YPN v NSW Trustee and Guardian

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Edwards v Noble (1971) 125 CLR 126; [1971] HCA 54

Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378

Gallo v Dawson [1990] HCA 30

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Holt and Anor v Protective Commissioner (1993) 31 NSWLR 227

Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713

Kudrynski v Orange City Council [2024] NSWCA 33

Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

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

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Susan Elizabeth Parker v Margaret Catherine Higgins and Ors [2012] NSWSC 1516

The publication or broadcast of the name of any party or witness is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

Note: A reference to 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.

1. By Notice of Appeal filed on 29 August 2025, YPN (as we shall refer to the Appellant to protect against publication of his identity in accordance with the requirements of s 65 of the Civil and Administrative Act 2013 (NSW) (CAT Act)) appealed against orders made by the Guardianship Division of the Tribunal pursuant to the provisions of the Guardianship Act 1987 on 4 July 2025 appointing the NSW Trustee and Guardian (NSWTAG) as financial manager of the estate of YRY (as we shall refer to her to protect against publication of her identity). YRY is YPN's mother.
2. The Notice of Appeal appears to have been filed out of time. The Appellant has not formally sought to extend the time for filing his Notice of Appeal. It is less than clear that YPN, who has represented himself in the appeal, and was assisted by an interpreter, is aware that his appeal was commenced out of time. NSWTAG has filed no documents in the appeal, and has not appeared at the hearing of the appeal.
3. The Appeal Panel proceeds on the basis that, if the Appellant demonstrates appealable error, time for filing the Notice of Appeal will be extended. There is no apparent or suggested prejudice to any person in doing so. The grounds articulated in YPN's appeal notice, which was served on NSWTAG identify the basis of his case. To fail to treat YPN as impliedly seeking an extension of time to appeal would be unjust in the present circumstances. If YPN does not demonstrate appealable error, time to appeal will not be extended. Doing so would have no utility.
4. The Appellant's sister to whom we shall refer as YQO, who participated in the hearing at first instance, has been on notice of the hearing date of the appeal but has not appeared.
5. YRY did not appear at the hearing of the appeal. On 5 September 2025, the Appellant forwarded to the Registry a statement by YRY of 6 July 2025, informing the Tribunal that "I don't want the NSW Trustee to manage my money", for reasons which do not assume present significance and reiterating that, "As I said during the Tribunal hearing, I want my son to be my financial manager" and that, for reasons which she outlined, "I have a lot of trust in my son. The document concluded, "I hope you change the order and reappoint my son (YPN) to be my finance manager". Having regard to the undisturbed findings of fact of the Tribunal at first instance, though taking it into account, the Appeal Panel can give only very limited weight to YRY's statement. YRY's statement is not materially inconsistent with any relevant finding of fact recorded by the Tribunal at first instance.
6. Although there has been no appearance by or on behalf of NSWTAG at the hearing of the appeal, or any reply to the Notice of Appeal or submissions filed by NSWTAG, and the case could be considered undefended, for leave to be granted and the appeal to be allowed, YPN must establish a recognised basis for granting the relief which he seeks, or needs to seek.

1. In the event that his appeal is successful, YPN seeks an order that he be appointed YRY's financial manager of his mother's estate in lieu of NSWTAG. The Appeal Panel explained to YPN, and he confirmed, that, if he were successful, NSWTAG would still have the authority to oversee and direct his management of YRY's estate. In the circumstances, it is unnecessary to have regard to a number of findings made by the Tribunal at first instance, as no part of the Appellant's case involves challenges to those findings. YPN's challenge is with respect to the identity of YRY's financial manager, not whether one should be appointed. The only candidates for appointment have been ,and remain, YPN and NSWTAG.
2. The Tribunal at first instance was concerned with an application filed by the Appellant, on or about 6 May 2025, to review an Enduring Power of Attorney (EPOA) which YRY purported to make in favour of her daughter, the Appellant's sister, YPN on 10 April 2025. YPN did not oppose her brother's review application.
3. Although the Tribunal referred to her as being 90 years of age, the application to review the EPOA suggested that YRY was born on 21 May 1934, and was thus 91 years of age at the date of the Tribunal's decision. Nothing turns on the precise date of YRY's birth.
4. The Tribunal decided, pursuant to s 36(1) of the Powers of Attorney Act 2003 (NSW) (the POAA) to carry out a review of the EPOA. Having done so, the Tribunal decided under s 36(2) of POAA not to make an order with respect to the EPOA but, pursuant to s 37(1) of the POAA, to treat the application for review as an application for a financial management order pursuant to Part 3A of the Guardianship Act 1987 (NSW) (Guardianship Act). Having done so, for the reasons it recorded, the Tribunal decided that YRY's estate should under to the management of NSWTAG.
5. The background to the proceedings was recorded, accurately, by the tribunal at first instance and requires only brief recitation. At the time of the Tribunal's decision, YRY was living with and had lived with her daughter, YPN, for three months. YRY had previously lived with the Appellant for 35 years. The Tribunal recorded that there was "some conflict" between YRY's adult children. That finding assumes critical significance in the appeal. YRY's recent residence with YPN was not suggested, or found to have been material to any sibling "conflict".
6. At the times of the hearing at first instance, and the hearing of the appeal, YRY was in respite care in a residential aged care facility (RACF) in suburban Sydney. YPN proposes that, albeit on a different financial basis, YRY will continue to live there. YRY does not oppose that. YPN has never opposed that.
7. The Tribunal identified what it had to consider, and did so accurately. The Tribunal considered whether the Appellant had standing to make the application and found, correctly in the Appeal Panel's view, that he did so.
8. Under the heading "Should the Tribunal conduct a review?" the Tribunal considered matters which were relevant to the circumstances surrounding the making of the EPOA by reference to s 36 of the POAA and the decision in Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516. No part of the present appeal involves any challenge to either the Tribunal's decision to conduct a review, the reasons for doing so, or the decision of the Tribunal, for reasons which were amply exposed, to decline to make an order under s 36 of the POAA, but rather [28] to "treat the matter as an application for a financial management order under the Guardianship Act pursuant to s 37 of the POAA".
9. Under the heading "Financial management order" the Tribunal addressed [30] mandatory relevant considerations with respect to making a financial management order, and did so accurately. Consistent with those mandatory relevant considerations, the Tribunal addressed [31]-[40] whether YRY was incapable of managing her affairs. The Tribunal concluded [41] that YRY was not capable of managing her financial affairs for the reasons which it recorded. The Tribunal then addressed whether there was a "need for a financial manager?". The appeal does not involve the findings of fact which were made in relation to that topic or the decision of the Tribunal to make a financial management order or the reasons [51] for doing so.
10. The Tribunal's reasons with respect to "who should be appointed as financial manager?" are the focus of the Appellant's challenges to the appointment of NSWTAG as YRY's financial manager. The Tribunal recorded [53], correctly that, in appointing a financial manager the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Guardianship Act. The Tribunal referred [54], correctly, to s 25M of the Guardianship Act which provides that the Tribunal may appoint a "suitable person" to manage the person's estate or may commit the management of the estate to NSWTAG.
11. The Tribunal referred [55] to the decision in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, in which it was accepted that the dominant consideration in making orders with respect to financial managers is the welfare of the person whose estate would be subject to financial management. As the Tribunal recognised, in the present circumstances that exercise involved balancing the advantages and disadvantages of having YPN, a family member, or the NSWTAG appointed as YRY's financial manager.
12. The Tribunal identified [56] what ultimately appears to have been the factor which predominantly, or potentially exclusively determined who should be appointed as YRY's financial manager. The Tribunal recorded, accurately, that the NSWTAG was independent, dispassionate and neutral in the context of "situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates" and the reputation and security provided to an estate against loss or damage. The Tribunal then identified [57] the advantages of the appointment of a family member, including "more economic management of smaller estates", "greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers".
13. The Tribunal referred to the observations of the Court in Holt with respect to conflicts of interests and duty which may be "more apparent than real" and should "not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate". The Tribunal recorded the caveat that when appointing a family member it must be satisfied that the estate income and assets would be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family. The Tribunal referred to the observations of Hallen ASJ (as his Honour then was) in Application by AMAM; re SAM [2011] NSWSC 503 that, although not exhaustive, the matters which required consideration included, the proposed manager's "character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests" were mandatory relevant considerations.
14. The Tribunal then engaged with "conflict between family members". The Tribunal found that there were "conflicting views among the family members as to the appropriate way of dealing with (YRY's) and the family's, financial affairs". The Tribunal recorded that the Appellant's view "appeared to be" that his sister's actions in procuring, or allowing herself to receive a gift of $250,000 from the mother's $600,000 estate "would jeopardise (YRY's) capacity to live in a suitable residential aged care facility". The Appellant's submissions to the Appeal Panel confirm that the Tribunal's recording of his view of the "gift" was correct. Apart from the "gift", no other issue or topic involving family conflict was found by the Tribunal.
15. The Tribunal recorded that the Appellant's sister, YPN, had informed it that she retained the $250,000 which "could be transferred back". Although not expressly stated, in context, the Tribunal can be seen as having made a finding in those terms.
16. The Tribunal referred [62] to YRY's somewhat equivocal statements with respect to what she wished to have happen to the $250,000 "gift". The Tribunal described YRY's adult children as being "in conflict" a proposition which the Tribunal said [63] was not disputed, although both children "agreed, however, that they were still a family". The Tribunal recorded [64] YRY's statement that the Appellant "had always made such (financial) decisions for her".
17. The critical finding by the Tribunal [65] was:

"We took into account the considerations under s 4 of the Guardianship Act. In particular, we considered the interests of YRY in not being subject to any financial abuse and the interests of making sure that her family and cultural and linguistic background and relationships were preserved. The conflict between (YRY's) children caused her distress and we were satisfied that it was not in her interests for this to continue indefinitely. For these reasons, we considered that it was in (YRY's) best interest for an independent financial decision maker to be appointed."

1. The principles governing the appeal are not in doubt and require only brief reiteration. The Appellant appeals as of right on a question of law (CAT Act s 80(2)(b)). In Micallef v ICI Operations Australia Pty Ltd [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 hearing ordered (Stead v State Government Insurance Commission (1986) 161 CLR 141 [1986] HCA 54).
2. The Appellant was obliged to identify with reasonable precision the questions of law said to be raised by the appeal (Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; Schwartz Family Co Pty Limited v Capital Carpets Pty Limited [2017] NSWCA 223). The Appeal Panel does not however adopt an overly legalistic approach to the articulation of grounds of appeal in cases where an appellant is in person, particularly where the interests of vulnerable or protected persons are concerned (Kudrynski v Orange City Council [2024] NSWCA 33). At least with respect to what is ultimately the most substantial challenge mounted by the Appellant, his grounds identify recognised questions of law. The Appellant has not sought leave to appeal.
3. To the extent that the Appellant may require an extension of time for the filing of his Notice of Appeal, the decision of McHugh J in Gallo v Dawson [1990] HCA 30 is instructive. His Honour recorded [2] that the discretion to extend time to appeal "can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time". His Honour further observed that "It is always necessary to consider the prospects of the appellant succeeding in the appeal, when time to appeal is sought." His Honour referred to the "vested right" of the respondent to "retain the judgment". The Respondent to this appeal, NSWTAG, has not appeared or participated in the appeal to assert any rights to "retain" the decision at first instance. McHugh J (at [3]) discussed the relevance of the failure to lodge a Notice of Appeal within time. The Appellant's delay in filing his Notice of Appeal is minimal and neither NSWTAG nor any other interested person suggests that any prejudice could arise if time to appeal was extended. The Appeal Panel proceeds on the basis that, if the Appellant demonstrates merit, time for the filing of his Notice of Appeal will be extended and his appeal will succeed.

1. The Appellant filed detailed grounds of appeal and 10 pages of carefully articulated and comprehensively agitated challenges to the decision of the Tribunal at first instance, to which he attached a number of supporting documents.
2. Ground 1 of YPN's Notice of Appeal asserted that "The Tribunal's decision to appoint NSW Trustee and Guardian (TAG) as financial manager was based on several factual inaccuracies and misinterpretations, which materially affected the outcome". As the authorities referred to earlier confirm, if successful, this challenge would demonstrate error on a question of law.
3. YPN set out in some detail a number of reasons why he submitted that the Tribunal had erred in the manner asserted by the ground. The Appellant's submission that "Tribunal reasons [63] stated that "Both adult children ... agreed that they were in conflict" ... oversimplifies the situation. Prior to the financial dispute, family relations were peaceful and cooperative". YPN referred to the Tribunal's findings [61] that the $250,000 received by YPN could be transferred back, "reflecting a shared understanding that the funds were intended for (YRY's) nursing home bond". YPN further submitted that "This family consensus was overlooked by the Tribunal". He further submitted that revocation of YPN's EPO was "a protective measure, not a reflection of general family dysfunction" and served "as complementary evidence of (YRY's) intent to avoid further conflict and safeguard her financial interests".
4. The Appeal Panel finds merit in this ground. As the reasons of the Tribunal at first instance record, the Appellant had for 35 years managed YRY's financial affairs. Neither YRY nor her daughter, YPN, asserted that he had done so in other than a satisfactory manner or in any way that was in conflict with YRY's best interests. Whilst the Tribunal accurately recorded the Appellant's view of his sister's actions with respect to the $250,000, the Tribunal's finding, at [61] that YPN was willing and able to return the monies overshadowed the significance of the Appellant's views of how his sister came to receive those funds.
5. The Tribunal referred [65] to the interest of YRY "in not being subject to any financial abuse". There is no suggestion that the YPN had ever, in 35 years, been, or was likely in the future to be the perpetrator of financial abuse of YRY. The Tribunal said that it took into account "the interests of making sure that (YRY's) family and cultural and linguistic background and relationships were preserved" a later ground of the Appellant's Notice of Appeal, which the Appeal Panel finds has merit, takes issue with that finding.
6. The Tribunal's finding that it was "not in (YRY's) interests for this (the conflict between her children) to continue indefinitely" was, with respect to the Tribunal at first instance, erroneous having regard to the Tribunal's findings at [61] with respect to the repayment of the $250,000. In the absence of any other finding supportive of sibling conflict, and none was suggested, the Tribunal erred by materially overstating the nature and scope of any sibling conflict, and, contrary to its findings at [61], finding that any such conflict was likely to "continue", much less do so "indefinitely". Although not articulated as a ground of appeal, with respect to the Tribunal at first instance, it is arguable that the reasons for the decision were inadequate (Resource Pacific) and, in the manner we have indicated, inconsistent with the evidence.
7. The Appeal Panel is satisfied that the decision of the Tribunal at first instance was erroneous on a question of law in that it was based on erroneous findings of material fact. The Tribunal's findings with respect to the history of the Appellant's financial management of YRY's financial affairs, over a period of three and a half decades, the absence of complaint about such management, by YRY or the Appellant's sister YQO, and the reality that the "conflict" between the siblings found by the Tribunal was, on the findings of fact it made, likely to be resolved by repayment of the monies if and when the Appellant was appointed YRY's financial manager, rendered its ultimate, and critical finding plainly wrong (Edwards v Noble (1971) 125 CLR 126; [1971] HCA 54).
8. In view of the merit of this challenge, time should be extended to permit the Appellant to appeal and the appeal allowed on in reliance on it.
9. Although, having found ground 1 made out, it is strictly unnecessary to do so, it is appropriate to consider ground 3, which is articulated as a failure to "give proper weight to YRY's expressed wishes". The difficulties which confront so-called "weight" challenges are not in doubt and were summarised by Stephen J in Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63.
10. In support of ground 3, YPN submitted that the Tribunal at first instance "did not adequately consider (YRY's) clearly expressed and documented preference for her son to manage her financial affairs. This omission undermines the principle of autonomy and the statutory requirement to reflect the principal's wishes".
11. Although the Tribunal said [65] that it considered the interests of YRY in "making sure that her family and cultural and linguistic background and relationships were preserved" the Appeal Panel is not persuaded that it did so. As the authorities establish, a court or tribunal stating in its reasons that it took a matter into consideration does not preclude examination of whether that in fact occurred and, whether the primary decision maker had given proper genuine and realistic consideration to the merits of the case (Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713) or engaged in active intellectual process in giving consideration to them (Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107). The brevity of the Tribunal's reasons with respect to this mandatory relevant consideration persuade the Appeal Panel that, although expressed in terms of "weight", this ground is more appropriately regarded as a failure to give the evidence with respect to YRY's wishes and cultural attachments proper, genuine and realistic consideration.
12. Rightly, the Tribunal did not find any "disqualifying conduct" by YPN. Although only limited weight needed to be afforded to them, YRY's wishes in that regard were clear, and needed to be considered, particularly as YPN had managed her finances without complaint for the 35 years during which YRY lived with him. YQO did not resist the EPOA in her favour being set aside and a financial management order being made. Nor did she resist her brother being appointed as YRY's financial manager.
13. In his submissions with respect to this challenge, the Appellant said "TAG didn't communicate directly with (YRY). Every interaction requires an interpreter and scheduled appointments, which are inefficient and costly. (YRY) is Mandarin speaking, and TAG's inability to engage with her directly has led to confusion and isolation". The Appellant further submitted that "TAG has not demonstrated any understanding of (YRY's) personal, cultural or financial priorities. There has been no consultation regarding her nursing home arrangements, no explanation of how her funds would be managed, and no responsiveness to her evolving needs".
14. The findings of the Tribunal at first instance create no impediment to acceptance of the Appellant's contentions with respect to his mother's linguistic and cultural interests, and contain numerous findings which are supportive of the Appellant being well able to preserve YRY's family, cultural and linguistic heritage and relationships. The Appeal Panel is satisfied that, notwithstanding the Tribunal's statement, it did not give proper, genuine and realistic consideration to the need to preserve YRY's family and cultural relationships in the context of her cultural and linguistic background, YRY's views, and the history of the Appellant's role in those respects. By failing to do so, the Tribunal erred, and constructively failed to exercise jurisdiction.
15. For the foregoing reasons, were it necessary to do so, the Appeal Panel would extend time to appeal ground 3.

1. The Appellant having demonstrated error on a question of law, time to appeal should be extended, and the appeal allowed. It is appropriate to make an order appointing the Appellant as YRY's financial manager. The Appellant established, and the Tribunal at first instance found that he had the qualifications and experience to be YRY's financial manager, and had appropriately managed her financial affairs for 35 years. The Appeal Panel explained to the Appellant the effect of such an order and the ongoing oversight role of the NSWTAG if such an order were made. The Appeal Panel is satisfied that the Appellant understood those matters.

(1) That time to appeal against the orders of the Tribunal of 4 July 2025 is extended to 5pm on 29 August 2025.

(3) Pursuant to s 81(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) order 2 of the orders of 4 July 2025 are set aside and, in lieu thereof, it is ordered that the Appellant be appointed as financial manager of the estate of YRY subject to the directions and authorities of the New South Wales Trustee and Guardian.

(4) The publication or broadcast of the name of any party or witness is prohibited. This order is made under s 64(1)(a) 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.