ZOU v ZOV

The original application to the Tribunal

1. In her application lodged on 5 August 2019 Mrs ZOU recorded correctly that the NSW Trustee was her mother's financial manager.
2. In para 3.2 of her application Mrs ZOU confirmed, by "ticking the box", that she sought "To revoke the current financial management order on the grounds that it is in the best interests of the person to do so".
3. Mrs ZOU stated: The Public Trust has [sic] got my mother's finances in their best interest as she is only a client and a number. They have wasted a lot of mum's pension on unnecessary expenses and have too many clients to take care of for the clients [sic] best interest
4. Under the heading "How will the person's finances be looked after if the financial management order is revoked" Mrs ZOU responded: I have the best interests at heart for mum's finances. I have now the time to take back mum's finances to take care of as I am not working. I can enquire on bills that are overcharged, keep insurance on home current, find 3 quotes when required for maintenance to pick one that will save money.
5. Mrs ZOU explained in her application that the arrangements she proposed would be in her mother's best interest because "[s]he will save a lot of money".

The grounds of appeal

1. Mrs ZOU relies on three grounds of appeal in her Notice of Appeal. She asserts: The tribunal was in error on 19 December 2019 in finding to resolve the financial management order on these grounds: (1) it failed to find that it is in the best interest of [Mrs ZOV] that it should be revoked. (2) it failed to find that the applicant [Mrs ZOU] is able to and capable of providing more prompt attention to her mother's needs than NSWTAG. (3) it failed to find that the applicant, [Mrs ZOU] has the support of 2 other members of [Mrs ZOV's] children
2. In her Notice of Appeal Mrs ZOU completed the Part C of the form and sought the following orders from the Tribunal if the appeal was successful: Give back the applicant's POA that [Mrs ZOV] has originally appointed when she was in the right frame of mind for [Mrs ZOV's] best interests. Estate back to [Mrs ZOV] as her will states

Provisions of the legislation and authorities relevant to this appeal

1. This appeal is an internal appeal governed by s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). Section 80 provides as follows: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
2. The Tribunal's powers on hearing and determining the Appeal are found in s 81 of the CAT Act. Section 81 provides as follows: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
3. Thus, it may be seen that an internal appeal may be brought on question of law as of right. A number of the decisions of the Appeal Panel of the Tribunal have explained what is meant by a question of law. In John Prendergrast and Vanesa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATOD 69 the Appeal Panel helpfully summarised matters which constitute a question of law. The Appeal Panel, noted that "questions of law" include: 1. A failure to give adequate reasons for a decision; 2. Whether the Tribunal has identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law has been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account a relevant (mandatory) consideration; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision maker could have made it.
4. The principles set out by the Appeal Panel in John Prendergrast and Vanessa Prendergrast v Western Murray Irrigration have been referred to with approval by the Supreme Court of NSW in C v W [2015] NSWSC 1774 (see also the decision of Young P in Re R [2000] NSWSC 886 at [24] and [25]).
5. If a question of law, which grounds an appeal as of right is not established, the Appeal Panel will generally only grant leave if the appeal raises a matter of public importance. We determined this appeal did not raise a general issue of public importance.

Clarification of the grounds of appeal

1. Mrs ZOU was not legally represented at the hearing of the appeal. At the commencement of the appeal hearing on 14 May 2020 we canvassed with Mrs ZOU the articulation, or framing, of the grounds of the appeal she wished to agitate. After discussion, assisted by the Tribunal, she identified the questions of law she wished to raise were: 1. that the Tribunal below had failed to consider a mandatory consideration, namely, the best interests of her mother; and/or 2. that the decision was so unreasonable that no reasonable decision maker could have make it.
2. Following the adjournment, and after we had canvassed with Mrs ZOU matters that have been identified in the caselaw as constituting questions of law, by reference to the sound recording she raised additional grounds of appeal. The additional grounds are: 1. a lack of procedural fairness; 2. a failure to take into account a relevant consideration; 3. a lack of adequate reasons; 4. no evidence to support a finding of fact.

Documents relied on by the appellant in this appeal

1. Mrs ZOU relied on her Notice of Appeal and submissions including her submissions dated 18 June 2020. She sought to adduce additional documents in support of her appeal lodged with the Tribunal on 6 April 2020. As we did not find this appeal required us to grant leave to appeal, and thus consider rehearing the matter, we did not admit the further evidence. We explained this decision to Mrs ZOU during the hearing in May 2020.
2. Mrs ZOU also relied on the Replies and submissions filed by her brother Mr ZOX, and her sister, Ms ZOW.
3. We also considered the submissions lodged by Mrs ZOY. However, these submissions were directed to Mrs ZOY's objection to either of her sisters being appointed as Mrs ZOV's financial manager and not directly relevant to the grounds of appeal.

The reasons of the Tribunal the subject of the appeal

1. It aids understanding of our reasons if we briefly summarise the reasons of the Tribunal which heard the application. The reasons commence noting some facts about Mrs ZOV including her age (80 years at the date of the hearing), her present residence in an aged care facility and that she had previously lived in her own home in a Sydney suburb. The reasons also recorded the fact that Mrs ZOV has four children including the appellant, Mrs ZOU.
2. The reasons also noted Mrs ZOV's diagnosis of Alzheimer's dementia. That diagnosis is not in dispute in this appeal.
3. The general background information is followed by a chronology setting out dates and the nature of the substitute decision making instruments executed by Mrs ZOV. Relevant to a criticism raised by the appellant in this appeal is the fact that Mrs ZOV executed a Power of Attorney on 18 September 2013 by which document she appointed Mrs ZOY as her attorney. Also relevant is the fact that between 14 October 2016 and 31 March 2017 the appellant and her sister Ms ZOW were appointed as their mother's financial managers. However, that appointment was revoked and the NSW Trustee was re-appointed as financial manager.
4. The chronology records that Mrs ZOU and Ms ZOW were appointed as their mother's guardians on 5 June 2019 for a period of one year.
5. In [6]-[11] of the reasons, the Tribunal sets out, correctly, the matters the application required the Tribunal to determine, and at [12] identified issues relevant to the determination.
6. The Tribunal considered and rejected the prospect that Mrs ZOV had the capacity to manage her own financial affairs. It concluded the issue of capacity was not a basis for revoking the financial management order. There is no challenge to this aspect of the Tribunal's reasoning.
7. Under the heading "should the order be revoked because it is the best interests of the person" the Tribunal recorded Mrs ZOU's position that she would like to take over the management of her mother's affairs.
8. At [20] the Tribunal noted, correctly, that if the financial management order was revoked then the Power of Attorney appointing Mrs ZOY would be "re-enlivened". The Tribunal then observed because of the conflict between Mrs ZOU and Mrs ZOY, it was clear that Mrs ZOU would "be completely opposed to that suggestion", namely, that Mrs ZOY should have responsibility for her mother's financial affairs.
9. From [23]-[63] the reasons deal with various complaints raised by Mrs ZOU as to why she asserted that it was not in her mother's best interests for the appointment of the NSW Trustee as her financial manager to continue. The complaints included complaints that the NSW Trustee had: 1. failed to communicate properly with her and in particular that statements had not been provided; 2. failed to advise the family Mrs ZOV's property was not insured; 3. failed to maintain the house; 4. refused to pay for funeral insurance; 5. neglected swimming pool maintenance; and 6. proposed the sale of Mrs ZOV's property at an undervalue to pay a bond for Mrs ZOV's aged care accommodation and expenses.
10. The reasons recorded the evidence in support of each of the issues raised by Mrs ZOU. The Tribunal made a number of findings including its acceptance of evidence from the representative of the NSW Trustee that statements had been sent to a person nominated by Mrs ZOV at an interview when she had been accompanied by Ms ZOW. The Tribunal found that the time the insurance on Mrs ZOV's property lapsed was during the period that Mrs ZOU and her sister Ms ZOW were the financial managers.
11. The Tribunal recorded the evidence of both Mrs ZOU and the NSW Trustee about maintenance of Mrs ZOV's property and found that there had been a delay by family members in following up obtaining repairs by an electrician and a "slight delay" in payment by the NSW Trustee. Crucially, at [44] the Tribunal noted that at the relevant time three or four family members were living in the home, that they had not been proactive in resolving maintenance problems promptly and bringing the matters to the attention of the NSW Trustee for reimbursement, if appropriate. Significantly, the Tribunal noted the family members had not been paying rent for their occupation of the property.
12. The Tribunal accepted the NSW Trustee's explanation that the request for funeral insurance had been rejected because Mrs ZOV's income, after payment of expenses, was insufficient to afford such insurance.
13. The Tribunal recorded the evidence of Mrs ZOV's daughter, Ms ZOW that she, or her 18 year old daughter, had not been able to maintain the pool. The Tribunal made a finding that there was no reason why family members who were not paying rent, but who were now maintaining the pool by placing chlorine in it, could not have previously done so.
14. At [56] the Tribunal recorded that Mrs ZOU explained the main reason her application had been made was because the NSW Trustee intended to sell the property for $900,000 to $950,000 which she asserted was an undervalue, and because the property is occupied by her sister Ms ZOW and Mrs ZOW's daughter. Ms ZOW had formerly been Mrs ZOV's carer.
15. The reasons then set out in some detail financial material provided by the NSW Trustee and the Trustee's view that "it may be inevitable to sell the property, although it did not propose to do so at $900,000".
16. Significantly, the Tribunal then recorded why it found it was in Mrs ZOV's best interests for an independent financial manager to remain as the manager of Mrs ZOV's affairs. The Tribunal explained at [63] and [64] the basis of its conclusions that it was not in Mrs ZOV's best interests "that she be placed in a situation where she cannot derive any benefit from her major asset at the same time as her liabilities are increasing rapidly as a result of interest being charged on an unpaid RAD".
17. At [67] the Tribunal found Mrs ZOU's concerns that the house might be sold did not constitute evidence "that the Trustee has failed to act in Mrs ZOV's best interests". Finally, the Tribunal also noted because of the degree of conflict between Mrs ZOV's children, it would not be in her best interest for the appointment of the Trustee to be revoked.

Consideration

1. The decision the subject of the appeal was an application for the revocation of a financial management order. As we have earlier noted, that order was made on 31 March 2018 when the Tribunal appointed the NSW Trustee as the financial manager.
2. The grounds of appeal originally identified at the initial hearing require us to first consider whether the Tribunal failed to consider Mrs ZOV's best interests. Secondly, we must examine whether the decision was so unreasonable that no Tribunal could have reached the decision not to revoke the NSW Trustee's appointment as financial manager.
3. As a result of the further identified grounds we must also consider whether there was a lack of procedural fairness afforded to the parties, and whether or not the reasons of the Tribunal were adequate. Additionally, we must also consider whether the Tribunal took into account a relevant consideration, or made an error in respect of a material finding of fact.

Relevant statutory provisions

1. It is useful we commence our consideration of the identified questions of law raised by first setting out the relevant provisions of the Guardianship Act 1987 (NSW) which applied to the application at first instance.
2. Division 2 of Part 3A of the Guardianship Act 1987 deals, among other matters, with the criteria for the review and revocation of a financial management order. Division 3 of Part 3A deals with applications to review the appointment of a financial manager. The Tribunal may, when conducting an application to review a financial management order, take such action as it could have taken if conducting a review of the appointment of the financial manager under Division 3 of the Guardianship Act. Mrs ZOU did not seek to review the appointment of the NSW Trustee (The Financial Manager) in her application but to revoke that appointment. The Tribunal at first instance drew the inference that Mrs ZOU was not only seeking revocation of the appointment of the NSW Trustee but that she was seeking to be appointed as financial manager (see [21]).
3. Section 25R of the Guardianship Act sets out the persons eligible to seek the revocation of a financial management order.
4. Section 25N requires the Tribunal to carry out a review of a financial management order in certain circumstances. In particular, and of relevance to this appeal, is s 25N (4) (b). 25N Review of financial management orders (1) The Tribunal may order that a financial management order be reviewed within a specified time. (2) The requirement for a review may be contained in the financial management order or in a subsequent order. (3) The Tribunal must begin any required review within the time specified in the relevant order. (4) The Tribunal: (a) may, at any time on its own motion, and (b) must, on an application under section 25R for revocation or variation of the order, review a financial management order. (5) If a financial management order would cease to have effect before the completion of such a review, the order is taken to be extended until the completion of the review. (6) Before carrying out the review, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the proceedings. The review is taken to have commenced on the issue of such a notice. (7) A failure to serve notice in accordance with this section does not vitiate the decision of the Tribunal on the review. [our emphasis]
5. The Tribunal's powers to revoke (or confirm or vary) a financial management order are found in s 25P. That section is in the following terms: 25P Action on review (1) On reviewing a financial management order under section 25N, the Tribunal: (a) must vary, revoke or confirm the order, and (b) if it considers it appropriate to do so - may take such action with respect to the appointment of the manager of the protected person's estate as the Tribunal could take on a review of such an appointment under Division 3. (2) The Tribunal may revoke a financial management order only if: (a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or (b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs). (3) In this section, vary, in relation to a financial management order, includes to exclude (or remove an exclusion of) a specified part of the protected person's estate from the order. [our emphasis]
6. As it was not in dispute that Mrs ZOV lacked the capacity to manage her financial affairs, the Tribunal was only empowered to revoke the financial management order if it considered it was in the best interests of Mrs ZOV, that the order be revoked. This was the first step the Tribunal was required to undertake.
7. If the Tribunal determined that the financial management order should be revoked, it could, if it determined it was in Mrs ZOV's best interests, appoint a new financial manager under s 25U (4) (c) of the Guardianship Act (the second step). Section 25U, which is found in Division 3 provides as follows: 25U Action on review (1) On reviewing its appointment of the manager of a protected person's estate, the Tribunal may: (a) revoke the appointment, or (b) confirm the appointment. (2) The Tribunal may also review the financial management order under which the manager was appointed, and may take any action in respect of that order that it may take on a review of such an order under Division 2. (3) If the relevant financial management order is not revoked under subsection (2), the Tribunal is to appoint another person as manager of the estate subject to the order in substitution for a person whose appointment as manager has been revoked under this section. (4) The Tribunal may revoke the appointment under review only if: (a) the person appointed seeks the revocation, or (b) the Tribunal is satisfied that it is in the best interests of the protected person that the appointment be revoked, or (c) the financial management order in respect of the estate concerned is revoked. Note. Section 25Q provides for the disposal of the estate on revocation of a financial management order. [our emphasis]

Did the Tribunal fail to consider a mandatory consideration?

1. The legislation positively requires the Tribunal to evaluate the evidence and make findings that it is in the best interests of a person, who lacks capacity to manage their own financial affairs, if it is to revoke a financial management order that has been made for that person (the first step). The legislation also imposes a positive requirement that a Tribunal conducts a similar exercise prior to the revocation of the appointment of the financial manager (the second step).
2. Mrs ZOU raises a number of criticisms about the NSW Trustee's actions or lack of actions which she asserts have not been in her mother's best interests.
3. The areas which Mrs ZOU highlights include lack of provision of statements, an asserted failure by the NSW Trustee to provide an explanation to her sister about the need to provide evidence to Centrelink of her carer role because her sister is "not an admin person" [original emphasis], a submission that the NSW Trustee proposed to sell the property at under market value "like councils and banks do, just to get nursing home fees paid" and asserted improper weight was given to the conflict between herself, Mr ZOX, Ms ZOW and Mrs ZOY.
4. We did not identify an error in the presiding Member's reasoning on the topics relevant to Mr ZOV's best interests. The Member carefully addressed each topic raised by Mrs ZOU as disclosing matters going to her mother's best interests, reviewed the evidence and made findings of fact.
5. The presiding Member accepted and preferred the uncontroverted evidence of the NSW Trustee's representative that statements were sent to a nominated family friend. That friend did not respond to a telephone call from the Tribunal on the asserted basis the call was from an unknown number. The Member also recorded that Mrs ZOU had obtained a statement from a staff member of the NSW Trustee. That statement is not disputed. The Tribunal also recorded that there are prohibitions which limit the Trustee's ability to distribute private financial information to third parties.
6. The presiding Member reviewed the evidence concerning the insurance in respect of Mrs ZOV's home and was satisfied on the evidence of the NSW Trustee that the home insurance had been renewed on and from 23 October 2019. Criticism raised about the failure to maintain insurance during a period when the home suffered storm damage was found to have occurred during the period of Mrs ZOU and Ms ZOW's financial management.
7. The presiding Member also comprehensively dealt with issues of repairs to the property and found no evidence to support a suggestion the NSW Trustee had unduly delayed payment of urgent repairs or that this demonstrated a failure to act in Mrs ZOV's best interests.
8. It appears the nub of the submissions asserting a failure of the Member to consider Mrs ZOV's best interests is directed to the issue of the sale of Mrs ZOV's property. It is clear that Mrs ZOU and the respondents to the appeal, other than Mrs ZOY, are strenuously opposed to the sale of the property. The presiding Member made findings that the family members misunderstood the NSW Trustee's proposals in respect of the property. The presiding Member explained the NSW Trustee's position was that the sale of the house would be necessary if family members cannot contribute to Mrs ZOV's expenses.
9. The presiding Member recorded that Ms ZOW had remaining living in the house rent free as her mother's carer. The presiding Member considered that evidence but found the situation had changed (with Mrs ZOV now living in an aged care facility where she was rapidly incurring expenses and not receiving any benefit from her major asset).
10. As we have previously recorded, the presiding Member made findings it was in Mrs ZOV's best interests that an independent financial manager be retained to ensure Mrs ZOV "can derive maximum benefit from her assets".
11. At [65] the presiding Member discussed Mrs ZOU's proposals that, if she was her mother's financial manager she would at some time sell the house at market value, pay out Mrs ZOV's liabilities and place the balance of the sale into a trust fund to be distributed "eventually" to herself and her siblings.
12. The Tribunal concluded it was not satisfied that Mrs ZOU's concerns about the sale of the house "constitutes evidence that the Trustee has failed to act in [Mrs ZOV's] best interest". The Tribunal also referred to the conflict between Mrs ZOV's children as further support that it would not be in Mrs ZOV's best interest for the order to be revoked.
13. In undertaking the exercise it was required to do as the first step, the Tribunal carefully assessed and made findings about all of the issues raised by Mrs ZOU about alleged lack of due care or management of Mrs ZOV's financial affairs but found them without substance. No error is demonstrated in Mrs ZOU's submissions about the Tribunal's fact finding process. Rather she is upset that, in many instances, the Tribunal, as it was entitled to do, accepted the evidence of the NSW Trustee's representative rather than her evidence, or found family members had not acted in Mrs ZOV's best interests.
14. The Tribunal's reasons disclose a careful assessment of matters relevant to Mrs ZOV's best interests. This ground of appeal has no merit.

Did the Tribunal fail to afford procedural fairness?

Was the order so unreasonable that no reasonable Tribunal could have made the order?

1. It is convenient that we deal with these three grounds of appeal together as Mrs ZOU's submissions, particularly her submissions of 18 June 2020, assert similar facts to support each ground.

Relevant authorities

1. It is not in doubt that the Tribunal is bound to observe the rules of natural justice and procedural fairness. This requirement is enshrined in s 38 of the CAT Act. The principles of natural justice are well-known (see Kioa v West (1985) 159 CLR 550; [1985] HCA 81; ZHJ v ZEY [2018] NSWCATAP 76)). The rules require parties receive a fair hearing by an impartial decision maker.
2. Nor is it in doubt that reasons must be adequate to explain how a decision maker has reached his or her decision. The authorities on this topic are usefully summarised by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110. The provision of reasons in a Tribunal setting are discussed by Bell P in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231. The reasons must be assessed having regard to the nature of the proceedings, and the complexities involved. Generally, Tribunal reasons are not to be scrutinised in an "over-zealous" fashion or as if a curial decision (see Minister for Immigration Ethnic Affairs v WU Shan Liang (1996) 185 CLR 259; Q Super Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55 at [89]).
3. The modern law of unreasonableness is explained in a number of decisions of the High Court of Australia and principally in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332. In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [84] Nettle and Gordan JJ explained. Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.

Consideration - Did the Tribunal fail to afford procedural fairness; were the Tribunal's reasons adequate; was the order so unreasonable that no Tribunal could reasonable have made the order

1. Before setting out our consideration of these grounds it is important that we record that prior to the resumed appeal hearing we obtained from Mrs ZOU the sound recording of the proceedings before the Tribunal. We listened to the whole of the hearing.
2. We commence our consideration of these grounds of appeal by reference to Mrs ZOU's submissions in support of the appeal. Her original and additional submissions are, in effect, a detailed critique or commentary on the reasons for decision. She commences her submissions by stating she had been "unfair [sic] advantages" because she felt the presiding member had "already discussed my concerns with [the NSW Trustee's representative] before I arrived at the Tribunal and are both on the same team" [original emphasis].
3. At various points in her submissions Mrs ZOU referred to the findings the Tribunal made where it accepted and/or accepted and preferred the evidence the Tribunal received from the NSW Trustee's representative. She referred to this as "[the NSW Trustee representative] and [the presiding Member] working together as a team."
4. The submissions could be said to raise allegations of actual or apprehended bias of the presiding Member or a breach of procedural fairness to Mrs ZOU, but the submissions have no foundation in fact. They are completely unsupported by the sound recording of the hearing.
5. In her submissions dated 18 June 2020 Mrs ZOU refers, not to the member's reasons but to statements in the report of the NSW Trustee regarding provision of statements. The submission does not address or contain any link to demonstrate how this statement is asserted to constitute procedural unfairness or bias by the presiding Member.
6. In her submissions of 18 June 2020 Mrs ZOU makes assertions concerning the asserted failure of the presiding Member to contact the person nominated to receive statements from the NSW Trustee on a different phone number to that initially provided to the presiding Member. The sound recording does not support Mrs ZOU's submission. The submission is without merit.
7. We acknowledge that Mrs ZOU is dissatisfied with the orders made by the Tribunal and aggrieved that the NSW Trustee's appointment was not revoked. We also understand the difficulties faced by a self-represented litigant and how, without legal advice, Mrs ZOU fails to appreciate the independence of the Tribunal and the separate independent statutory role of the NSW Trustee. However, we are satisfied, there is no probative evidence to support the allegations of bias, prejudgment or lack of procedural fairness, and in these circumstances this ground must fail.
8. As will become apparent when we discuss the remaining grounds agitated by Mrs ZOU, the ground of failure to provide adequate reasons is not substantiated. The principal argument advanced by Mrs ZOU in support of this ground is directed, not to the Tribunal's reasons but to the recommendation in the NSW Trustee's report that an independent financial manager should be retained for Mrs ZOV to avoid conflict within the family and in her best interests.
9. Again, and with respect to Mrs ZOU, who we are conscious did not have the benefit of legal advice, it is clear that her position is that because she and two of her siblings are in agreement, it would be in her mother's best interests that the Power of Attorney granted to her and Ms ZOW on 7 August 2013 should be "re-instated". It is perhaps the misunderstanding of the legal consequences of the granting of the Power of Attorney to Mrs ZOY in September 2013 and lack of understanding that the Tribunal had to consider the impact of the conflict between family members on Mrs ZOV's best interests which has led to the challenges to the presiding Member's reasons. However, we are unable to discern any basis to find a ground of lack of adequate reasons established. The reasons accurately set out relevant background information, summarise the law to be applied, and make relevant factual findings based on the evidence before the Tribunal. The Tribunal's reasoning exposes the basis for its decision. The lack of adequate reasons ground is without merit.
10. We deal with the final of the three grounds of appeal identified above by reference to the "two steps" the legislation requires the Tribunal to undertake. We first consider Mrs ZOU's submission that the Tribunal's decision not to revoke the financial management order was not one which a reasonable decision maker could have made, given the evidence before it and the case advanced by her.
11. In her application, Mrs ZOU sought to have the financial management order made in respect Mrs ZOV's estate revoked, and said that this would be in her mother's best interests because, she said, she would thereby be able to manage her mother's affairs under a Power of Attorney granted by her mother to her and her brother in August 2013.
12. As we have already explained, unfortunately, Mrs ZOU did not understand, or failed to recognise when it was advanced before the Tribunal, that if the order was revoked, she would not have the authority to manage her mother's affairs because the Power of Attorney granted to her was superseded by the Power of Attorney granted to her sister, Mrs ZOY.
13. The Member's reasons clearly record that, prior to the financial management order being made, Mrs ZOV had executed an appointment of Mrs ZOY as her sole attorney under an enduring power of attorney. There is no evidence before us, or referred to by the Tribunal, that this appointment was ever revoked. The effect of the subsequent making, variation and confirmation of the financial management order was that the power granted to Mrs ZOY by that document is suspended during the course of the financial management order: s 50(3) Powers of Attorney Act 2003 (NSW) (POA Act).
14. Mrs ZOU did not seek to review the appointment of the NSW Trustee in her application. Thus, if the financial management order was revoked, Mrs ZOY's authority as attorney would have been re-instated.
15. The relevant findings of the Tribunal were contained at [19]-[21] of its reasons for the decision, as follows: The applicant told the Tribunal that she seeks the revocation of the order in its entirety because she would like to take over the management of her mother's affairs. The Tribunal notes that if the financial management order were to be revoked in its entirety, the power of attorney made on 18 September 2013 appointing Mrs ZOY as attorney would be re-enlivened. The Tribunal did not understand the applicant to be suggesting that Mrs ZOY should resume the management of their mother's affairs. Indeed, the degree of conflict that was evident between these parties made it abundantly clear to the Tribunal that the applicant would be completely opposed to any such suggestion. On that basis, the Tribunal inferred that the applicant's main goal was to seek the revocation of the appointment of the NSW Trustee and Guardian and an order appointing the applicant as financial manager in the Trustee's stead.
16. Mrs ZOU complains that the Tribunal referred to these issues, and says that she never sought to reactivate the power of attorney given to Mrs ZOY. She goes so far as to state in her submissions that "the conflict with our sister, [Mrs ZOY], will not be resolved in this lifetime. We are not the first or last dysfunctional family that exists today in this world." Unfortunately, in her submissions dated 18 June 2020 Mrs ZOU makes a number of very derogatory statements about Mrs ZOY. They are irrelevant to this appeal and it is unnecessary that we repeat them except to the extent we note the submissions demonstrate the deep and divisive conflict between family members.
17. It is apparent that the Tribunal was aware of and properly considered the consequence of the revocation of the financial management order regarding Mrs ZOV's estate, which was a resumption of Mrs ZOY's authority to operate on the power of attorney granted to her in 2013 by Mrs ZOV.
18. In these circumstances it was clearly open to, and not unreasonable for, the Tribunal to determine it was not in Mrs ZOV's best interests to revoke the financial management order.
19. The second aspect of this ground of appeal is closely interwoven with issues raised in the first identified ground of appeal. In summary, Mrs ZOU submits that the weight of the evidence supported a finding that the NSW Trustee was not acting in her mother's best interest and she should be appointed as financial manager. It is unnecessary we repeat Mrs ZOU's areas of complaint as these are discussed in and overlap with her ground of appeal directed to failure to take into account a mandatory consideration.
20. We turn now to consider whether the evidence, taken as a whole, demonstrates that no reasonable decision maker could have concluded that it was in Mrs ZOV's best interests not to revoke the financial management order.
21. The evidence before the Tribunal, which was not challenged by Mrs ZOU in her submissions, included evidence that: 1. Ms ZOW and her daughter, at least, continue to live in Mrs ZOV's home without making any substantial financial contribution toward its maintenance, a position which is supported by Mrs ZOU; 2. the failure of those living in the home to maintain the swimming pool led to a fine being issued by the local Council to Mrs ZOV; 3. members of the family had requested that the NSW Trustee continue to maintain the pool at the expense of Mrs ZOV despite their use of the property on an ongoing basis, rent-free, and in circumstances where Mrs ZOV's income was exceeded by her outgoings. This conduct was also tacitly approved of by Mrs ZOU who did not suggest she would implement any immediate change to present arrangements. 4. Mrs ZOV's circumstances have changed since she made decisions to allow her children and other family members to remain in her home rent free; 5. Mrs ZOV currently derives no benefit from her major asset at a time when her liabilities are increasing rapidly as a result of interest being charged on an unpaid refundable accommodation deposit: at [63] of the reasons; 6. the Trustee had sought financial contribution from members of Mrs ZOV's family when they were living in her home, but family members resisted that proposal; 7. Mrs ZOV's home was damaged by storm at a time when her estate was managed by Mrs ZOU and Ms ZOW and that as financial managers they had failed to keep the property insured; and 8. the Tribunal had previously varied the financial management order to provide for Mrs ZOV's estate to be managed by members of her family, instead of the Trustee, but that this appointment had been revoked and the appointment of the Trustee re-instated.
22. In our view, no appealable error has been demonstrated by Mrs ZOU. There was ample evidence before the Tribunal, including that enumerated in the previous paragraph, and highlighted by us in respect of the first ground which supported the conclusion reached by the Tribunal in the exercise of its discretion. The decision was not arbitrary, capricious or so unreasonable that no decision maker could have made it.
23. The unreasonableness ground has no merit.

Did the Tribunal fail to take into account a relevant consideration?

1. As noted above, this ground of appeal and the ground asserting there was no evidence to support a finding of fact were only identified after we permitted the adjournment to obtain the sound recording.
2. This ground is squarely based on the decision of the High Court in House v The King (1936) 55 CLR 499; [1936] HCA 40. The High Court explain: 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.
3. Mrs ZOU's first submission identified as relevant to this ground asserts a failure by the Member to take into account as a relevant fact that the NSW Trustee's decision not to take out funeral insurance for Mrs ZOV will leave her without insurance at her death.
4. This asserted error is without merit. The Tribunal accepted that Mrs ZOV did not have the funds to pay funeral insurance premiums. It is clear that this matter was taken into consideration and the NSW Trustee's evidence on the topic accepted.
5. The second asserted failure to take into account a relevant consideration, relates to an assertion that the NSW Trustee's representative did not assist or explain to Ms ZOW how to complete a Centrelink form in her capacity as a carer for Mrs ZOV. No submission is made that asserts error by the presiding Member on this topic. At its highest, this ground appears directed to Mrs ZOU's complaint that the presiding Member accepted and preferred, as she was entitled to do, the NSW Trustee's representative's evidence rather than her evidence.
6. The submissions also assert that the NSW Trustee, not the presiding Member, failed to take into account a relevant consideration namely that although Mrs ZOV is required to pay a Refundable Accommodation Deposit (RAD) at her Aged Care Home, that her home will not be taken into consideration as an asset for a period of two years if it is occupied by a carer.
7. The nub of this asserted ground appears to be Mrs ZOU's concern that her mother's home would be sold at an undervalue. This was not the evidence before the Member. Rather the presiding Member found, as she was entitled to do on the evidence and in the proper exercise of her discretion at [63]-[64], that Ms ZOW was not paying rent for the occupation of Mrs ZOV's home and Mrs ZOV was required to pay interest on the unpaid RAD. In these circumstances the presiding Member concluded it was in Mrs ZOV's best interests to have an independent financial manager.
8. We are not satisfied that the presiding Member took into account an irrelevant consideration or failed to take into account a relevant consideration in the exercise of her discretion. In reaching this conclusion we are cognisant of the comments of Lindsay J in C v W [2015] NSWSC 1774 at [45] about the limits of appellate interference with a discretionary decision. This ground is not established.

Conclusions

1. Having found no merit in any of the grounds agitated, it follows that the appeal must be dismissed.

Non-publication order

1. Section 65 of the CAT Act, except with the consent of the Tribunal, prohibits the publication or broadcast of the name of any person who appears as a witness, the person to whom the proceedings relates or who is mentioned or otherwise involved in the proceedings in the Guardianship Division or an internal appeal against decisions made in the proceedings.
2. Section 65(3) permits the publication of an official report of the proceedings which would otherwise be prohibited.
3. Because of the sensitive nature of the matters raised in this appeal, and to respect the privacy of the parties, we have made a non-publication order and anonymised the names of the parties.

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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2020