impairment has exacerbated intense anxiety, "a feeling of depression" and "paralysed thought".

"[That the Mother] would benefit from seeing Joanne Wright, Old Age Psychiatrist, with a keen interest in circumstances, such as [the Mother] finds herself in. She could also advise regarding the introduction of a cognitive enhancer for which [the Mother] meets the PBS supported criteria. I did not wish to pre-empt an approach. ....

I have also recommended that [the Mother and the Sister] make contact with Dementia Australia. They offer practical helpful and supportive advice and run an excellent "Living with Memory Loss" course.

In the longer term, it would be helpful to engage with the Memory Clinic at HKH for ongoing advice regarding an approach to any emergent difficulties and with an excellent network of social workers, clinical neuropsychologist and other support staff available at need."

1. At [74], [75], after summarising the reports prepared by Drs Halpern and Breen, the Tribunal returned to consider the appellant's argument that the report by Dr Halpern establishes that, since 2021, the Mother lacked decision-making capacity and further that the opinions reached by Dr Halpern and Dr Breen were "contradictory".
2. At [82], the Tribunal noted that Dr Halpern did not diagnose the Mother with Alzheimer's disease but rather commented that the results of the MRI scan of her brain were "suggestive of mild Alzheimer's disease". At [83], the Tribunal noted that while Dr Halpern had administered several cognitive screening tools, he had not undertaken a "detailed assessment of [the Mother's] capacity". In addition, the Tribunal noted that Dr Halpern did not comment "on the impact of [the Mother's] cognitive impairment on her capacity to execute an enduring instrument or her ability to manage her financial affairs". At [88], the Tribunal said at its highest, Dr Halpern's report, "identifies the likelihood of a diagnosis of Alzheimer's dementia and identifies initial concerns with respect to an emerging cognitive impairment".
3. At [89], the Tribunal recorded that following Dr Halpern's assessment, the appellant was diagnosed with Alzheimer's disease and referred for comprehensive neuropsychological assessment.
4. At [91], the Tribunal concluded:

"Dr Halpern's report does not, in any way, contradict Dr Breen's reports. The reports are complimentary (sic) with different focuses attributable to their different disciplines".

1. This ground of appeal is based on the flawed premise that in his report Dr Halpern expressed the opinion that the Mother lacked decision-making capacity, specifically capacity to manage her financial affairs. As the Tribunal pointed out, Dr Halpern neither claimed that he had assessed, or formed an opinion about, the Mother's decision-making capacity.
2. Indeed, in the hearing before the Tribunal the appellant appeared to concede that point. When asked by the professional member of the Tribunal to indicate where in his report Dr Halpern indicated that the Mother lacked decision-making capacity, the appellant said:

"Yeah, so the reason why is because ... [the Mother] didn't go [to Dr Halpern] for a capacity test".

Transcript of proceedings, 7 April 2025 (Tcpt), p 9(20-21)

1. It is implicit from the recommendation that the Mother contact Dementia Australia and engage with a memory clinic, together with his observation that the MRI scan of the Mother's brain was suggestive of mild Alzheimer's disease, that Dr Halpern considered it likely that in the future the Mother's decision-making capacity may become impaired. However, it cannot be inferred from his report that when he assessed the Mother in 2021 he formed the opinion that at that time, her decision-making capacity was impaired.
2. Viewed in that light it could not reasonably be suggested that Dr Breen's opinion, formed following a more comprehensive assessment of the Mother's cognitive capacity, conflicted with the opinion expressed by Dr Halpern. It was reasonably open to the Tribunal to conclude that the opinions expressed by Drs Halpern and Breen were complementary.

1. By ground 2, the appellant contends that Dr Breen's opinion is unreliable because she failed to consider certain "critical" facts and had regard to "unproven" facts.

Mother's medical history, including her stroke in 2023, which rendered her "totally and permanently disabled"

1. The appellant contends that Dr Breen's opinion failed to consider the Mother's "existing medical history", specifically "my mother's stroke in 2023 which rendered her totally and permanently disabled".
2. There are several difficulties with this submission.
3. First, the appellant has failed to point to any evidence to support his claim that in 2023, or at any other time, the Mother suffered a debilitating stroke. That claim is inconsistent with the medical history given by the Mother and recorded by Dr Breen in each of her reports. In her 2024 report, Dr Breen recorded that the Mother said that she is independent in the activities of daily living; participates in various activities with friends at the Facility; meets and dines out with her sisters on a regular basis; maintains a regular exercise regime; volunteers for a few hours each week with a local charity; and is an avid reader. That history is consistent with the unchallenged evidence given by the Mother in the proceedings before the Tribunal: see the Mother's statement, 27 February 2025.
4. Second, apart from the claimed 2023 stroke, the appellant has failed to identify any other material part of the mother's medical history Dr Breen is said to have failed to take into account. Each report contains what appears to be a reasonably comprehensive medical history.
5. The premise on which this assertion is based is not established.

Dr Halpern's report, which establishes that the Mother lacked decision-making capacity in 2021

1. In her 2023 report, Dr Breen referred to the Mother having "undergone investigations" with Dr Halpern. However, because in her reports Dr Breen did not list the material she considered when she assessed the Mother and neither we nor the Tribunal were provided with that material, it is not possible to say whether the reference to the Mother having undergone investigations with Dr Halpern indicates that Dr Breen had been given Dr Halpern's report.
2. But, in any event, this ground is based on the flawed assumption discussed above, that when he assessed the Mother in 2021, Dr Halpern concluded that she lacked decision-making capacity.

Dr Breen based her opinion on "material falsehoods"

1. The appellant contends that Dr Breen's 2024 report is "compromised" because it is based on the "material falsehood" that the Mother's former solicitor and accountant had taken out an apprehended violence order (AVO) against him. He argued that this false information "seriously undermined the integrity" of Dr Breen's opinion.
2. To put that submission in context, we set out in full the passages from Dr Breen's 2024 report in which she refers to the purported AVOs:

"Interview with [the Mother] and [the Sister]

[The Mother] initially could not recall why she was undergoing the current assessment, but when [the Sister] reminded her that she had a new solicitor then [the Mother] recalled that her previous solicitor was retiring and her new solicitor had requested an updated assessment of her capacity to make decisions regarding legal matters. [The Sister] added that [the Mother's] previous solicitor was no longer willing to represent [the Mother] as the solicitor had been threatened, intimidated and harassed by [the appellant] to the point that the solicitor took out an AVO against [the appellant]. [The Mother's] accountant had also taken out an AVO against [the appellant] for the same reasons."

(emphasis added)

1. After setting out her opinion about the Mother's decision-making capacity, in the concluding paragraph to that report Dr Breen wrote:

"I remain concerned about the reported coercive tactics and intimidation that [the Mother's] son, [the appellant], has continued to exert over [the Mother], and the aggressive harassment he has displayed toward [the Sister]. [The Mother's] accountant and former lawyer took out AVO's against [the appellant] due to his threatening behaviour. I discussed my concerns with [the Mother] and reiterated the importance of informing trusted family members, her GP or other medical specialists, or staff at her residential care facility if she felt unsafe, threatened, intimidated, or at any risk of physical violence. [the Mother] stated that, at this stage, her priority was to retain her relationship with [the appellant], who is her only child."

1. The Mother concedes that it is not an accurate statement that her former solicitor and accountant had taken out an AVO against the appellant. However, she contends that that statement was not relevant to Dr Breen's assessment of her decision-making capacity.
2. The Mother points out that, nonetheless, the balance of the history recorded by Dr Breen about the appellant's behaviour towards her former solicitor and accountant was accurate. In statement she prepared for the proceedings below, the Mother said that her former accountant and solicitor were no longer prepared to act on her behalf because of the appellant's threatening conduct towards them.

1. The appellant has not explained how Dr Breen's mistaken understanding that the Mother's solicitor and accountant had taken out an AVO against him was relevant to, less still rendered Dr Breen's opinion unreliable. Dr Breen does not state that that history was relevant to her assessment, nor does a fair reading of the 2024 report support that inference being drawn.
2. In any event, even if it is assumed that Dr Breen's opinion about the Mother's decision-making capacity was based in part on her understanding of the appellant's behaviour towards the Mother's former accountant and solicitor, there is ample evidence to support the substance of the claim recorded by Dr Breen, that the appellant had threatened her former solicitor and accountant. The unchallenged statement tendered by the Mother for the proceedings below supports that history. Ironically, so too does the material filed by the appellant in those proceedings and in this appeal.

Dr Breen based her opinion on "impossibly improved test results"

1. The appellant contends that Dr Breen's 2024 report was based on "impossibly improved tests results". By that contention, we understand the appellant to be referring to the Mother's improved results when tested by Dr Breen in 2024 using the ACE-III.
2. The appellant asserts that it is "scientifically impossible" for a person with Alzheimer's disease to improve their score under ACE-III when tested over time. In addition, he appears to assert that by recording the Mother's improved test results, demonstrates that Dr Breen believes that Alzheimer's dementia can be cured. In the Reasons at [75] the Tribunal recorded that the appellant apparently wrote in a website:

"Breaking! Alzheimers dementia can be reversed by Dr Nora Breen and Macquarie University Health!

Incredible news! The brilliant Dr Nora Breen and Macquarie University Health have achieved what was thought impossible, reverse the devastating regression of Alzheimer's dementia!"

"[The Mother's] responses on a self-report mood questionnaire indicated a moderate level of depression. She did not report elevated level of anxiety or stress. At the previous assessment [the Mother] had reported a moderate level of depression and anxiety and a mild level of stress".

"[The Mother's] **score of 84/100 on the ACE-III dementia screening tool remained below the dementia cut-off ( The history, presentation, and cognitive profile remained consistent with the diagnosis of early-stage Alzheimer's disease. It is possible that the mild improvements in some aspects of [the Mother's] cognition compared to the previous assessment are secondary to the improvement in her self-reported anxiety and stress compared to the previous assessment."

(Emphasis added)

1. Dr Breen gave a reasoned and plausible explanation for the "mild improvement" in the Mother's score on ACE-III testing. In the appeal, the appellant failed to acknowledge, less still engage with that explanation. Furthermore, the appellant's assertion that the Mother's improved 2024 ACE-III score is "scientifically impossible" is unsupported by authority or expert opinion.

Ground 3: The onus is on Dr Breen, not the Tribunal to defend the integrity of her work

1. This ground is not easy to understand but appears to be a complaint about Dr Breen. Its relevance to the appeal is unclear.

Ground 4: The Tribunal was obliged but failed to take into account the evidence that the Mother was being financially exploited

1. By this ground, we understand the appellant to contend that the Tribunal was obliged but failed to consider the evidence said to establish that the Mother was subject to financial abuse by her lawyers and her Sister.
2. The primary difficulty with this ground is, as he conceded in the appeal, that the appellant did not give the Tribunal any evidence to support his claim that the Mother was subject to financial abuse. In those proceedings, the focus of his submissions was the Mother's decision-making capacity.
3. In the hearing before the Tribunal, the appellant conceded that he did not have any evidence to support his claim that the Mother was subject to financial abuse. He told the Tribunal that the reason he requested his application for a financial management order to be adjourned was to "allow me the ability to collect the evidence necessary to make [that] application": Tcpt, p 2 (48-49). Later, he said that the reason he made the application seeking review of the revocation of his appointment as attorney was "so finally I can look at my mother's bank accounts, and I can actually see where the money is being stolen ... I need to see what's going on inside my mother's bank accounts": Tcpt, p 6 (31-33).

1. The appellant seeks to rely on "fresh evidence" which he contends warrants the exercise of the discretion to grant leave to appeal. In the amended notice of appeal, he said that evidence establishes the following claims:

● "My mother required attorneys after suffering a devastating stroke 2023 which sadly rendered my mother totally and permanently disabled

● Appointed attorney is breaching the POA they signed.

● My good faith efforts to mediate with my mother and her legal representation to AVOID having to attend a NCAT hearing.

● My mother's good faith efforts to mediate with myself and her legal representation to AVOID having to attend a NCAT hearing.

● The now Requirement under section 25G that my mother needs a financial manager to be appointed to her.

● Conduct from my mother's legal representation which is inconsistent with current professional standards."

1. The fresh evidence said by the appellant to support the above claims consisted of a bundle of documents, which contained submissions and assertions addressing a wide range of issues, together with material, including emails and SMS messages between the appellant and the Mother, the Mother's former accountant and current and former solicitor and the Sister.
2. The appellant appears to contend that this material establishes that the Sister is not a person of integrity; that the Sister lied to Dr Breen; that he made good faith efforts to avoid an NCAT hearing; that the Mother's solicitors have engaged in "predatory behaviour" and have attempted to frustrate his relationship with the Mother; that he is a fit and proper person to manage his Mother's affairs.

1. The existence of fresh evidence may warrant the exercise of the discretion conferred by s 80(2)(b) of the NCAT Act to grant leave to appeal, or to deal with the appeal under s 80(3) of the NCAT Act by way of a new hearing.
2. Generally, fresh evidence must satisfy three conditions: it could not have been obtained with reasonable diligence in the original proceedings; there is a high degree of probability that if admitted there would have been a different result in those proceedings; and, the evidence must be credible: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, Clarke JA (Sheller JA agreeing); Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202; [2015] NSWCA 30 at [68] (Sackville AJA).
3. The evidence on which the appellant seeks to rely was available to him in the proceedings before the Tribunal. In the appeal he did not provide a reason for failing to provide that material to the Tribunal.
4. But more to the point, because the material on which the appellant now seeks to rely has no apparent relevance to the legal and factual issues the Tribunal was required to decide, it is highly improbable that there would have been a different result in the proceedings below if that material had been available to the Tribunal.
5. That material does not constitute fresh evidence. Nor does it warrant the exercise of the discretion to grant leave to appeal, or to deal with the appeal by way of a new hearing.

1. 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 ordinarily it is appropriate to grant leave to appeal only in matters that involve:

"(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed".

(Citations omitted)

1. Where, as here, the decision under appeal was made by the Guardianship Division of NCAT, in exercising the discretion to grant leave, the protective character of the jurisdiction exercised by that Division must be considered: SAB v SEM & Ors [2013] NSWSC 253 at [10]; C v W [2015] NSWSC 1774 at [44]- [46]; ZXH v ZXI [2022] NSWCATAP 269 at [76]; ZXO v Public Guardian [2022] NSWCATAP 260 at [105].

1. The primary argument made by the appellant in support of his application for leave to appeal is that the Tribunal erred in concluding that it was not satisfied that the Mother lacked capacity to manage her financial affairs.
2. The Mother opposes the appellant being given leave to appeal and points out he has failed to specify the basis on which he seeks leave. In essence, he is requesting an opportunity to re-run his case before the Tribunal. She asserts that the decision under appeal was fair and reasonable and consistent with the weight of evidence. The Sister and Brother-in-law agree.

1. The appellant has failed to identify any of the factors in Collins which might warrant the exercise of the discretion to grant leave in this appeal. The conclusion reached by the Tribunal that it was not satisfied that the Mother lacked capacity to manage her financial affairs could not be said to be unreasonably arrived at or clearly wrong. Nor could it be said that the Tribunal arrived at that conclusion by conducting the fact-finding process in an unorthodox manner or in a way likely to produce an unfair result. The proposed appeal raises no issue of general importance or matters of principle. Nor does it involve a clear injustice such that it would be in the interests of justice to revisit the decision.
2. In addition, the appellant does not suggest that the protective character of the jurisdiction exercised by the Guardianship Division is relevant to his application for leave to appeal.
3. At best, the grounds advanced by the appellant represent an expression of disagreement, based on his subjective belief, with the conclusion reached by the Tribunal that it was not satisfied that the Mother lacked capacity to manage her financial affairs. The proposed appeal is entirely unmeritorious and has no reasonable prospects of success.
4. Leave to appeal is refused.

(3) Any party seeking to make an application for costs of the appeal must file and serve that application (the cost application), together with evidence (if any) and written submissions within ten (10) working days after publication of these reasons for decision.

(4) Any party opposing or supporting the cost application must file and serve evidence (if any) and written submissions in response, within a further ten (10) working days.

(5) The parties are to include in their submissions their views as to whether the issues for determination in relation to the making of any order for costs on the appeal can be adequately determined on the basis of the written material lodged with the Tribunal, in the absence of the parties and without a hearing, under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

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.

08 December 2025 - Formatting on coversheet corrected