ZBC v ZBD - [2016] NSWCATAP 264 - NSWCATAP 2016 case summary — Zoe

NSWNSWCATAP

ZBC v ZBD

[2016] NSWCATAP 264

NCAT Appeal Panel|2016-06-15|Before: Deane JJ, Gibbs CJ

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2016-06-15

Before

Deane JJ, Gibbs CJ

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

M v M [2013] NSWSC 1495 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Lian [1996] 185 CLR 259 Pollard v RRR Corp [2009] NSWCA 110 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 QP v RP [2014] NSWCATAP 59 Re R [2000] NSWSC 886 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Sean Investments Pty Ltd v MacKellar [1981] FCA 191 Siahos v J P Morgan Trust Australia Limited [2009] NSWCA 20 Susan Elizabeth Parker v Margaret Catherine Higgins [2012] NSWSC 1516 Taheri v Vitek [2014] NSWCA 209 Wright v Ryan [2005] NSWCA 368 ZCK v NSW Trustee and Guardian [2016] NSWCATAP 200 Category: Principal judgment Parties: ZBC (Appellant) ZBD (1st Respondent) NSW Trustee and Guardian (2nd Respondent) ZCG (3rd Respondent) Representation: P Glissan (ZBC) J Restuccia (ZBD) D Burwood (separate representative for ZCG) File Number(s): AP 15/67750 Publication restriction: The publication of the name of any of the parties or other people referred to this decision including the publication of any information picture or other material that identifies them or is likely to lead to their identification is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 01 July 2015 Before: J McMillan (Senior Member), Dr M Martin (Senior Member - Professional), L Porter (General Member - Community) File Number(s): C/58916

[2]

Introduction

This is an appeal against a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) made on 1 July 2015 in relation to ZCG.
ZCG is an 86-year-old woman who lives in a residential care facility in a suburb of Sydney. ZCG has two daughters: ZBC (the appellant) and ZBD (the first respondent). Prior to ZCG's entry into residential care in September 2014, she lived in her own home with her late son who passed away in August 2014 and who had been her carer.
The evidence before the Tribunal below, and it was not in dispute in these appeal proceedings, is that ZCG's decision-making capacity is impaired as she has dementia.
ZCG's son died intestate and ZCG is the sole beneficiary of the estate. In January 2015, the appellant obtained a limited grant of letters of administration in relation to the estate of her late brother, as attorney of ZCG.
On 16 June 2008, ZCG appointed her three children jointly and severally as her attorneys pursuant to an enduring power of attorney. It was common ground before the Tribunal below, and not contested in the appeal proceedings, that the appointment of the first respondent as attorney was revoked by ZCG in 2009. With the death of ZCG's son in 2014, the only remaining attorney was the appellant.
In March 2015, the first respondent lodged an application with the Tribunal seeking a review of the enduring power of attorney.
The hearing of the application took place on 24 June 2015. The Tribunal reserved its decision and on 1 July 2015 made the following orders: 1. To carry out a review of the enduring power of attorney made by ZCG on 16 June 2008 which appointed [her three children]. 2. Not to make any order under s 36 of the Powers of Attorney Act 2003 (NSW) in relation to the enduring power of attorney. 3. To treat the application for a review of the enduring power of attorney as an application for a financial management order under the Guardianship Act 1987 (NSW). 4. The estate of ZCG is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 5. The management of the estate of ZCG is committed to the NSW Trustee and Guardian.
In the Notice of Appeal, the appellant expressly challenged orders 4 and 5 of the Tribunal's orders. However, in her written and oral submissions in the appeal, the appellant sought to appeal the entirety of the orders made by the Tribunal. There was no objection to this course of action from any of the other parties or the separate representative.
For the reasons set out below, we have decided to allow the appeal as we have concluded that the Tribunal below erred in law by failing to provide adequate reasons. The application by the first respondent is remitted to the Guardianship Division of the NCAT for determination in accordance with law.

[3]

Relevant legislation

Section 36 of the Powers of Attorney Act (POA Act) relevantly provides that: 36 Interested persons may apply for review (1) Tribunal may review making or operation and effect of power A review tribunal may, on the application of an interested person, decide to review the making, revocation or the operation and effect of a reviewable power of attorney or not to carry out such a review. (2) As a consequence of reviewing the making, revocation or operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section. …
Section 37 of the POA Act relevantly provides that: 37 Review tribunal may treat certain applications for review of power of attorney as application for management order (1) If, on a review of the making, revocation or operation and effect of a reviewable power of attorney under section 36, the Civil and Administrative Tribunal decides not to make an order under that section in respect of the power of attorney, it may (if it considers it appropriate in all the circumstances to do so) decide to treat the application for the review as an application for a financial management order under Part 3A (Financial management) of the Guardianship Act 1987. (2) If such a decision is made, the application is taken to be an application for such a financial management order duly made in respect of the principal under that power. …
Section 25G of the Guardianship Act 1987 (NSW) (Guardianship Act) provides: 25 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.
Section 25M of the Guardianship Act relevantly provides that: 25M Tribunal may commit estate of protected person to management (1) If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order: (a) appoint a suitable person as manager of that estate, or (b) commit the management of that estate to the NSW Trustee. …
When "exercising its Division functions for the purposes of the Guardianship Act in relation to persons who have disabilities", the Tribunal is under a duty to observe the principles referred to in s 4 of the Guardianship Act (Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), Sch 6, cl 5(1)).
Under s 4 of the Guardianship Act, it is the duty of everyone exercising functions under that Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.

[4]

Decision of the Tribunal

The Tribunal provided the following reasoning in relation to its decision to carry out a review of the enduring power of attorney made by ZCG on 16 June 2008, not to make any order under s 36 of the POA Act and to treat the application for a review of the enduring power of attorney as an application for a financial management order under the Guardianship Act: Attorneys are in a fiduciary relationship with the person whose affairs they manage. An attorney must act in the best interests of the principal and must not obtain a personal benefit other than specifically provided for in the executed enduring power of attorney (Powers of Attorney Act 2003, section 12). As noted above, ZCG specifically deleted paragraphs 5, 6 and 7 in the executed document that would have authorised the attorney to give gifts or confer benefits on the attorney or third parties. Despite this, the evidence indicates that [the appellant] is obtaining a benefit, by residing in her mother's property without paying rent. Although [the appellant] told the Tribunal that she was preparing the property for letting, she did not appear to have a clear plan or timeframe for doing so. Further [the appellant] has indicated several times that she intends to pay herself a substantial sum of money from her brother's estate, although in her witness statement and at the hearing she indicated that she understood that she would only be able to make a payment to herself from the estate for her pains and trouble if and to the extent that the Supreme Court awards her commission. The Tribunal did not doubt that [the appellant] is a caring and loving daughter to [ZCG]. However, her actions and statements led the Tribunal to the view that she has failed to appreciate her role and obligations as her mother's attorney. There is clearly a dispute between [the appellant] and the [first respondent] and [the appellant] has commenced proceedings against [the first respondent] in the Local Court. It is not for the Tribunal to make any findings about those proceedings or the allegations on which they are based. Of concern to the Tribunal is that [the appellant] has considered it appropriate to take a benefit from her mother's estate by residing in her house rent free and that she has not recognised a conflict of interest in proposing to pay herself from her brother's estate, notwithstanding that her mother is the sole beneficiary of that estate. In the Tribunal's view, [the appellant's] financial interests conflict with those of her mother, and the Tribunal was of the view that it was not in ZCG's interests for [ZCG] to remain as her attorney. Given this evidence, the Tribunal decided to review the operation and effect of the enduring power of attorney pursuant to section 36(1) of the Powers of Attorney Act 2003. The Tribunal was not persuaded, however, that it was in ZCG's best interests to make any orders under section 36(4) of the Powers of Attorney Act 2003, but decided in all the circumstances to treat the application for review of the enduring power of attorney as an application for a financial management order.
As the Tribunal noted in its reasons, before it could make a financial management order, it had to be satisfied that:

ZCG was not capable of managing her affairs;
There was a need for another person to manage the affairs of ZCG on her behalf;
It is in the best interests of ZCG that a financial management order be made.

The Tribunal was satisfied as to each of these matters.
The Tribunal then had to decide who should be appointed as ZCG's financial manager. The first respondent was in favour of the NSW Trustee and Guardian being appointed. The appellant was opposed to the making of a financial management order but, if an order was to be made, wished to be appointed.
The Tribunal decided to commit the management of ZCG's estate to the NSW Trustee and Guardian and its reasons for doing so are set out as follows: The Tribunal had regard to a number of factors in its consideration of whether it would be in [ZCG]'s interests to appoint [the appellant] as financial manager. In particular the Tribunal was concerned about the level of conflict between [the appellant] and [the first respondent], the benefit [the appellant] was receiving by living in ZCG's house rent free, and her apparently very recent decisions to take steps to let the property and to reconsider her claim to payment from [her late brother's] estate. Further, if, as [the appellant] asserts, she intends to make a claim in the Supreme Court for commission from [her late brother's] estate, then it is in [ZCG]'s best interests for there to be a financial manager who is not [the appellant] to either oppose that claim or to settle it. For these reasons the Tribunal was not satisfied that it would be in [ZCG]'s best interests to appoint [the appellant] as financial manager. The Tribunal therefore decided to commit the management of the property and affairs of [ZCG] to the NSW Trustee and Guardian.

[9]

Applications to rely on fresh evidence

The fresh evidence sought to be relied on by the appellant was as follows: 1. Report from GME Constructions Pty Ltd to Tribunal dated 28 January 2016; 2. Report from PRD Nationwide Bexley North dated 28 January 2016; 3. Page 1 of Residential Tenancy Agreement dated 28 January 2016; 4. Appellant's Application to the Supreme Court of New South Wales for Commission dated 9 September 2015; 5. Appellant's Affidavit Verifying Accounts dated 7 September 2015; 6. Email from Solicitor to Appellant dated 24 February 2016; 7. Notice of Discontinuance dated 18 September 2015; 8. Appellant's employment leave records (28 July 2014 to 6 February 2015); 9. Appellant's Accountancy Diploma dated 9 May 1979.
A party seeking to adduce fresh evidence in an appeal may only do so with the leave of the Appeal Panel and in accordance with well-established principles (see, for example, Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, 402 (Mason and Deane JJ), 399 (Gibbs CJ); QP v RP [2014] NSWCATAP 59, at [34]-[37]).
If the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be "affirmatively satisfied" that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was "likely to have produced a different result" (Building Professionals Board v Hans [2008] NSWADTAP 13, at [54]; ZCK v NSW Trustee and Guardian [2016] NSWCATAP 200, at [25]).
Importantly, it is the decision at first instance that the Appeal Panel must examine and it is not relevant to an examination of that decision whether the circumstances have changed since that time (QP v RP [2014] NSWCATAP 59, at [37]).
In Wright v Ryan & Anor [2005] NSWCA 368, at [24], the Court of Appeal considered the meaning of the term "fresh evidence" as used in the context of a motion for a new trial: The evidence must be admissible and credible, and such that it could not have been discovered by the exercise of reasonable diligence before the trial. It must be of such probative value and significance that, taken with the evidence given at the trial, it will in all probability be decisive of the issues between the parties and result in a different verdict: McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529] at 532 per Barwick CJ.
As is apparent from the dates of the documents listed from (a)-(g) above at [30], those documents came into existence after the date of the hearing before the Tribunal on 24 June 2015 and the date of its decision on 1 July 2015.
This material is not evidence which was relevant to the Tribunal's decision at that time. It is information about how certain matters have transpired since the hearing. On this basis, we find that the information should not be admitted on appeal. Leave to adduce this evidence is refused.
Leave was sought to submit the appellant's employment leave records (28 July 2014 to 6 February 2015) as fresh evidence in further support of a statement provided in a letter that was in evidence before the Tribunal (letter dated 1 December 2014 to first respondent's solicitors - Annexure "F" to the appellant's Witness Statement (AB 39-41)) that she had to extend her leave during the period following her brother's death on 20 August 2014. We understood that the appellant wished to have this evidence before the Appeal Panel as further evidence that the appellant had expended considerable time and effort in doing everything that she had to do following her brother's death including taking a large amount of leave, including long service leave (Appellant's submissions in support of her appeal, 21 March 2016, at [27]) and was further evidence that instead of obtaining a benefit by living in her mother's house rent free, she suffered a detriment. In oral submissions, it was put that the leave records showed the sacrifice that the appellant had made and the huge expenditure of her personal time for which she received no remuneration.
We are not persuaded that if the appellant's leave records from 28 July 2014 to 6 February 2015 had been before the Tribunal, it was "likely to have produced a different result" (see Building Professionals Board v Hans [2008] NSWADTAP 13, at [54]). Evidence that the appellant took and extended leave from her employment was already before the Tribunal in Annexure "F" to the appellant's Witness Statement (AB 39-41). The material sought to be tendered as fresh evidence simply provides more detail of what was already in evidence. We also note that the letter dated 1 December 2014 to the first respondent's solicitors (Annexure "F" to the appellant's Witness Statement (AB 39-41)) also contains details of what the time and effort the appellant contends she spent attending to her duties as the administrator of her late brother's estate as well as taking steps in relation to her mother's home. It is not clear from that letter of the time spent on these two different activities. The leave records sought to be relied on by the appellant are therefore also of limited utility given that there is no evidence of the purpose of the leave taken, that is, what time was spent in relation to her duties as administrator as opposed to other activities.
Leave was also sought to submit the appellant's accountancy diploma dated 9 May 1979 as fresh evidence. We understood that the appellant wished to have this evidence before the Appeal Panel as further evidence of the appellant's suitability to be appointed as her mother's private financial manager (Appellant's submissions in support of her appeal, 21 March 2016, at [66]).
The appellant's counsel acknowledged that this document existed as at the date of the Tribunal hearing and could not provide an explanation, on his client's behalf, as to why it was not put before the Tribunal.
Given that the document could have "been discovered by the exercise of reasonable diligence" before the hearing (Wright v Ryan & Anor [2005] NSWCA 368), the information should not be admitted on appeal. For the sake of completeness, we also note that we are not persuaded that if the appellant's accountancy diploma had been before the Tribunal it was "likely to have produced a different result".

[11]

General principles

A summary of the principles relevant to the giving of reasons is provided in the judgment of McColl J in Pollard v RRR Corp [2009] NSWCA 110, at [56]-[67] (Ipp JA, Bryson AJA agreeing): Obligation to give reasons 56 The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them (Maviglia v Maviglia [1999] NSWCA 188 (at [1]) per Mason P). However a trial judge's reasons must, "as a minimum…be adequate for the exercise of a facility of appeal": Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (at 260) per Kirby P; (at 268 - 269) per Mahoney JA; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 444) per Meagher JA. A superior court, "considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding": Soulemezis (at 280) per McHugh JA applying Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 (at 701, 713). 57 The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale (at 442) per Meagher JA. 58 The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ. 59 The reasons must do justice to the issues posed by the parties' cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge "'enter into' the issues canvassed and explain why one case is preferred over another"; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J. 60 Various observations have been made about the extent to which reasons should deal with the evidence. None is exhaustive; the test of adequacy, as I have earlier said, is relative. It is sufficient for the purposes of this case, to note the following. 61 The general proposition was stated by Samuels JA in Mifsud (at 728): "…[F]ailure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge … may promote a sense of grievance in the adversary and create a litigant who is not only 'disappointed' but 'disturbed' - to use the words which appear in the New Zealand case of Connell v Auckland City Council (1977) 1 NZLR 630 at 634." In similar vein, Gray J (with whom Fullagar and Tadgell JJ agreed) has said "[t]o have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant": Sun Alliance Insurance Ltd v Massoud [1989] VR 8 (at 18). … 66 Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses: Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130] - [131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed)); see also Najdovski v Crnojlovic [2008] NSWCA 175 (at [21]) per Basten JA (Allsop P and Windeyer J agreeing).
In a recent discussion of the principles, Basten JA in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33, noted at [48]: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.
Section 62(3) of the CAT Act states: 62 Tribunal to give notice of decision and provide written reasons on request … (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.
The nature and extent of the duty to give reasons in the Tribunal is set out in Collins v Urban [2014] NSWCATAP 17, at [48]-[57].

[14]

Discussion

The Tribunal below in its written reasons correctly stated that attorneys are in a fiduciary relationship with the person whose affairs they manage.
The reasons also make express reference to s 12 of the POA Act which provides that: 12 Prescribed power of attorney does not generally confer authority to confer benefits on attorneys A prescribed power of attorney does not authorise an attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on the attorney unless the instrument creating the power expressly authorises the conferral of the benefit. …
As was noted in the Tribunal's reasons, in the enduring power of attorney that was the subject of these proceedings, ZCG had specifically deleted paragraph 6 of the document with the effect that the attorney was not authorised, in accordance with s 12, "to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on the attorney".
In Anderson v Anderson [2016] NSWSC 1204, Hallen J, at [298], noted that: It has been held that sections 12 and 13 "as their terms make clear, are intended to do no more than restate the principles of the general law, namely, that, without the express authority of the grantor, an attorney is not authorised by a power to execute instruments in his own favour or in favour of a third party"; however, those provisions do not of themselves "invalidate any instrument" executed by the attorney: Dimitrovski v Australian Executor Trustees Limited at [68], Emmett JA (with whom Bergin CJ in Eq. agreed).
The principle that the relationship between a principal and agent is a fiduciary one, requiring the agent not to place himself or herself in a position of conflict, nor to obtain a profit or benefit from the position, without first obtaining fully informed consent, is well established (Taheri v Vitek [2014] NSWCA 209, Leeming JA, at [115] (Bathurst CJ and Emmett JA agreeing) making reference also to Howard v Commissioner of Taxation [2014] HCA 21, at [33] and [56]).
Whether or not a benefit has been conferred on an attorney is a question of fact (see, for example, Siahos & Anor v J P Morgan Trust Australia Limited [2009] NSWCA 20, at [24]-[25]).
While the Tribunal "was not obliged to spell out every detail of the process of reasoning to a finding" (Pollard v RRR (at [58]), it was, in our view, essential in the circumstances of this case for the Tribunal to clearly expose its reasoning on whether a benefit had been conferred on the appellant as it was "a point critical to the contest between the parties" (Pollard v RRR (at [38]). That the issue was in contest between the parties is evident from the transcript of the proceedings on 24 June 2015 (Appellant's Appeal Book at page 55 (35), 78 (1-5), 79 (45 - 50), 80 (1-5), 81 (5-10)). It is also evident from the material filed in the Tribunal below. This includes the witness statement of the appellant dated 22 June 2015 (see Appellant's Appeal Bundle at pages 19-28) and, in particular, evidence provided by the appellant relating to the condition of her mother's home and the work done on it after the appellant moved into the home (paragraphs 22-26, 31-33).
It is clear that the Tribunal concluded that the attorney received a benefit by living in her mother's home rent free from November 2014 to the date of the hearing. It is not possible, however, to discern the reasoning that led to this finding of fact.
The appellant's evidence was that her mother's home was at all relevant times unlettable and therefore the appellant did not receive a benefit by living in the home rent free as the home was neither properly habitable nor lettable. The Tribunal made reference to this evidence but it is not evident from the reasons whether the Tribunal did not accept the evidence that the property was unlettable or decided that the issue of whether or not the property was lettable was irrelevant to the issue of whether the appellant gained a benefit by living in it rent free for the period of time that she did. Nor did the reasons set out how the Tribunal took account of the repairs, maintenance, and renovations that the appellant carried out between November and December 2014 and other evidence that ZCG benefitted from the appellant living in her home over this period, to the detriment of the appellant, as it led to other savings for ZCG.
We also note that in arriving at a finding that the appellant obtained a benefit by residing in her mother's property without paying rent, the issue of the appellant's financial situation vis-à-vis her own home was not addressed and whether or not she was deriving an income from that asset during the period that she lived in her mother's home up until the date that contracts were exchanged on the appellant's home on 25 May 2015 (Appellant's Appeal Bundle at page 22, para 24 - Witness statement of the appellant dated 22 June 2015).
If the Tribunal formed an adverse view as to the credibility of the appellant's evidence concerning her intentions in relation to the property and whether, for example, she had in fact intended to continue to live in the property rent free but for the NCAT proceedings, it needed to set this out in the reasons.
We conclude that the Tribunal below failed to expose the reasons for making the finding that it did in relation to this critical point, namely, that the appellant obtained a benefit by residing in her mother's property without paying rent.

[15]

Finding of appellant's conflict of interest in proposing to pay herself from her brother's estate

The appellant was also critical of the adequacy of the Tribunal's reasons in relation to the finding that the appellant had not recognised a conflict of interest in proposing to pay herself from her brother's estate, notwithstanding that her mother is the sole beneficiary of that estate. According to the appellant, the Tribunal did not refer to the evidence or other material on which it based its affirmative finding and did not set out its reasoning processes that led it to that conclusion.
The first respondent disagreed and in written and oral submissions set out the bases on which she asserts the Tribunal did set out sufficient reasoning to support the conclusion that the appellant did not recognise her conflict of interest. The first respondent drew attention to the finding by the Tribunal that the appellant "has indicated several times that she intends to pay herself a substantial sum of money from her brother's estate", the reference in the written reasons to the correspondence between the appellant and the first respondent or her lawyers in which the appellant indicated that she believed "that she was entitled to a payment from the estate for her time, loss and labour and for what she described in one email as 'unjust enrichment'", and also the reference in the reasons that by the time of the hearing, the appellant "seemed to have accepted" advice that she would need to make an application to the Supreme Court for commission (Respondent's Submissions, page 7). The first respondent noted that the Tribunal is not required to set out every fact in detail which leads to its reasoning and made reference to evidence that was submitted to the Tribunal, but not referred to in its reasons, that the first respondent submits supports the Tribunal's conclusion. The first respondent also made reference to the Tribunal's reference to the appellant's "apparently very recent decisions to …reconsider her claim to payment from [her late brother's] estate" (Respondent's Submissions, page 7).

[20]

Discussion

The Tribunal's reference that it was "concerned about the level of conflict between [the appellant] and [the first respondent]" in relation to the issue of who should be appointed as the financial manager should not be read as limited to the reference earlier in the reasons to a "dispute" between the appellant and the first respondent concerning Local Court proceedings. We agree with the first respondent's submissions that the reference to a level of conflict between the appellant and the first respondent is a finding that was open to the Tribunal on the evidence before it and does not appear to be an issue upon which there was any dispute between the parties.
The Tribunal's reasons do not, however, explain the relevance of the conflict between the sisters to the conclusion that the appellant was not suitable to be appointed as financial manager for her mother.
In this regard, the respondent referred us to the reference to Holt v Protective Commissioner (1993) 31 NSWLR 227, at page 8 of the Tribunal's reasons in which the Court referred to one of the advantages of the appointment of the then Protective Commissioner (now the NSW Trustee and Guardian) of providing a "dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person". The respondent also noted in oral submissions that conflict between family members is often not in the best interests of the person around whom the conflict exists, but also acknowledged that apart from the reference to Holt, the reasons do not go into any detail as to why it is was important in this case for conflict to be avoided.
Whilst the Tribunal is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties (Pollard v RRR, at [53]).
The Tribunal did not provide an adequate explanation as to why a finding that there was conflict between the appellant and the first respondent led to the conclusion that the appellant was not suitable to be appointed as the private financial manager.
We therefore conclude that the Tribunal below failed to expose in its reasons why, in its view, the conflict between the appellant and the first respondent was a basis for finding that the appellant was not suitable for the role of private financial manager. This ground is established.

[22]

Discussion

An administrator of an intestate estate is entitled to apply for commission to compensate the administrator for the time and effort (or "pains and trouble") involved in administering an estate and the Court may allow such "commission or percentage for the…administrator's…pains and trouble as is just and reasonable, and subject to such notices (if any) as the Court may direct." (Probate & Administration Act 1898 (NSW), s 86(1)). The Court therefore determines what is "just and reasonable".
It is "a question of fact and degree as to whether in all the circumstances it is in the best interests of the incapable person that" a situation involving conflict of interest continue (Re R [2000] NSWSC 886, Young J, at [47]). In a similar vein, "interrelated property interests in a family situation, where a conflict of interest may be 'more apparent than real', should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate" (Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227).
The reasons do not set out how the Tribunal had regard to these matters and appears to treat the fact of the potential conflict of interest raised as sufficient in and of itself to warrant the appointment of the NSW Trustee and Guardian as the financial manager.
The respondent also submits that the Tribunal's finding was justified on the basis that by seeking a commission, a benefit would be conferred on the appellant in breach of her fiduciary obligations as attorney for her mother. The reasons do not, however, frame the finding in this manner and do not address whether, as a finding of fact, by the appellant seeking and potentially receiving the payment of commission as the administrator of an intestate estate she would be receiving a personal benefit (POA Act, s 12) in breach of her fiduciary duties to her mother.
We conclude that this ground is established. The Tribunal below failed to expose the reasons why the Tribunal concluded that a conflict of interest arose in this respect, sufficient to warrant the finding that the appellant was not suitable for the role of private financial manager.

[23]

Grounds 2 and 3 - Relevant and irrelevant considerations

The appellant also argued that the Tribunal failed to take into account a number of relevant considerations set out in paragraph 2 of the Grounds of Appeal and took into account a number of irrelevant considerations set out in paragraph 3 of the Grounds of Appeal. The grounds set out in these paragraphs overlap to a significant extent and, as previously noted, with the sub-paragraphs relating to the grounds of appeal relating to the inadequacy the reasons.
The principles applicable to these asserted questions of law are ones set out in House v R [1936] HCA 40; 55 CLR 499. The High Court explained: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
The principles concerning a failure to take into account a relevant consideration are well accepted (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6, at [26]-[29]).
Similar considerations apply when considering whether irrelevant considerations have been taken into account (C v W [2015] NSWSC 1774, at [62]-[65] and [129]-[131]).
Importantly, where a "discretion is unconfined by the terms of the statute, the court will not find that the decision maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act" (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at [39]).
We note that the POA Act does not specify any mandatory matters that must be taken into account when the discretion of the Tribunal is to be exercised, that is, when deciding whether or not to carry out a review of a reviewable power of attorney (s 36(1)); to decide to conduct a review under s 36(2) but not to make any order under s 36; and to decide to treat the application for review as an application for a financial management order (s 37(1)). That is, the discretion is "at large" but must be exercised judicially.
The appellant argued in written and oral submissions that on the basis of the principles set out in s 4 of the Guardianship Act and the principles espoused in C v W [2015] NSWSC 1774 (at [82]-[96]), "any consideration that was relevant to [ZCG's] welfare and [the appellant's] suitability to continue to act as her Attorney was a legally relevant consideration within the principles laid down by the High Court in the leading authority of Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and any other consideration was a legally irrelevant consideration".
It is clear that the Tribunal, when exercising functions for the purposes of the Guardianship Act, is under duty to observe the principles set out in s 4 of the Guardianship Act, giving primacy to the welfare and interests of the protected person as required by s 4(a) (C v W [2015] NSWSC 1774, at [82]-[100]). The s 4 principles are a "statutory expression of the purposive character of the Supreme Court's inherent (parens patriae) protective jurisdiction" (C v W, at [90]). Further, the centrality of the principles contained in s 4 of the Guardianship Act is reinforced by sch 6, cl 5(1) of the CAT Act which provides that, when exercising its "Division functions for the purposes of the Guardianship Act 1987", the Tribunal is under a duty to observe the principles set out in s 4 of the Guardianship Act.
However, the difficulty with this aspect of the appellant's case is that whilst the functions of the Tribunal in relation to the POA Act are indeed allocated to the Division (CAT Act, sch 6, cl 3(1)), the Tribunal is only under a duty to observe the s 4 principles when the Tribunal is exercising its Division functions for the purposes of the Guardianship Act. The Tribunal below was not required to observe the s 4 principles when exercising its discretion under ss 36(1) and 36(2) of the POA Act and they are not, as the appellant argued, mandatory considerations for the purposes of those provisions although best interests considerations may inform the exercise of the discretions under ss 36(1) and (2) (Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, at [110]).
In any event, we note that when considering the exercise of its discretion under ss 36(1) and 36(2) of the POA Act, the Tribunal did have regard, either explicitly or by inference, to a number of the considerations set out in Ground 2 (relating to the work done to ZCG's house since November 2014 (Ground 2(a)(i)), further work required in late June 2015 in order to get the house into a lettable condition (Ground 2(a)(v)), the exclusive agency agreement entered into by the appellant (Ground 2(a)(vi))) as well as the matters raised in Ground 2(b) and (c).
In addition, a decision maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an "exhaustive list of all the matters which the decision maker might conceivably regard as relevant" (Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363, 375 (Deane J)). We do not consider that the Tribunal erred in this respect by failing to refer to other sub-grounds of Ground 2 (the cost-free use of the garage to store the belongings of ZCG's late son (Ground 2(a)(ii)), the cost-free retention in the house of ZCG's own belongings (Ground (2)(iii)) or improvement in the capital value of the house (Ground 2(a)(iv)).
Ground 2 (d) asserts that the Tribunal failed to take into account the relevant consideration of the advantage in appointing the appellant as ZCG's private financial manager, namely, more economic management of ZCG's estate (freedom from fees) and the appellant's greater familiarity with her mother's assets and liabilities than the NSW Trustee and Guardian's familiarity with them. In oral and written submissions the appellant submitted that the failure to take into account the advantages of appointing the appellant as manager was relevant to ZCG's welfare and interests and was therefore an error of law.
In considering whether a person is "suitable" to be appointed as the manager of an estate under the Guardianship Act (s 25M), the Tribunal is under a duty to observe the s 4 principles for the reasons previously outlined, with the welfare and interests of the person being the "paramount consideration". The list of possible considerations set out in the Holt decision concerning the competing advantages of the appointment of a private manager and the (now) NSW Trustee and Guardian are not mandatory considerations, but provide guidance as to the matters that may be relevant to the consideration of whether the appointment of a particular individual is in the interests of the person under management (see also M v M [2013] NSWSC 1495, at [50]).
Whilst it would have been preferable for the Tribunal to have made express reference to the evidence of any potential advantages to ZCG if the appellant were to be appointed as the private manager, the Tribunal did not fail to have regard to mandatory considerations by not doing so. In considering who to appoint as ZCG's manager, the Tribunal made reference to the matters that it believed were relevant to ZCG's welfare and interests. It did not fail to have regard to s 4(a) of the Guardianship Act.
For the reasons previously outlined, we take the view that this Appeal is properly viewed primarily as one asserting a failure to give adequate reasons and this was the primary focus of the appellant's case at the appeal hearing. On the available material, we find that the appellant has not shown that the Tribunal omitted mandatory considerations from its decision making. This ground of appeal is not established.
Similarly, for the reasons discussed above, we have concluded that the ground asserting that the Tribunal took into account irrelevant considerations is not established.

[26]

Suitors Fund

The Appellant sought an order from us in the following terms: A recommendation under Section 6C of the Suitor's Fund Act 1951 that the Director-General pay such amount from the Suitor's Fund towards the Appellant's costs of this appeal as the Director-General assesses, having regard to the circumstances of this case.
Section 6 of the of the Suitors' Fund Act 1951 (NSW) (Suitors' Fund Act) provides: 6C Payments not otherwise authorised by this Act If: (a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings, (b) the party is not otherwise entitled to a payment from the Fund in respect of the costs, and (c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections, the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case. A payment under this section shall not exceed $10,000.
The Appellant's submissions on this matter drew our attention to the decision of the Tribunal in Health Care Complaints Commission v Perceval [2014] NSWCATOD 38, at [220], stating that the Tribunal had "left open the question whether Section 6C applied to the circumstances of the case". No submissions were provided by the Appellant as to why we should exercise any authority provided under the Suitors' Fund Act, if we were of the view that we were vested with such authority.
The Appeal Panel of the Tribunal has since determined that the Suitors' Fund Act does not apply to internal appeals heard by NCAT. Section 6 of that Act makes it clear that the legislation only apples to appeals to the Supreme Court, the High Court, the Industrial Relations Commission of New South Wales, the District Court of New South Wales or the Land and Environment Court: Gaynor v Burns [2015] NSWCATAP 150, at [61], and Berger v Boulder Projects Pty Ltd [2015] NSWCATAP 274, at [43].
As the Suitors' Fund Act does not apply to appeals heard by NCAT, we have no jurisdiction to make the order sought by the Appellant, that is, to make a recommendation that the Director General make a payment pursuant to s 6C. Any such determination is a matter for the exercise of a discretion by the Director General.

ZBC v ZBD

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

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Legislation Cited (7)

Cases Cited (44)

Cited By (21)