YQM v NSW Trustee and Guardian

Chalik v Chalik [2025] NSWCA 136

Collins v Urban [2014] NSWCATAP 17

Dokas v Gallagher (No 2) [2024] NSWCA 236

Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154

Donohoe v Albulario [2025] NSWSC 9

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

GTC v NSW Trustee and Guardian and GWH and GXF [2025] NSWCATAD 174

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Kudrynski v Orange City Council [2024] NSWCA 33

LPTD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12

McNeill v Clarence Valley Council [2025] NSWCATAP 184

Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26

NSW Trustee and Guardian v FYV [2024] NSWCATAP 243

Pak v Ka Yau Chan [2021] NSWCATAP 85

Rahman v Rahman [2025] NSWCA 219

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

YHY v YHZ [2024] NSWCATAP 117

YKW v Public Guardian [2025] NSWCATAP 112

Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85

First Respondent (Solicitor for NSW Trustee and Guardian)

Under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), with the exception of officers of government agencies the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in the proceedings is prohibited.

Note: The name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.

GTC v NSW Trustee and Guardian and GWH and GXF [2025] NSWCATAD 174

1. Since April 2021, the NSW Trustee and Guardian (the NSW Trustee) has been managing the estate of a 95-year-old woman (referred to, in these reasons, as the protected person). In September 2024, the NSW Trustee decided to sell the protected person's house (her main asset) in order to fund her ongoing expenses and care and support needs (the Sale decision).
2. The protected person has three daughters. One of those daughters, the appellant, opposes the Sale decision. The other two daughters (the second and third respondents) support the Sale decision, so that the net sale proceeds will be available to fund the ongoing care and support needs of their mother.
3. Following an application made by the appellant for administrative review of the Sale decision on 19 November 2024, the Administrative and Equal Opportunity Division (AEOD) of the NSW Civil and Administrative Tribunal (NCAT) affirmed the NSW Trustee's decision to sell the house.
4. The appellant appeals from that decision. The NSW Trustee (first respondent) opposes the appeal and says that the decision under appeal is the correct and preferable decision. The NSW Trustee emphasises that having access to liquid funds (from the sale of the property) furthers the welfare and interests of the protected person which must be given paramount consideration. The liquid funds are required to fund her ongoing care and expenses, repay liabilities and provide for current and future expenditure.
5. The second and third respondents also oppose the appeal. They agree with the submissions made by the NSW Trustee, and say that their mother does not have any funds and her house needs to be sold.

1. The following facts are largely taken from the decision under appeal and the Sale decision.
2. On 22 April 2021, the Guardianship Division of NCAT committed the estate of the protected person to management under the NSW Trustee and Guardian Act 2009 (NSW) (the Trustee Act). The NSW Trustee was appointed to manage the estate.
3. In a Statement of Advice dated 22 March 2022 (the Statement of Advice), the NSW Trustee's Financial Planning Unit (the FPU) recommended that the protected person's house be sold. Based on then current income and expenditure calculations, the protected person had insufficient cash to fund her then current (and future) cashflow shortfall, with the FPU stating that "liquidity is a significant issue". After selling costs, the net sale proceeds of approximately (at that time) $1.33 million could be used to pay the then current 12 months' shortfall of $22,000 and repayment of debts of approximately $33,600. The remaining financial assets of approximately $1.274 million would fund the annual cashflow shortfall of $41,700 over the protected person's median life expectancy.
4. In the Statement of Advice, the FPU also explored alternative options to the sale of the property, including renting the property.
5. In written reasons given for the Sale decision dated 17 September 2024, the delegate of NSW Trustee stated that, to meet care and support needs, and resolve all outstanding debts and liabilities, it was necessary to sell the property; to retain 70% of sale proceeds in NSWTG Trust Account for the protected person, and invest 30% of retained funds in NSWTG Income Fund. The NSW Trustee advised by letter dated 18 September 2024 that "after exploring all available options, ... the best way to help ensure [the protected person's] financial future is to sell her property".
6. The decision to sell the property was stated to have been made with adequate consideration of s 39 of the Trustee Act. That decision was made for the following reasons: the protected person is no longer residing in the property; she requires finances to provide for her ongoing care and support needs; sale of the property will result in reducing expenditure on repairs, maintenance, utilities and other liabilities; the protected person does not have sufficient available funds to meet current expenditure and liabilities; and maintaining the property is not affordable for the protected person.
7. At the request of the appellant made under s 53 of the Administrative Decisions Review Act 1997 (ADR Act), the NSW Trustee conducted an internal review of the Sale decision and affirmed that decision. In reasons for that decision dated 24 October 2024, the delegate of the NSW Trustee who conducted that review noted that the protected person is 94 years of age and currently residing with the appellant (i.e. not in the protected person's house). The protected person had previously lived at the property she owned until a serious event occurred, reportedly that in March 2020, she jumped from a window of that residence due to experiencing paranoid delusions and hallucinations, after which she was admitted to hospital under the care of the Older People's Mental Health Service. She was diagnosed as having moderate dementia with psychosis. Medical reports noted that she had been experiencing paranoia for 5 to 6 years prior to 2020, and since the death of her husband in 2016, she has also experienced a general functional and cognitive decline.
8. In evaluating the current financial state of the protected person, the internal review noted a current financial deficit and stated that this "is not a sustainable position for [the protected person], considering her current costs and the likelihood of increasing care and support needs due to age and circumstances".
9. On 19 November 2024, the appellant lodged an application with the AEOD of NCAT, seeking administrative review of the Sale decision. The appellant submitted that in circumstances where the protected person had consistently expressed her opposition to the sale of the house, the correct and preferable decision was to retain the property. On 11 July 2025, NCAT heard that application and reserved its decision. On 21 July 2025, NCAT affirmed the Sale decision: GTC v NSW Trustee and Guardian and GWH and GXF [2025] NSWCATAD 174 (the Reasons).

1. As a result of the decision made on 22 April 2021 by the Guardianship Division of NCAT to commit the Protected person's estate to the management of the NSW Trustee, the NSW Trustee has, and may exercise, all functions necessary and incidental to the management and care of that estate: Trustee Act, s 56.
2. The Sale decision was a decision made in the exercise of the NSW Trustee's functions under Div 1 of Pt 4.5 (Management of estates by NSW Trustee) of the Trustee Act. An "affected person" may apply to NCAT for administrative review of a decision made by the NSW Trustee under that Division: Trustee Act, s 62(1). An "affected person" includes any person whose interests are, in the opinion of the NSW Trustee, "adversely affected by the decision": Trustee Act, s 62(2).
3. In determining the appellant's application for administrative review of the Sale decision, NCAT was required to make the correct and preferable decision having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1). In undertaking that task, NCAT may exercise all of the functions that are conferred or imposed by any relevant legislation on the NSW Trustee: ADR Act, s 63(2). The powers available to NCAT on review were to affirm, vary or set aside the Sale decision and make another decision in substitution for that decision or set aside the Sale decision and remit the matter for reconsideration by the NSW Trustee: ADR Act, s 63(3).
4. In Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 (Youssef), NCAT considered the nature of a review under s 63 of the ADR Act. Citing Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154 at [21], NCAT emphasised that a review under s 63 of the ADR Act is a "review on the merits" and is "not concerned ... whether there was challengeable error in the process or reasoning" by the original decision-maker. Rather, the role of NCAT is to "decide what the correct and preferable decision is having regard to the material before it" which includes "any relevant factual material". The review is to be conducted without any presumption as to the correctness of the decision: Youssef at [24]. See also NSW Trustee and Guardian v FYV [2024] NSWCATAP 243 at [27]- [31].
5. Section 39 of the Trustee Act instructs the NSW Trustee (and, on review, NCAT) when exercising functions under Ch 4 of that Act (Management functions relating to persons incapable of managing their affairs), to observe the following principles (the section 39 principles):

39 General principles applicable to Chapter

...

(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.

1. The appellant has a right to appeal from 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: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), ss 32(1), 32(4), 80(2)(b).
2. This appeal is one under s 80(1) of the NCAT Act, which involves a rehearing on the materials before NCAT at first instance to determine whether the decision under appeal is the result of some legal, factual or discretionary error.
3. An appellant is required to identify with precision the question or questions of law said to be raised by the appeal. Absent leave to appeal, the question of law is the subject matter of the appeal, and the ambit of the appeal is confined to it. We adopt the approach that a question of law in the context of s 80(2)(b) of the NCAT Act should be interpreted similarly to "a question of law alone" or a "pure question of law". A pure question of law excludes questions of mixed fact and law and questions of fact (at least unless they are facts of a jurisdictional nature). Where a question of law arises on appeal as to whether proceedings were procedurally fair, this will usually be a jurisdictional question. It may be appropriate and necessary to make findings about what occurred at the hearing: Donohoe v Albulario [2025] NSWSC 9 at [33].
4. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17 (Collins v Urban) at [84]. It is only if the decision is affected by sufficient doubt to warrant its reconsideration on appeal, that leave will be granted. Moreover, leave to appeal will only be granted where the proposed appeal raises an issue of principle, a question of public importance, or seeks to address a reasonably clear injustice arising from a misapprehension which goes beyond something that is merely arguable such that it would be unjust to allow NCAT's findings to stand (see also eg Dokas v Gallagher (No 2) [2024] NSWCA 236 at [36]; Rahman v Rahman [2025] NSWCA 219 at [99]).

1. In her notice of appeal lodged on 12 August 2025, the appellant asks for the decision under appeal to be set aside, stating her appeal grounds as:

(1) Denial of Procedural Fairness: NCAT failed to afford the appellant and protected person procedural fairness by: denying the appellant the opportunity to make closing submissions and by failing to arrange an interpreter for the protected person.

(2) Apprehension of Bias: Remarks made by the Tribunal Member at the end of the hearing, taken together with the cutting off of the appellant's submissions in the AEOD hearing, created a reasonable apprehension of bias and gave rise to the inference that the AEOD decision was pre-determined before all evidence and arguments were fully heard.

(3) Failure to Consider Relevant and Viable Alternatives: NCAT failed to adequately consider or address viable financial strategies raised by the appellant, including: the option of a reverse mortgage; family-led rectification of the Centrelink debt; access to overseas pension entitlements; and that the Statement of Advice relied upon by the NSW Trustee was outdated and not reflective of the current financial context.

(4) Failure to Properly Assess Impact of Sale and Emotional Harm: NCAT failed to meaningfully consider that the protected person expressed a wish to remain in her family home of 60 years; and the emotional and psychological harm to the protected person by sale of the property, especially where viable financial alternatives exist.

(5) Misapplication of Section 39 Principles: NCAT misapplied or insufficiently applied the guiding principles under s 39 of the Trustee Act.

(6) Failure to Consider Mismanagement by the NSW Trustee: NCAT failed to engage with the appellant's evidence that the NSW Trustee had contributed to the protected person's financial distress.

1. The appellant seeks leave to apply under s 80(2) of the NCAT Act to the extent that her appeal does not raise questions of law, on the basis that "the appeal is in the interests of justice and involves serious procedural errors and failures to consider material evidence".
2. In opposing the appeal, the NSW Trustee submits that the notice of appeal should be dismissed because (a) it does not identify any error on a question of law; (b) the purported error of facts indicated by the appellant appears to stem from her failure to prosecute her case at first instance, and not NCAT making errors in reaching the correct conclusion; and (c) the appellant has failed to comply with NCAT's orders and timetable. The NSW Trustee seeks summary dismissal of the appeal under s 50(1)(d) of the NCAT Act for want of prosecution, and under s 50(1)(b) of that Act as "lacking in substance". All of the respondents submit that the appeal is without merit.

1. The appellant did not appear at the hearing of the appeal commencing at 2.15pm on 18 December 2025, despite that hearing date and time having been notified to the parties on 22 August 2025 (and an order made to that effect). The other parties appeared, with the NSW Trustee represented by its solicitor, and the second and third respondents self-represented.
2. Parties to Tribunal proceedings, and their representatives, are under a duty to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: NCAT Act, s 36(3). We observe that not only did the appellant fail to appear at the hearing of the appeal on 18 December 2025, she repeatedly failed to comply with procedural directions made in these appeal proceedings.
3. The appellant failed to comply with directions made by the Appeal Panel on 22 August 2025 concerning the provision of written submissions. Noting her non-compliance with that direction, on 3 December 2025 the Appeal Panel further directed that the appellant provide written submissions in support of her appeal to the other parties and notified her that, should she not file written submissions in support of her case by the time of a compliance hearing on 8 December 2025, the Appeal Panel would consider dismissing the appeal for want of prosecution or as lacking in substance. At no stage did the appellant comply with Appeal Panel directions about provision of written submissions. The appellant also failed to engage with the NSW Trustee in relation to preparation of an agreed bundle of documents in the appeal (the subject of further procedural directions).
4. The only material provided by the appellant in support of her appeal was attached to her notice of appeal lodged 12 August 2025 (being a two-page document titled 'Grounds of appeal') and as contained in her stay application (requesting a stay of the orders made by the AEOD).
5. On 10 December 2025 the appellant's daughter sent by email a letter from the appellant seeking an adjournment of the appeal hearing. The basis for that application included that there were currently on foot separate applications before the Guardianship Division of NCAT for a review of the existing guardianship and financial management orders. The NSW Trustee opposed the adjournment application, submitting (amongst other things) that the guardianship and financial management proceedings are separate applications in the Guardianship Division and delaying the outcome of these appeal proceedings would not promote the welfare and best interests of the protected person.
6. On 16 December 2025, the Appeal Panel dismissed that adjournment application with reasons. In providing its written reasons for refusing the adjournment request, the Appeal Panel specifically noted that no order had been made granting leave to the appellant to be represented by an agent, pursuant to s 45(1)(b)(i) of the NCAT Act, and that any such application should be made at the commencement of the appeal hearing set down for 18 December 2025.
7. On the morning of 18 December 2025 at 10.18am, the appellant's daughter applied for an adjournment of the appeal hearing, stating in her email to the Registry that, due to a current medical condition, she was medically unfit to attend or participate at the hearing. She attached a medical certificate from a general practitioner dated 17 December 2025, which simply stated that she "is suffering from a medical condition" and "in my opinion, [she] will be unfit for normal work on 18/12/2025 inclusive". The daughter had no standing to make any adjournment request. She is not a party to the appeal nor did she have leave to appear, under s 45(1)(b)(i) of the NCAT Act, as representative for the appellant at the appeal hearing.
8. In any event, we observe that the medical certificate did not meet the requirements outlined in judicial authorities in respect of litigants, such as Bobolas v Waverley Council [2016] NSWCA 139 where McColl JA made the following comment with respect to medical evidence relied upon for an adjournment (with Simpson JA at [253] and Sackville AJA at [254] agreeing):

[221] A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the 'critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing".

1. With respect to whether a medical certificate meets minimum requirements, we see no reason to impose a less onerous standard on parties in Tribunal (as opposed to Court) proceedings, and certainly no reason to impose a less onerous standard on non-parties.
2. At 2.10pm on 18 December 2025, only 5 minutes before commencement of the appeal hearing, the appellant's daughter contacted Registry to seek consent to participate in the hearing by audio-visual link (AVL). Due to the timing, Registry provided her with an AVL link, and we were later notified and decided to give our consent for the daughter to enter the hearing room by AVL. We spent a considerable amount of time at the beginning of the hearing (20-25 minutes) waiting for the appellant's daughter to connect via AVL in order to hear any application she wished to make. The daughter said to the Registry by telephone that she could not connect to the hearing room with AVL. We did not give our consent to the daughter's participation in the appeal hearing (in any capacity) by telephone.
3. We proceeded to conduct the appeal hearing in the absence of the appellant, on the documentary material before us (including evidence which was before the AEOD), and submissions from the three respondents made orally at the hearing. This was in circumstances where the appellant failed to appear in person at the appeal hearing (despite having been notified of the hearing date on 22 August 2025), where the appellant's daughter did not have leave to appear as representative under s 45(1)(b)(i) of the NCAT Act, and did not appear at the appeal hearing to make any application for leave to represent the appellant and did not make adequate and timely arrangements to ensure that she could "participate" by AVL (presumably to apply for leave to appear as the appellant's representative, which leave may have been refused in any event).
4. We observed earlier that the appellant had failed to comply with repeated procedural directions as to the filing of written submissions. Consequently, even if the appellant had appeared at the appeal hearing, or her daughter had appeared for her with the Appeal Panel's permission under s 45(1)(b)(i) of the NCAT Act, the appellant would have not have been permitted to make oral submissions that went beyond the written material she had included in her grounds of appeal document (annexed to the notice of appeal). To do so would have been procedurally unfair to the respondents. In these circumstances we are satisfied that it was appropriate to conduct the appeal hearing in the appellant's absence, in furtherance of the guiding principle set out in s 36 of the NCAT Act in relation to Tribunal proceedings, which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". Under s 36(2), NCAT must seek to give effect to the guiding principle when it exercises powers under the NCAT Act.

1. The notice of appeal and annexure describing the grounds of appeal did not clearly articulate questions of law. However, in considering her appeal grounds, because the appellant was not legally represented in the appeal, we adopt the "more generous or benevolent approach" endorsed by the Court of Appeal in Kudrynski v Orange City Council [2024] NSWCA 33 (Kudrynski) at [50]-[51] and ask whether, as a matter of substance, we can clearly identify grounds raising questions of law. We note however that it is not the role of the Tribunal (including the Appeal Panel) to ensure that a self-represented party does not, because of a lack of legal skill, fail to claim rights or put forward legal arguments: see generally Chalik v Chalik [2025] NSWCA 136 at [67]- [72].
2. We understand the questions of law raised by the appellant to be:

(1) Whether NCAT failed to afford procedural fairness to the appellant;

(2) Whether the decision under appeal is affected by apprehended bias on the part of the Tribunal Member;

(3) Whether NCAT misconstrued or failed to apply s 39 of the Trustee Act, such that the wrong legal principles were applied.

Ground 1: Whether NCAT failed to afford procedural fairness to appellant

1. The appellant submits that NCAT acted in a procedurally unfair manner in the conduct of the AEOD hearing.
2. It is uncontroversial that, in its practice and procedure, NCAT is required to give effect to the guiding principle of the NCAT Act and to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36(1)-(2). In determining proceedings before it, NCAT is under a duty to afford procedural fairness to the parties. Procedural fairness requires that NCAT give the parties a fair hearing, and that it be free from actual or apprehended bias. The term "procedural fairness" is synonymous with natural justice (the latter term is used in s 38(2) of the NCAT Act, which expressly requires the Tribunal to observe the rules of natural justice). Reflected in s 38(5)(c) of the NCAT Act, those rules require NCAT 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".
3. It is well established that NCAT must conduct a hearing that gives procedural fairness to all parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case so as to avoid practical injustice (see eg SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26], [29]).
4. The appellant raises a denial of procedural fairness as a ground of appeal. Whether there has been a breach of procedural fairness will generally raise a question of law: see eg Kudrynski at [52]; YHY v YHZ [2024] NSWCATAP 117 at [23].
5. Where there has been a breach of procedural fairness requirements, the question arises whether that error was material to NCAT's decision. That also raises a question of law. Materiality will be established if procedural unfairness deprives the appellant of a realistic possibility of a different outcome on the administrative review application lodged in the AEOD: see generally Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [1], [33] (Kiefel CJ, Keane and Gleeson JJ); LPTD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [14]- [16].
6. The appellant submits that NCAT failed to afford her (and the protected person) procedural fairness by:

(1) denying her (via her representative) a reasonable opportunity to make a closing statement or respond to final submissions made by the respondents and their respective solicitors;

(2) failing to arrange "adequate interpretation", namely a Portuguese interpreter, for the protected person, "despite NCAT and the NSW Trustee both being aware, through multiple prior proceedings and their direct involvement since 2021, that she does not speak English"; attempting to involve the protected person in the AEOD proceedings without an interpreter, while later concluding she lacked capacity and that her views could not be ascertained.

1. Before we address the submissions outlined above, we comment briefly on the nature of the participation of the appellant's daughter at the AEOD hearing. Prior to that hearing on 12 July 2025 the daughter had applied to NCAT to be joined as a party to the AEOD proceedings, and that joinder application was refused (with written reasons provided). The applicant (now appellant) seemingly did not seek the Tribunal's leave, under s 45(1)(b)(i) of the NCAT Act, to appear at the AEOD hearing through a representative, and no leave was granted in those terms. Nonetheless, it is fair to say that there was acquiescence by the Senior Member, at the outset of that hearing and continuing through the hearing, in allowing the participation of the daughter, seemingly as the appellant's representative.
2. We are prepared to accept that, given such acquiescence, the daughter had permission (or leave) to appear as representative for her mother, the applicant, at the AEOD hearing. This can be contrasted with these appeal proceedings, and specifically the hearing of the appeal, where it was made clear to the appellant that no permission had been granted by the Appeal Panel to the appellant to be represented by an agent at the hearing of the appeal (see directions of 16 December 2025, as earlier described at [32] above).
3. We now turn to the appellant's submission that she was denied an opportunity to make a closing statement after the other parties had completed their respective cases. We agree with the NSW Trustee's submission that the daughter, as representative for the appellant in the AEOD proceedings, was provided an opportunity to make a closing statement after the other parties. The transcript of the hearing on 11 July 2025 does not support the appellant's version of what occurred at the hearing.
4. The following exchange between the Tribunal Member and the appellant's representative is recorded shortly before the conclusion of the AEOD hearing (Transcript (Tcpt), 11 July 2025, p 92(22-27)):

"Senior Member: okay, thank you. Do you have any more submissions you would like to make to me?

[Appellant's Representative]: No, that's all, thank you very much."

1. That opportunity was provided to the appellant after the respondents had completed their respective cases (i.e. put their evidence and made their submissions). In our view, there is no substance to the appellant's contention that she was denied a reasonable opportunity to make submissions in support of her case. She had an opportunity to do so at the AEOD hearing and prior to that, through being provided with the opportunity to lodge written submissions prior to the AEOD hearing.
2. We turn now the appellant's contention that she was unfairly disadvantaged because NCAT failed to provide an interpreter for the protected person. During the AEOD hearing, and at the appellant's invitation, the Senior Member attempted to telephone (from the hearing room) the protected person. While the protected person was not a party to the proceedings, it can be presumed that the appellant wished to involve the protected person in order for her to put her views about sale of the house.
3. One of the witnesses who gave oral evidence in the hearing (a family friend) had indicated that the protected person speaks broken English and could engage in basic conversation (Tcpt, p 19(15)). After the Senior Member arranged to telephone the protected person, it transpired that she was unable to communicate in English (Tcpt, p 43(21)-46(4)) and the grandson who was present with the protected person said to the Senior Member that "[y]ou need an interpreter" (Tcpt, p 43(31)). The NSW Trustee stated a preference for an independent interpreter (i.e. not a family member), which the Trustee conceded could not happen on such short notice. The Senior Member terminated the phone call, and later recorded in the Reasons at [31] that the protected person did not speak English and an independent Portuguese interpreter could not be arranged at short notice.
4. We accept that a failure by NCAT to provide an interpreter for a party to proceedings may constitute denial of procedural fairness in certain circumstances. However, much will depend on the facts of the particular case.
5. In Pak v Ka Yau Chan [2021] NSWCATAP 85, an Appeal stated that a failure to provide an interpreter may constitute denial of procedural fairness (at [29]) but there was no such failure found in that case. There, the appellant did not request an interpreter before the hearing, nor did she indicate to NCAT at the Conciliation and Group List hearing that she was in need of an interpreter or that one was required for the final hearing, as was open to her. There was also no request for an adjournment of the final hearing in that matter. The Appeal Panel said it was a practical question whether the appellant had, at first instance, an opportunity to meet the case put against her. It was held that there was no evidence to support the view that the absence of an interpreter resulted in the appellant not being able to present her case to NCAT.
6. The NSW Trustee submits that there was no denial of procedural fairness in the AEOD proceedings in question. The appellant was invited to seek the appointment of a Portuguese interpreter as per the Tribunal's orders made on 10 December 2024 in the AEOD proceedings, and failed to do so at the next directions hearing in those proceedings on 8 January 2025. It was not a denial of procedural fairness by NCAT not to engage further with the protected person when the appellant failed to make arrangements for an interpreter or put the parties on notice that the appellant intended to call the protected person as a witness.
7. From our review of the material before us, it is not apparent that the appellant requested an interpreter, either for herself or for the protected person, at any stage of the AEOD proceedings. The appellant did not give notice to the AEOD, or to the other parties, that the protected person would be participating in the AEOD hearing or, in particular, giving oral evidence. The issue of whether an interpreter was required was specifically raised by the AEOD in the directions hearing held on 10 December 2024, and no request for an interpreter was made by the appellant. Moreover, in the notices of listings for directions hearings sent by the Registry to the appellant (to notify her of upcoming directions hearings in the AEOD proceedings), the NCAT fact sheet attached to each those listing notices included the following text under the heading "Tell us": "Write to the Tribunal straight away if you: need an interpreter, have any support requirements so we can discuss what assistance you may need; ...." (our italics).
8. Moreover, the NCAT website contains detailed information for parties about how to request an interpreter, in a range of languages, including Portuguese. In the "Help and support" tab, there is a link to a page on "Interpreters and translators". The website states that NCAT can organise an interpreter, free of charge, for a party to proceedings. That website page makes clear that "[a] request for an interpreter should be made as early as possible" and provides a link to contact information for the Registry for more information. It is further stated that when an interpreter is required for a witness or a non-party, an appropriately qualified interpreter is to be arranged by the relevant party and not NCAT.
9. To the extent that the appellant relies on an argument that the protected person was provided with an interpreter in earlier Tribunal proceedings in the Guardianship Division, we make the observation that the protected person was a party to those guardianship proceedings. By way of contrast, the protected person was not a party to the AEOD proceedings.
10. In sum, we can see no basis for the assertion that NCAT failed to afford the appellant procedural fairness. On the evidence before us it is clear that the appellant made no application for an interpreter for herself as a party or for the protected person as a witness in the AEOD proceedings. We are satisfied that the appellant (through her representative) had an ample opportunity to make her case at the AEOD hearing.

Ground 2: Whether reasonable apprehension of bias on part of Tribunal Member

1. As part of its obligation to afford procedural fairness to the parties, NCAT was required to determine the administrative review application, and any issue that might arise in its determination, without bias (whether actual or apprehended).
2. The onus of demonstrating apprehended bias lies with the appellant as the party asserting bias. In the contexts of courts, the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6]; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]. It is sometimes referred to as the "double might test".
3. In Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 (Isbester), in the context of a decision by a local council committee, Kiefel, Bell, Keane and Nettle JJ at [20] stated the test to be "whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made". This was largely a factual question "albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made". Their Honours commented at [22] that the application of the principle in Ebner to decision-makers other than judges "must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making".
4. The test of apprehended bias is objective. The question is not whether the decision-maker would not actually bring an impartial mind to the matter. The question is whether the fair-minded lay observer might reasonably apprehend that to be the case. While the observer assessing possible bias is not a lawyer and is not assumed to have a detailed knowledge of the law, nonetheless the observer is taken to be aware of the nature of the decision, the context in which it was made and to have knowledge of the circumstances leading to the decision: Isbester at [23].
5. The appellant submits that NCAT "prejudged" the administrative review application thereby demonstrating bias. The appellant asserts that, at the conclusion of the AEOD hearing, the Senior Member indicated to the parties "my decision will not shock anyone", and that this remark, taken together with the "cutting off" of the appellant's oral submissions, created a reasonable apprehension of bias and gave rise to the inference that the decision was pre-determined before all evidence and arguments were fully heard.
6. The NSW Trustee says that there is no issue of apprehended bias. The appellant was afforded the opportunity to provide submissions throughout the hearing. At one point during the hearing the appellant walked out of the hearing room, and with reference to the appellant's assertion that she was denied the opportunity to make closing submissions, the NSW Trustee says that the Senior Member enquired whether the appellant had any more submissions to make. The appellant's representative advised "No, that's all, thank you very much".
7. We do not accept the appellant's contention that what occurred near the end of the hearing (as recorded in the transcript) establishes apprehended bias on the part of the Tribunal Member.
8. While the appellant says that she was not provided with an opportunity to make closing submissions, or a closing statement, it is evident from the transcript that the Senior Member specifically asked the appellant's representative near the end of the hearing (and after the other parties had put their respective cases) whether she wished to make any more submissions. The appellant's representative indicated that she did not wish to do so (Tcpt, p 92 (22-27)).
9. The Senior Member then followed with a comment that "I'm going to adjourn this. I will reserve my decision, which won't shock anyone here and..." (Tcpt, p 92 (26-27)) The Senior Member did not complete her sentence because she was interrupted by the appellant's representative.
10. On our reading of the transcript, we think the Senior Member's remark "which won't shock anyone here" was intended to refer to the fact that the Member had decided to reserve her decision, as opposed to delivering her decision immediately. The comment was made at the conclusion of the matter, that is, after all evidence, submissions and arguments had been heard. Instead of making an immediate ruling, the Tribunal "reserved" its decision. A decision is typically reserved where the Tribunal has heard all evidence and arguments but needs more time to review evidence, law and submissions before making a final ruling, such that the Tribunal "reserves" its decision, which is later provided to the parties in writing usually with detailed reasons.
11. We observe that the Senior Member's remark was made at the end of a long day's hearing, with multiple parties having given oral evidence. It is hardly surprising that the Senior Member decided to reserve her decision on the administrative review (essentially, whether to affirm or vary the Sale decision, or to send the matter back to the NSW Trustee for reconsideration).
12. In terms of the legal test for apprehended basis, there is nothing in the conduct of the hearing, as supplemented by our reading of the transcript, to suggest that the fair-minded observer might think that the Senior Member might not bring an impartial mind to the issues that fell for determination. As we have said, the onus is on the appellant to prove her assertion of bias. We reject the appellant's contention that a fair-minded lay observer might reasonably apprehend that the Senior Member had "prejudged" the outcome on the administrative review. We are satisfied there is no claim of apprehended bias towards the appellant proven.

Ground 3: Whether NCAT misconstrued the Trustee Act or otherwise failed to apply correct legal principles

1. We understand the appellant to raise a question of law as to whether NCAT misconstrued, misapplied or failed to apply the guiding principles under s 39 of the Trustee Act. The NSW Trustee says the appellant has failed to particularise any misapplication of the s 39 principles and submits that the Senior Member did consider the s 39 principles and less restrictive alternatives to sale, including renting of the house.
2. We agree with the NSW Trustee's submission that the Senior Member adequately considered the guiding principles in s 39 of the Trustee Act. At [54] of the Reasons, the Senior Member acknowledged that s 39(a) of the Trustee Act requires the welfare and interests of the protected person to be given paramount consideration, recognising that, to this end, "it is of paramount importance that the protected person access sufficient funding to cover her accommodation, her care and her medical expenses, all of which are vital to her day-to-day survival".
3. The Senior Member also acknowledged the importance of seeking the views of the protected person in furtherance of s 39(d) of the Trustee Act, "however the material submitted to the Tribunal supports a finding, on balance, that the protected person does not have sufficient capacity to contribute to this decision (about whether the sale of the property is the correct and preferable decision)": Reasons at [55].
4. The Senior Member referred to evidence from medical professionals from 2021 onwards, and from medical professionals who treated the protected person in 2024 for an infection, which supported a finding that the protected person suffers from, at least, moderate dementia and psychosis: Reasons at [55]. The Senior Member also referred to NCAT's decision of 22 April 2021 (appointing the NSW Trustee as financial manager) in which the Guardianship Division recorded that it could not obtain, in those guardianship proceedings, the protected person's views as her capacity to participate was impacted by her dementia.
5. In the decision under appeal, the Senior Member stated in the Reasons at [57] that "it is highly unlikely that the serious medical conditions the protected person suffered from as a 91 year old would be significantly or radically improved or resolved four years later" and went on to make a finding that the protected person did not have the capacity to participate in the AEOD's "correct and preferable" decision to sell the house and provide her views in that respect.
6. While the appellant submitted in the AEOD proceedings that the protected person no longer has incapacity issues, and is capable of making decisions, the appellant put no probative evidence to the AEOD to support that submission.
7. The Senior Member also specifically referred to the guiding principle in s 39(e) of the Trustee Act, finding that the material and submissions before her indicated that the protected person has a devoted family who participate actively in her care, that the decision to sell or not sell the property would not have any bearing on this, and that the obligations pursuant to s 39(e) were satisfied: Reasons at [58].
8. The Senior Member also found that the proposal to sell the property should assist in ensuring the principles espoused in s 39(f) and 39(g) of the Trustee Act were able to be met, by ensuring that the protected person has sufficient financial means for her needs to be fully and appropriately met: Reasons at [59].
9. While the Senior Member did not specifically refer to the guiding principles in s 39(b) (freedom of decision and action should be restricted as little as possible), or s 39(c) (such persons should be encouraged as far as possible to live a normal life in the community), we do not consider the failure to refer explicitly to each of the s 39 principles means that the Senior Member misapplied the Trustee Act or failed to apply the correct legal principles in making the "correct and preferable decision".
10. On a fair reading of the Reasons, the Senior Member was concerned to apply the s 39 principles, including the principle espoused at s 39(a) of the Trustee Act that the welfare and interests of protected persons should be given paramount consideration. There was evidence before the Senior Member that the protected person needed to have a family member with her at all times, that she was living with family members (not in her house), that her mental capacity was declining, and that she had liquidity (or cashflow) problems coupled with debts.

1. In Collins v Urban at [82]-[84], the Appeal Panel stated that, for leave to appeal to be granted, an appellant must demonstrate something more than that the primary decision-maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. We proceed on this basis.
2. Here, the appellant expresses dissatisfaction with the outcome of the administrative review. We understand her leave grounds to be: (1) NCAT made serious procedural errors in its consideration of the administrative review application; and (2) NCAT failed to consider material evidence in making its decision on the review.
3. The NSW Trustee submits that there is no basis on which leave to appeal should be granted. The NSW Trustee further says that the appellant has not indicated that any evidence that she put to the AEOD was not made available to NCAT and not taken into account by the Senior Member.

1. We have already stated our view that we do not consider there was the denial of procedural fairness asserted by the appellant. She does not particularise in any further detail "the serious procedural errors" she asserts. We see no basis on which to grant leave to appeal in relation to this ground.

Leave Ground 2: Asserted failures to consider material evidence

1. In her grounds of appeal attached to the notice of appeal, the appellant says that the Senior Member failed to consider material evidence and/or submissions in the following ways:

(1) by failing to adequately consider viable financial strategies raised by the appellant, including: the option of a reverse mortgage which could eliminate her debts while preserving the home; family-led rectification of Centrelink debt; access to overseas pension entitlements; and the fact that the Statement of Advice relied upon by the NSW Trustee was dated March 2022, and therefore outdated and not reflective of the current financial context;

(2) by failing to assess properly the impact of the sale to the protected person, through failing to meaningfully consider that the protected person's home has been in the family for over 60 years; that she expressed a wish to remain there; that her carer currently resides there and would be displaced; and that the emotional and psychological harm to the protected person - who is 95 and medically vulnerable - would be irreversible, especially where viable financial alternatives exist;

(3) by failing to consider "mismanagement" by the NSW Trustee in contributing to the protected person's financial distress, including by failing to secure overseas pension entitlements; and failing to act on viable strategies "to maintain the property and income".

1. From our review of the material before NCAT, it would seem clear that no probative evidence was put by the appellant concerning viable financial alternatives to sale of the house. While the appellant asserts a failure by NCAT to consider evidence of alternative options to sale of the house, she has not pointed to any evidence, let alone probative evidence, which was overlooked by NCAT. Nor has the appellant pointed to any material submission that was not addressed by the Senior Member in the Reasons.
2. The Senior Member did consider alternatives to sale, including a rental option: Reasons at [48]-[49]. The Senior Member accepted the findings of the FPU that leasing out the property was not a viable option even if the property were found to be in a fit condition immediately and even if it obtained above market rent: Reasons at [52]. The Senior Member recorded that the appellant had offered no submissions or evidence with respect to a viable alternative financial management plan if the property is not sold, to secure adequate income to address the protected person's current needs and reduce or eliminate her debts: at [52]. From our review of the evidence before NCAT, the appellant put no probative evidence about alternative financial management plans, including a reverse mortgage option.
3. The Senior Member considered submissions before her as to the protected person's entitlement to a Portuguese pension but noted the appellant's submissions were not substantiated by any documentation, and that in the absence of any further evidence, no weight could reasonably be given to the alleged overseas pension entitlement: Reasons at [43]. The Senior Member made a finding that, even with the receipt of a Portuguese pension, and no Centrelink debt, the protected person's income was "well short of the amount needed to service her expenses in the Statement of Advice previously obtained in March 2022". The Senior Member noted the (now) appellant's submission that an updated Statement of Advice had not been procured for the AEOD proceedings, stating: "it is clear that the protected person's financial situation has significantly worsened since that advice, and will continue to deteriorate as her liabilities continue to accrue, without any income to offset them": Reasons at [50].
4. We see no basis for the appellant's contention that NCAT failed to consider material evidence about the significance of the house to the protected person, the views of the protected person about sale of the house, and whether she was residing exclusively at the house in question.
5. We agree with the NSW Trustee that the appellant did not adduce medical evidence concerning the emotional and psychological impact on the protected person. of sale of the house. It is therefore difficult to understand the appellant's assertion that NCAT failed to consider material evidence to this effect.
6. Similarly, NCAT did not fail to consider material evidence about the views of the protected person about sale of the house. While finding that the protected person did not have the capacity to participate in the decision and to provide her views on the sale of the house (Reasons at [57]) the Senior Member nonetheless accepted that a sale of the house may not be what the protected person would prefer. The Senior Member was satisfied, on the evidence before her, that the financial imperatives and the paramount consideration of ensuring the protected person has the funds to be properly cared for in her remaining years, must take precedence: Reasons at [61].
7. The Senior Member also considered the conflicting evidence, and submissions made, about whether the protected person was living in the house (as at the time of the AEOD hearing). The Senior Member acknowledged that one of the factors informing the Sale decision was the NSW Trustee's belief that the protected person was no longer residing in the house. The Senior Member indicated it was not necessary to reach a concluded view on this matter (whether the protected person currently resided at the house), given her conclusion that the only viable option to resolve the protected person's current financial issues and secure her financial future is to sell the property: see Reasons at [70] and [60].
8. The Senior Member found that the protected person's financial situation is untenable and will continue to deteriorate without the sale of the property, regardless of whether she is currently residing there or not: Reasons at [70]. We reject the appellant's contention that the Senior Member failed to consider material evidence put by the appellant about whether the protected person currently lived at the house; rather the Member accepted there was conflicting evidence on that issue and made no concluded finding on that issue.
9. With reference to asserted "mismanagement" of the protected estate, the Senior Member stated expressly in the Reasons that the issue was beyond the scope of the AEOD proceedings, and noted that the applicant had filed a separate application with the Guardianship Division of NCAT to remove the NSW Trustee as financial manager. The Senior Member stated that matter was to be heard separately and had no relevance to the matter before her: Reasons at [44]. There was no error made by the Senior Member in this regard.
10. The appellant has not put forward any compelling case that NCAT's findings were made without considering material evidence or that the findings were made without probative evidence; rather she is dissatisfied with the determination made. In terms of NCAT's fact-finding, the appellant does not point to "a factual error that was unreasonably arrived at and clearly mistaken", nor that NCAT went about its fact-finding in such an unorthodox manner or otherwise in such a way that was likely to produce an unfair result such that the interests of justice require a review of the AEOD decision.
11. In sum, we do not consider the decision under appeal is attended with sufficient doubt to warrant its reconsideration on appeal. The appellant has failed to identify any of the factors in Collins v Urban which might warrant the exercise of the discretion to grant leave to appeal. The proposed appeal raises no issue of general importance or matter of principle. Nor does it involve a clear injustice such that it would be in the interests of justice to revisit the decision.
12. The proposed appeal has no reasonable prospects of success.
13. Leave to appeal is refused.

1. At the appeal hearing on 18 December 2025, we made an order that the stay on the sale of the real property owned by the protected person previously granted by the Appeal Panel (the stay) be extended to the determination of this appeal. Given the outcome of these appeal proceedings, the stay is no longer in force from the date of the publication of these reasons for decision.

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.