ZUZ v ZVA

Background to appeal

1. On 19 June 2012, ZVA made an enduring power of attorney (enduring power of attorney) that appointed the Attorney and Mr Z (the Attorney's son) as his attorneys on a joint basis but with the proviso that if one of the attorneys is unable or unwilling to act then the other attorney can act severally.
2. The enduring power of attorney authorised the attorneys to "exercise the authority conferred on my attorney by Part 2 of the Powers of Attorney Act 2003 to do on my behalf anything I may lawfully authorise an attorney to do".
3. There were no additional powers or restrictions specified in the enduring power of attorney. Clauses enabling the attorneys to give reasonable gifts and to confer benefits on the attorneys or others, were struck out.
4. The appointments were accepted in writing by both appointed attorneys on 19 June 2012. The enduring power of attorney was stated to come into operation immediately.
5. On 28 May 2014, Mr Z resigned his appointment in writing. This had the effect of leaving the Attorney as the sole attorney for ZVA from that date.
6. ZVA's wife lodged an application in late 2020 to have the enduring power of attorney reviewed. In her application, ZVA's wife set out the following reasons for her request to have the review conducted: Why do you think a review of the enduring power of attorney is needed? [The Attorney] has closed joint bank account between [ZVA and the wife] Re-directed [ZVA's] pension to [the ACF] with [the Attorney] as the nominee [ZVA] did not have capacity to give power of attorney in 2012 due to his dementia There is an ongoing, unresolved dispute between [the Attorney] and [ZVA's wife] re the proceeds of the sale of [ZVA and the wife's] home and the purchase of assets with the proceeds placed in [the Attorney's] name
7. Relevant to the issues raised in this appeal, the application also stated as follows: [ZVA's wife's] current dwelling has been purchased under [the Attorney's] name (with the proceeds of the sale of [ZVA and the wife's] home) and [ZVA's wife] is fearful [the Attorney] will sell the home without her consent.
8. The application to review the enduring power of attorney was first listed for hearing on 28 January 2021 but was adjourned on a part heard basis. The hearing was re-listed for hearing on 5 February 2021 but was again adjourned on a part heard basis after the Tribunal agreed to a request made by the wife to adjourn the matter due to her ill-health. The matter was re-listed on 18 March 2021. The Tribunal heard the matter on that date and reserved its decision. The orders of the Tribunal were made and issued to the parties on 1 April 2021. The Reasons for Decision were issued to the parties on 7 April 2021: GFN [2021] NSWCATGD 7.
9. The Tribunal set out the following background to the proceedings: [27] In or around late 2012, through to 2014 and later, [ZVA and his wife's] lives were in chaos. Their business, a bus company, was going broke and the financiers had stepped in and put it in the control of what [ZVA's wife] and [the Attorney] describe as "a liquidator". [28] The business was owned and operated by a company called [Company ABC] which was trustee [for the family trust of ZVA and his wife]. [ZVA and his wife] were directors and shareholders of [Company ABC]. [29] An examination of the company records shows that [Company ABC] was deregistered in 2015. No annual returns or other company documents were filed for the company with the ACCC from 2008 onwards. A company search does not show the company entering any form of formal external administration. [30] The evidence from [the Attorney] and [ZVA's wife], however, is clear: that the company's assets were sold by its financiers to satisfy debts, and that at that time [ZVA and his wife's] creditors were "circling".
10. We note that based on evidence provided by the Attorney in the hearing below (letter from solicitor for the Attorney addressed to solicitor for ZVA's wife dated 26 October 2020) the reference in [27]-[30] in the Reasons to a company being placed into liquidation should have been a reference to a separate company ("Company M") in relation to which ZVA and his wife were also directors. This material, which was not in dispute, indicated that ZVA and his wife provided personal guarantees to at least one creditor of Company M who was owed significant sums as an unsecured, secured and priority creditor. There was no evidence before the Tribunal below that Company ABC was placed into liquidation. Whilst drawing these matters to our attention in the appeal, the Attorney did not suggest that the mistaken reference to Company ABC as having a liquidator appointed was material to the outcome of the hearing.
11. The Tribunal then made the following findings at [89]: [89] (1) That the enduring power of attorney commenced operation when it was executed by [ZVA] on 19 June 2012. It appointed [the Attorney] and [Mr Z] jointly as enduring attorneys. (2) [Mr Z] resigned his appointment on 28 May 2014. Thereafter, [the Attorney] was the sole enduring attorney appointed under the instrument. (3) From at least early September 2013, when the [Property D] property was coming up for sale, [the Attorney] believed [ZVA] incapable of making personal and business decisions. Her evidence of her role in the company at that time - as verified by the solicitors' letter - shows that she was taking an active role in managing [ZVA]'s financial affairs and those of the company. (4) In October 2013, [the Attorney] had effective control of [ZVA] and his wife's joint account into which she paid $144,701.93 being monies belonging to [Company ABC], which she held for [ZVA and his wife]. The majority of these funds ($120,702.93) she paid to [ZVA's wife], on behalf of both [ZVA and his wife]. The balance was given to [ZVA and his wife] in cash and also used to purchase a car and coach for them. (5) In making those payments [the Attorney] was seeking to hide that money from [ZVA and his wife's] creditors. (6) [ZVA's wife] then paid the money she had received to [Mr Y] in an effort to hide that money from her and her husband's creditors. (7) [The Attorney], with the agreement of all [ZVA and his wife's] children, then obtained the $107,000 then remaining and used it to purchase a movable dwelling in [the Attorney's] own name. This was intended to provide a home for [ZVA and his wife]. (8) [The Attorney] has said that she will not transfer the movable dwelling into [ZVA and his wife's] name. (9) Until [ZVA] moved to the [ACF], [ZVA's wife] had unrestricted access to his age pension which was paid into their joint account she was free to use it for her own purposes and at times did so. (10) After [ZVA] moved into the [ACF] his pension was needed to pay for his accommodation fees. (11) [ZVA's wife] withdrew funds from their joint account intended to pay [ZVA's] accommodation fees, resulting in a debt accruing to [the aged care service provider] for accommodation fees over 2020. (12) In October 2020, [the Attorney] became aware of this and intervened by redirecting [ZVA's] pension to [the aged care service provider] and terminating [ZVA's] wife status as [ZVA's] Centrelink nominee.
12. The "moveable dwelling" referred to in the Reasons below is described as a one bedroom manufactured home with an attached annexe room.
13. Under s 36(1) of the Powers of Attorney Act 2003 (NSW), the Tribunal had discretion to review the enduring power of attorney: 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.
14. The Reasons for Decision explain that the Tribunal decided not to conduct a review of the making of the instrument and this aspect was not challenged on appeal.
15. The Tribunal did, however, decide to conduct a review of the operation and effect of the enduring power of attorney. After setting out its findings at [89] of the Reasons (at [17] above), it stated as follows: [90] Based on those findings we were satisfied that when acting as [ZVA's] enduring attorney [the Attorney] had: (1) exceeded her authority by actively seeking to hide [ZVA's] assets from his creditors; (2) wrongly purchased the movable dwelling in her own name, thereby appropriating to herself an asset that was partly his and partly that of his wife; (3) created an apparent conflict of interest between her interests as sole owner of the movable dwelling and those of [ZVA] whose funds were used to purchase it in part; and, (4) conferred benefits on [ZVA's wife] when she had no authority to do so.
16. A discussion of the matters relied upon by the Tribunal to support these findings is set out at [91]-[104] of the Reasons.
17. The Tribunal then considered whether or not, pursuant to s 36(2) of the Powers of Attorney Act, to make any orders under s 36(4) of that Act.
18. Section 36(2) of the Powers of Attorney Act provides that: 36 Interested persons may apply for review … (2) As a consequence of reviewing the …operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section.
19. The Tribunal could have decided not to make any orders under s 36, or under any other section. If it had done so, the Attorney would have continued in her role as attorney for ZVA under the enduring power of attorney.
20. Alternatively, the Tribunal could have decided to make one or more of the orders available to it under s 36(4) of the Powers of Attorney Act. These orders include: An order removing a person from office as attorney (s 36(4)(b)) An order appointing a substitute attorney to replace an attorney who has been removed from office by a review tribunal (s 36(4)(c)) Such other orders as the review tribunal thinks fit (s 36(4)(g))
21. The Tribunal could only have made an order under s 36(4), however, if it had it been satisfied that it would have been in ZVA's best interests to make the order/s or would have better reflected his wishes to do so.
22. The Tribunal did not take the courses of action described in [25] or [26].
23. Instead, the Tribunal decided under s 37(1) of the Powers of Attorney Act not to make an order under s 36 but to treat the application for the review as an application for a financial management order. In doing so, the Tribunal had to be satisfied that it was "appropriate in all of the circumstances to do so" (s 37(1)) and provides its reasons as follows: [108] We reached that conclusion as a result of [the Attorney's] refusal to contemplate transferring the dwelling into the joint ownership of her parents. If she had done so, she would have removed the principal impediment we saw to her continued control of [ZVA's] estate as his enduring attorney. If the situation is to remain as it is - which is what [the Attorney] proposed - then she will continue to hold an asset in her own name that is rightly part of [ZVA's] estate. We do not know whether he has left a will, or who the beneficiaries of his estate are. If the dwelling remains in [the Attorney 's] name, it will not form part of his estate when he dies and will not, necessarily, pass in accordance with his wishes. [109] If the dwelling is not transferred, [the Attorney] will also remain in a position of conflict vis-à-vis [ZVA's] interests. In Re R [2000] NSWSC 886 at [43] Young J (as he was then) cautioned that: … to allow a person with conflicts of interest to continue is something that still has to be watched carefully. If it has to be watched carefully then it seems to me that it is just a question of fact and degree as to whether in all the circumstances it is in the best interests of the incapable person that that situation continue. [110] Further, [the Attorney's] explanation of her refusal to transfer the dwelling into the joint names of [ZVA and his wife], did not address [ZVA's] interests at all. Rather, her explanation addressed the need that she perceives to stop [ZVA's wife] from being able to sell the asset and put it at risk. We did not think this a probable scenario if the dwelling is owned by [ZVA and his wife] jointly. Whoever is representing [ZVA's] interest, such as his enduring attorney or financial manager, will have to agree to the sale. [111] We were not persuaded that restraining [ZVA's wife's] behaviour, in the manner [the Attorney] seeks to do, by refusing to contemplate a transfer of the dwelling is necessarily one that [ZVA] would approve of or is in his best interest. [The Attorney 's] refusal is equally explicable as a means of seeking to exercise continuing control of her mother, as suggested by [ZVA's wife]. [112] We concluded, as a result of weighing these matters, that [the Attorney] should not continue to control [ZVA's] estate. [113] [ZVA's] wife was not seeking to be appointed. [114] If we were to proceed to remove [the Attorney] from her office as [ZVA's] enduring attorney, there was no one we thought capable of taking on the role available. This would mean that there would be no one left to manage the estate. This would be an entirely unsatisfactory result. [115] Consequently, we decided to treat the review of the enduring power of attorney as an application for financial management under which we could appoint a manager of [ZVA's] estate. We noted that the effect of such an order would be the suspension of [ZUZ's] appointment as attorney: see section 50(3) of the Powers of Attorney Act.
24. The Tribunal made a financial management order for ZVA for the reasons set out at [116]-[122]. In arriving at the decision to commit the management of ZVA's estate to the NSWTG and not to appoint the Attorney as his private financial manager, the Tribunal gave the following reasons: [126] In [ZVA]'s case we were not prepared to contemplate appointing [the Attorney] as his financial manager. It is her conduct in purchasing the movable dwelling in her own name rather than that of [ZVA and his wife], and then refusing to transfer it to them, that has led to the need to make a financial management order. Given those circumstances, and the long history of family conflict relating to [ZVA], we were of the view that we should appoint an independent financial manager: one who is apart from that conflict and able to make an independent of assessment of what is in [ZVA]'s financial best interest.
25. As a consequence of the making of the financial management order, the enduring power of attorney was suspended: Powers of Attorney Act, s 50(3).

Interlocutory matters

1. Directions were made by a differently constituted Appeal Panel on 19 May 2021 that the sound recording of the hearing below should be filed in the appeal proceedings, or a transcript of the sound recording, if it was to be relied upon in the appeal. Whilst the sound recording was not provided, the Attorney filed a transcript of the hearing conducted 19 March 2021 prepared by her solicitors ("Informal Transcript"). None of the other parties objected to the Informal Transcript being relied upon in the appeal. The Informal Transcript was not paginated and the paragraphs were not given identifying numbers. We have therefore taken the approach in these Reasons of referring to the page number that we allocated to the pages of the Informal Transcript when referring to parts of the transcript.
2. No order was made for the representation of ZVA and ZVA did not appear at the appeal hearing before us. We considered whether we should try and obtain ZVA's views about the appeal but for the following reasons decided not to do so: 1. The Reasons for Decision explaining the decision that is the subject of this appeal noted (at [15]) that ZVA did not take part in the hearing and referred to medical evidence that "indicated that, because of his severe dementia, [ZVA] was unable to participate in the hearing and would not understand what was occurring if he did. There was agreement about this amongst all participants". The Tribunal below concluded that it would proceed in his absence and that it was not "fair or in his best interest to require him to attend the hearing given his dementia and history". 2. At this appeal hearing none of the parties indicated a view different to that expressed by the Tribunal below concerning ZVA's inability to participate in the hearing due to the effects of dementia.
3. Having regard to these matters, we determined it would not be in ZVA's interests to take part in the appeal hearing, nor would he be able to engage with the proceedings.
4. The orders made on 19 May 2021 indicate that the Attorney's application for leave to be legally represented was refused and that oral reasons for this decision were provided. It was evident from the material before us that much, if not all, of the Attorney's written material filed in the appeal proceedings was prepared by her solicitors. The effect of the order refusing leave was that the Attorney was unrepresented at the appeal hearing. The steps we took to accommodate the Attorney's status as a self-represented litigant, albeit having had legal representatives prepare written material on her behalf, is addressed where appropriate below.

Fresh evidence

1. The Attorney sought to rely on the following additional material filed in the appeal: 1. Transfer of real estate signed by the Attorney and ZVA's wife as officers of Company ABC dated 25 September 2013 2. Company ABC ATF Company ABC Unit Trust, Financial statements for year ended 30 June 2008 3. Trust Deed for Company ABC Unit Trust dated 12 April 1996 4. Register of Unit Holders for the Company ABC Unit Trust dated 30 April 1996 - 1 July 2007 5. Contract of sale of moveable dwelling dated 10 June 2014 6. Order of Supreme Court of NSW dated 20 September 2013 in respect of Company M 7. Official Liquidators Report dated 14 November 2013 in respect of Company M 8. Official Liquidators Final Report dated 6 August 2014 in respect of Company M
2. The written submissions on appeal did not seek to address why leave should be granted to rely on the additional material and nor did they address the principles relating to the admission of fresh evidence. These principles were summarised in ZND v ZNE [2020] NSWCATAP 34: [62] Generally, fresh evidence must satisfy three conditions: it could not have been obtained with reasonable diligence in the original proceedings; there is a high degree of probability that if admitted there would have been a different result in those proceedings, and; the evidence must be credible: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, Clarke JA (Sheller JA agreeing); Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202; [2015] NSWCA 30 at [68] per Sackville AJA.
3. We did not admit the fresh evidence. In relation to the first condition alone, written material listed at (a)-(h) was in existence well before the proceedings in the Tribunal below and presumably in the possession of the Attorney and/or her legal representatives. There was nothing before us to suggest that the fresh evidence could not have been obtained with reasonable diligence in the original proceedings.
4. Nor were we persuaded on the material before us that if admitted, there is a high degree of probability that there would have been a different result for the following reasons.
5. In relation to document (a), the transfer document dated 25 September 2013, evidence had already been led in the proceedings below about this transfer and the document added nothing further to this issue.
6. Documents (b)-(d) were presumably led to support the Attorney's submission on appeal that she holds legal ownership of the moveable dwelling as trustee of a resulting trust in which ZVA and his wife are beneficiaries on a pro-rata basis according to the balances of their respective loan accounts at the time of acquisition. They also appear to be relevant to the Attorney's contention on appeal that the moveable dwelling is not held for the benefit of ZVA and his wife in equal shares. Rather, ZVA's wife holds an 18.6772% beneficial share of the property and ZVA holds the balance. This went to the Attorney's submission on appeal that had the Tribunal properly understood the basis upon which ZVA and his wife shared the beneficial ownership of the dwelling, the Tribunal would not have asked the Attorney whether she was prepared to contemplate the transfer of the legal title to reflect the "joint ownership" by ZVA and his wife.
7. These were not matters raised by the Attorney in the hearing below. Even if accepted as correct (noting these new submission on appeal were disputed by ZVA's wife) for the reasons set out below these issues are unlikely to have led altered the view taken by the Tribunal below that even though the Attorney considered that the moveable dwelling belonged to ZVA and his wife, by purchasing the dwelling in her name she had nevertheless acquired a benefit and created a conflict between her interests as those of ZVA for whom she was the appointed attorney.
8. Documents (f)-(h) were presumably led to provide additional background information leading up to the actions taken by the Attorney and to correct some factual errors the Attorney asserts were made by the Tribunal below. The substance of this fresh evidence, however, had already been provided in evidence that was before the Tribunal below (see, for example, letter dated 26 October 2020 from solicitors acting for the Attorney to solicitors acting for ZVA's wife). These documents therefore added nothing further that would have led to a different result.

The appeal

1. A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground: CAT Act, s 80(2)(b).
2. The Notice of Appeal set out 18 grounds of appeal. Many of the stated grounds overlapped with each other and most did not distinguish between an assertion of an error of law and a ground in relation to which leave to appeal was sought.
3. At the appeal hearing the Attorney was unable to engage with the 18 stated appeal grounds in any meaningful way. This is not intended as a criticism of the Attorney as the Notice of Appeal, which included the grounds of appeal, was prepared by her solicitors. Written submissions filed by the Attorney dated 9 June 2021, signed off by the Attorney but prepared with the assistance of her solicitor ("Attorney's written submissions") did not cross reference the 18 grounds of appeal or seek to address each one of them. Rather, it set out within the written submissions further grounds, which we could see were consistent with some of the original 18 grounds of appeal. This made the task of ascertaining the grounds of appeal relied upon, and distinguishing between asserted errors of law and asserted errors in fact finding, a challenging one.
4. Having regard to the Notice of Appeal, the Attorney's written submissions and the Attorney's oral submissions at the appeal hearing and assisting the Attorney as appropriate as an unrepresented litigant at the appeal hearing (Neill v Nott [1994] HCA 23; ZTO v Central Coast Local Health District [2021] NSWCATAP 160 at [17]-[23]; Cominos v Di Rico [2016] NSWCATAP 5 at [13]), and noting the types of matters that may raise a question of law set out in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, [13]-[18]), we understood the questions of law raised in this appeal to be: 1. Whether the Tribunal misapplied s 66G of the Conveyancing Act 1919 (NSW) by finding (at [110]) that whoever represented ZVA's interests would need to agree to the sale of the moveable dwelling 2. Whether the Tribunal members were biased against the Attorney

Replies to appeal

1. ZVA's wife took an active role in the appeal. Her position was that the Tribunal had not made any error by conducting a review of the enduring power of attorney and making a financial management order that appointed the NSWTG. Her view was that the appeal should be dismissed.
2. A representative of the NSWTG participated in the appeal by telephone but did not express a view about the grounds of appeal.

Whether the Tribunal misapplied the law concerning the rights of co-owners to force the sale of property

1. Making reference to s 66G of the Conveyancing Act the Attorney asserts that the Tribunal erred by stating (at [110] of the Reasons) that whoever represented ZVA's interest would need to agree to the sale of the moveable dwelling.
2. Section 66G(1) is in the following terms: 66G Statutory trusts for sale or partition of property held in co-ownership (1) Where any property (other than chattels) is held in co-ownership the court may, on the application of any one or more of the co-owners, appoint trustees of the property and vest the same in such trustees, subject to incumbrances affecting the entirety, but free from incumbrances affecting any undivided share, to be held by them on the statutory trust for sale or on the statutory trust for partition.
3. Paragraphs [110]-[111] of the Reasons are set out in full at [29] above.

Consideration

1. The Tribunal's comments at [110]-[111] are made in the context of considering whether or not to make any orders under s 36 of the Powers of Attorney Act.
2. The Tribunal set out at [108]-[109] (see [29] above) the main basis for its decision not to make any orders under s 36(4) of the Powers of Attorney Act.
3. The "further" reasons given for deciding not to make orders under s 36(4) of the Powers of Attorney Act are those set out in [110]. Those reasons may be summarised as follows: the explanation given by the Attorney for her refusal to contemplate the transfer the legal ownership of the dwelling into the names of ZVA and his wife did not address ZVA's interests; rather the explanation given by the Attorney was to stop ZVA's wife from being able to sell the asset; this was not a probable scenario, however in the Tribunal's view because, in the Tribunal's words "whoever is representing [ZVA's] interests, such as his enduring attorney or financial manager, will have to agree to the sale".
4. Section 66G of the Conveyancing Act, in summary, allows a co-owner to apply to the court to appoint a trustee to sell property (real or personal: s 7(1) of the Conveyancing Act) in circumstances where another co-owner objects to the sale. "Co-ownership" in that section means ownership "whether at law or in equity in possession by two or more persons as joint tenants or as tenants in common": Conveyancing Act, s 66F(1). "Co-owner" has a corresponding meaning. The authorities make clear that although the court has a discretion whether or not to make such an order, the grounds on which it will ordinarily refuse to make it are limited (Pascoe v Dyason [2011] NSWSC 1217, [5]-[8]; Ross v Ross [2010] NSWCA 301, [36]).
5. The assumption made by the Tribunal at [110] that "Whoever is representing [ZVA's] interest, such as his enduring attorney or financial manager, will have to agree to the sale" was not the only reason given for the Tribunal's decision not to make any orders under s 36(4) of the Powers of Attorney Act. The stated reason for arriving at that conclusion is set out in [108]-[109]. When [110] is read in context, it is evident that the primary reason given by the Tribunal was that the Attorney 's "refusal to contemplate transferring the dwelling into the joint ownership of her parents" meant that she would "continue to hold an asset in her own name that is rightly part of [ZVA's] estate ([108] of the Reasons) and would result in a situation where her interests would "remain in a position of conflict vis-à-vis [ZVA's] interests" ([109] of the Reasons).
6. Even if it is accepted that the Tribunal had assumed incorrectly that a refusal by ZVA's substitute decision-maker to agree to the sale of the moveable dwelling would be sufficient to prevent its sale, that assumption was not material to the decision to decline to make any orders under s 36(4) of the Powers of Attorney Act. Absent such error, there was no realistic possibility that the decision might have been different (KEPCO Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc [2021] NSWCA 216 per Basten and Payne JJA at [8]).
7. This ground of appeal is rejected.

Whether the Attorney was denied procedural fairness as a result of bias

1. The Attorney submitted that the members of the Tribunal conducted the hearing in a manner that was focussed on the wife's interests and the wife's ill health. She felt that the Tribunal's sympathy for ZVA's wife influenced the outcome of the hearing and was unfair to the Attorney. In her oral submissions at the appeal, the Attorney described the decision to make a financial management order as being the result of ZVA's wife "jump[ing] up and down"; that the decision was made "to pacify" ZVA's wife; it was "unjust" for the Tribunal to accuse the Attorney of doing the wrong thing when she had always acted in ZVA's best interests; the female Tribunal members especially were "falling for it" (which we understood to be a reference to the wife's evidence); the Tribunal members were "coming after me"; and she felt that her integrity was being challenged by the conduct of the hearing and the outcome.
2. We invited the Attorney to direct us to those parts of the Informal Transcript that she believed supported her assertion that the conduct of the Tribunal Members demonstrated bias but she was unable to do so.

Consideration

1. The Tribunal was obliged to afford the Attorney s procedural fairness: CAT Act, s 38(2). As part of that obligation, the Tribunal was required to determine the application before it without bias or the appearance of bias.
2. An overview of the principles relating to the obligation on the Tribunal to afford procedural fairness to a party under s 38(2) of the CAT Act and the obligation to determine proceedings without bias, or the appearance of bias, was provided in Wootten v Godfrey [2019] NSWCATAP 255, [24]-[30]. These principles, with citations omitted, may be summarised in brief as follows:

• The onus of establishing actual bias is a heavy one
• An allegation of actual bias must be distinctly made, clearly proved and supported by cogent evidence.
• A finding of actual bias should not be made lightly.
• In contrast to actual bias, the test of apprehended bias is objective. It involves possibilities (real and not remote) not probabilities.
• The question is not whether the decision-maker would not actually bring an impartial mind to the matter but whether a fair-minded lay observer might reasonably apprehend that the judge (or tribunal member) might not bring an impartial mind to the resolution of the question to be decided.

1. Having careful regard to the Informal Transcript, it was evident that the Tribunal members were aware of the wife's medical diagnosis (in relation to which there was material before the Tribunal confirming the nature of her health issues) and sought to accommodate this in the manner in which they conducted the hearing and spoke with the parties.
2. For example, at page 16 of the Informal Transcript the following comment was made by one of the Tribunal members: Member McCalman Thankyou for all that [ZVA's wife], and if you need to have a break at any time please let us know if you're feeling exhausted. [X], maybe you could step in too if you feel like [ZVA's wife] needs a break.
3. However, there was nothing in the Informal Transcript to support a conclusion that the members did not bring an impartial mind to the determination of the application. Nor was there anything contained within the Reasons for Decision to support this view. The Tribunal explicitly recognised the Attorney's motivations concerning ZVA's interests when it stated, in relation to the Attorney's purchase of the moveable dwelling in her own name: [97] …This was a deliberate decision made by [the Attorney] in consultation with other members of the family. Her explanation about securing a home for her parents for the future, which her mother could not sell, is understandable. We do not doubt that her intentions were honest, or that her evidence that she will apply the asset to meet the costs of supporting [ZVA and his wife] in the future, reflects her intent.
4. In relation to an assertion of apprehended bias, a review of the Informal transcript indicates that, at times, questioning of the Attorney could be read as focussed on the interests of ZVA's wife. For example, the following exchange is recorded at pages 31 and 32 of the Informal Transcript: Member McCalman: …Just clarify for me, so on the advice of the liquidator and the solicitor you bought this mobile home and put it in your name, that's what you said? Attorney : Yes. Member McCalman: And the reason for that, was to protect it from the - you mentioned about creditors circulating, is that right? Attorney: [Overtalk]02:07:10- Member McCalman: And in doing so [Attorney] do you say it's actually ZVA] and your mother's money that you're protecting? Attorney : I've never tried to hide that fact or claim it to be my home, I have never done that in my letters that I have always put down to the family members, everyone, we have all made that very clear. I know mum's trying to imply that, but that's not true and I've been very open about that. Member McCalman: Right. I think I understand what you're saying [Attorney]. So it's in your name only but you acknowledge that it's your mother's and [ZVA's] property in real terms? Attorney: That's right…And financial gains for myself, it has never been about that because if it was about that I would've taken the money and I would've hidden it and spent it and not bought mum a home and put her in it. This is why I'm saying- Member McCalman: I've just got some specific questions around this. So you put it in your name to protect it, you acknowledge that it's your mother's and your father's property. You also said that when it was registered it was for a seven year period, and so when's that seven year period up? Attorney Well it'd be getting close. Member McCalman: Right. So [Attorney] given your mother's- Attorney: And that's [inaudible] )02:10:08 because that protects the property. Member McCalman: Right, yeah I understand that- Presider: Say that again please. I didn't hear it, I'd like to hear it again. Could you say it again please [Attorney]. Attorney: Sure. The registration to protect it, it's paid for in increments of seven years. So that's been nearly seven years now and that will be renewed again, and that is just to prevent anyone making a claim on it. And that's why [inaudible] 02:10;46. Member McCalman: Right. So [Attorney], given your mother's now saying she wants her share of it or her money, are you prepared to acknowledge your mother's wishes and prepare to transfer money to your mother and look after [ZVA's] portion of it as Power of Attorney? Attorney: But mum's not Power of attorney, that's the thing, I am. Member McCalman: No. Attorney: And mum's making these claims … Member McCalman: Right I get that [Attorney], I understand that. So my question is at the end of the seven year period are you prepared to transfer your mother's portion of the money to her? (emphasis added)
5. These were not, however, the only questions asked about these issues and should be seen in the broader context of a three hour hearing. Later questioning by another Tribunal member also makes clear that questioning by the Tribunal about a proposed transfer of the legal title of the moveable dwelling into both names also occurred (at page 34 of the Informal Transcript): Member Love: You might've covered this earlier so apologies if we're going over the same thing but just so I'm really clear, what is stopping you from potentially transferring the mobile home back into [ZVA and his wife's] name at the current time? … Member Love: Sorry [Attorney], just going back to the question, I'm quite clear on your answer there and the reasoning is that you felt that you wouldn't transfer the property back into [ZVA and his wife's] name as you'd be concerned about the - for security reasons, that you're concerned about that there's potential for [ZVA's wife] to misspend the money or asset. Attorney: Yeah, that's right.
6. We understood the Attorney's main criticism in relation to the assertion of apprehended bias related to findings made by the Tribunal below and the outcome of the case. The Reasons show that the Tribunal set out a detailed description of the legislative provisions relevant to conducting a review of the operation and effect of an enduring power of attorney ([77]-[81] of the Reasons) and the fiduciary obligations owed by an attorney to a principal ([96] of the Reasons). The Reasons set out the evidence given by each of the parties about these issues ([19]-[76] of the Reasons) and the Tribunal's consideration of that evidence ([89] of the Reasons). The factual findings are then considered in relation to the legal principles identified by the Tribunal leading to the Tribunal's conclusion that the Attorney had, when viewed objectively, acted in breach of ss 9 and s12 of the Powers of Attorney Act (([91]-[94] and [97]-[100] respectively of the Reasons).
7. Whilst the Tribunal makes findings that are adverse to the Attorney, this does not support the Attorney's claim of apprehended bias. As noted in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668, [38] (von Doussa J): Reasons for decision reflect conclusions reached at the end of the decision-making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons.
8. We conclude that a careful examination of the Informal Transcript and Reasons for Decision does not support a finding that fair-minded lay observer might reasonably apprehend a lack of impartiality in relation to the manner in which the Tribunal below determined this matter.
9. On the basis of her oral submissions at the appeal hearing, we were left in no doubt as to the Attorney 's genuinely held view that the Tribunal's determination could only be explicable by the impact of bias in favour of her mother who was the original applicant.
10. However, we were not persuaded that the applicant has discharged the onus of establishing actual bias or apprehended bias.
11. This ground is rejected.

Other grounds of appeal

1. To appeal on grounds other than a question of law the Attorney must obtain the Tribunal's permission or leave.
2. The principles which govern the granting of leave to appeal pursuant to s 80(2)(b) of the CAT Act are set out in Collins v Urban [2014] NSWCATAP 17 at [84 (citations omitted)]: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed;…
3. The particular considerations relevant to the granting of leave in a protective jurisdiction are explained in a number of decisions: P v NSW Trustee and Guardian [2015] NSWSC 579, [190]-[198]; F v NSW Trustee and Guardian [2017] NSWSC 1319, [41]; SAB v SEM [2013] NSWSC 253, [8]-[10]; C v W [2015] NSWSC 1774, [44].
4. As we understood it, the real focus of the appeal, as set out in the Attorney 's written and oral submissions, was the contention that the Tribunal's conclusion that the Attorney had breached her fiduciary duty as attorney was based on factual errors of such significance that it would be unjust to allow the decision to stand.
5. We understood from the oral and written submissions that the asserted factual errors were as follows: 1. the Attorney had actively sought to hide ZVA's assets from his creditors 2. the Attorney had acquired a benefit and created a conflict between her interests and the interests of ZVA by purchasing the moveable dwelling in her own name 3. the Attorney 's refusal to transfer the moveable dwelling into the joint ownership of ZVA and his wife was unreasonable
6. The conclusion that the Attorney acted in breach of her fiduciary duty formed the basis of the Tribunal's decision to conduct a review of the operation and effect of the enduring power of attorney under s 36(1) of the Powers of Attorney Act.
7. Before considering each of these findings, we note that the principle that the relationship between a principal and agent is a fiduciary one is well established (Hospital Products Ltd v United States Surgical Corporation and Others [1984] HCA 64) and has been described as the need for an attorney (as a fiduciary) to display undivided loyalty to his or her principal. The fiduciary relationship requires that the agent not place himself or herself in a position of conflict, nor to obtain a profit or benefit from the position, except to the extent that alternative arrangements have been made by the parties to the relationship (GD Dal Pont, Powers of Attorney,2nd Ed, 2015, Lexis Nexis, Butterworths Australia at [8.31]-[8.32]. See also s 7 of the Powers of Attorney Act which provides that that Act does not affect the operation of any principle or rule of the common law or equity in relation to powers of attorney except to the extent that the Act provides otherwise). An attorney seeking to do otherwise may seek advice or direction from the Tribunal (pursuant to s 38 of the Powers of Attorney Act) or authorisation via an order of the Supreme Court (Smith v Smith [2017] NSWSC 408, [431]).
8. Should an attorney act in contravention of these prohibitions, for example by gifting the principal's property to himself or herself, or to others, then apart from any liability at common law, the donee becomes a constructive trustee of any misapplied property (GD Dal Pont, Law of Agency, 2nd ed, 2008, Lexis Nexis, Butterworths Australia at [10.10]).

Impugned finding (1): Attorney actively sought to hide ZVA's assets from his creditors

1. The Attorney contended that the Tribunal should not have found that she deliberately tried to hide funds from the creditors of ZVA and his wife as she had received advice from both the appointed liquidator for Company M and her solicitor to take these steps to dispose of the property in the manner in which she did. In the Attorney 's view, the finding was unfair, led to an outcome that was unjust and impugned her integrity.

Consideration

1. The Tribunal made relevant findings (at [89] of the Reasons) that are set out at [17] above.
2. Earlier in the Reasons, the Tribunal referred to evidence given in the proceedings about this issue:

• "The evidence from [the Attorney] and [ZVA's wife], however, is clear: that the company's assets were sold by its financiers to satisfy debts, and that at that time [ZVA and his wife's] creditors were 'circling'" (Reasons at [30])
• "[The Attorney] said that the advice she was receiving at the time was that she should get rid of the funds to protect the money from [ZVA and his wife's] circling creditors" (Reasons at [39])

1. The Tribunal concluded that: [94] In the circumstances of the current case, we are of the view that by actively seeking to hide [ZVA's] assets from his creditors, irrespective of the source of advice that she do so, [the Attorney] has acted in excess of the authority conferred on her in accordance with section 9(1) of the Powers of Attorney Act. In reaching that conclusion we understand that [the Attorney's] wish to protect [ZVA's] estate, but to do so by seeking to hide [ZVA's] assets from his creditors exceeded her authority.
2. Section 9(1) of the Powers of Attorney Act provides that a power of attorney confers on the attorney "the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do". In arriving at its conclusion on this point, the Tribunal's reasons refer to authority (at [92]-[93]) to the effect that a principal cannot instruct an attorney to deprive the principal's creditors of their respective entitlements (The Estate of Weiss (Dec'd) [1962] P 136, Scarman J).
3. The reference in [94] of the Reasons to the "source" of the Attorney's advice that she take the steps that she did appears to be a reference to the Attorney's evidence in the proceedings below that she received advice from the liquidator of Company M and her solicitor to take steps to prevent ZVA's creditors, and those of his wife, from making a claim against ZVA and his wife (Informal Transcript, pages 28, 30, 31, 32). The Attorney claimed that she did not have any written advice from these professionals. Nor was any evidence led as to whether those professionals gave advice to the Attorney specifically in relation to the impact that her actions may or may not have on her fiduciary obligations as attorney for ZVA.
4. In the course of the appeal proceedings, the Attorney told us that these steps were taken on the "instructions" of the liquidator and solicitor on the basis, in their view and hers, that it was in ZVA and his wife's best interests to do so.
5. In her submissions on appeal, the Attorney did not seek to challenge the legal authority referred to by the Tribunal in its reasons or engage with the limitation placed upon her authority as attorney set out in s 9(1) of the Powers of Attorney Act to do only that which the principal (ZVA) could lawfully authorise her to do. The Attorney's primary focus in relation to this issue was the difficult circumstances faced by ZVA and his wife in late 2013 and the advice she received from others advising her to dispose of the limited funds left over from the sale of the businesses operated by ZVA and his wife in order to provide them with some financial security.
6. We conclude that the finding made by the Tribunal that the Attorney actively sought to hide ZVA's assets from his creditors (Reasons 90 and [94]) was open on the evidence before it. The Attorney gave clear evidence that she deliberately placed funds remaining after the sale of property D out of reach of the creditors of ZVA and his wife. The Tribunal accepted this evidence as it was entitled to do. The Attorney's evidence that she acted on the advice of others provides an explanation as to why she took the steps that she did and does not detract from the Tribunal's finding.
7. The Attorney has not demonstrated an error in this factual finding carried out by the Tribunal that would warrant a grant of leave.

Impugned finding (2): The Attorney acquired a benefit and created a conflict between her interests and the interests of ZVA by purchasing the moveable dwelling in her own name

1. The Attorney contends that the findings that she has benefitted from the purchase of the moveable dwelling in her own name and that a conflict of interest was created were mistaken. This was because the Tribunal failed to understand the true basis of the ownership of the moveable dwelling which was that the Attorney held the dwelling as trustee of a resulting trust in which ZVA and his wife were beneficiaries on a pro-rata basis according to the balances of their respective loan accounts at the time of acquisition (based on financial statements for the ZVA Family Trust from 2008).
2. The Attorney filed fresh evidence to support her assertion as to the shares in which she says ZVA and his wife hold the dwelling as beneficiaries. For the reasons previously set out at [36]-[43] we declined to admit this fresh evidence.

Consideration

1. Although in the hearing below the Attorney had not raised the detailed arguments made on appeal as to the existence of a resulting trust in which ZVA and his wife are beneficiaries, she nevertheless gave evidence at the hearing that whilst she had purchased the dwelling in her own name, she did not regard it as her own but as belonging to ZVA and his wife.
2. The Tribunal below recognised that this was the Attorney's position as reflected at [35]-[36] of the Reasons: [35] [The Attorney] bought the movable dwelling in which [the wife] now lives on 20 June 2014. [ZVA's wife] pays rent on the site at the residential park but uses the dwelling as her own. [The Attorney's] evidence is that the dwelling was bought as a home for [ZVA's wife]. [36] [ZVA's wife] said that the dwelling was purchased by [the Attorney], in her own name, using [ZVA and his wife's] money. [The Attorney] agrees that the money used to purchase the dwelling was intended for [ZVA and his wife's] benefit and regarded as theirs. She says it was money that she was able to obtain from the liquidator of the company when it was being sold up. It formed part of the proceeds of sale of a property at [Property D] (at which [ZVA and his wife] lived) which was owned by [Company ABC] and sold on 23 September 2013.
3. The Reasons also made further reference to this issue quoting from a letter written by the Attorney's lawyer for a guardianship review hearing in relation to ZVA: [58] Recently, [the Attorney] negotiated and purchased a relocatable home for her mother from funds she was holding on their behalf and furnished it as [the wife] was homeless, living in a motel and [ZVA] had been placed in a hospital under guardianship.
4. The relevant findings made by the Tribunal are as follows: [97] The real problem arises from [the Attorney's] purchase of the movable dwelling in her own name using her stepfather's (and mother's) money. This was a deliberate decision made by [the Attorney] in consultation with other members of the family. Her explanation about securing a home for her parents for the future, which her mother could not sell, is understandable. We do not doubt that her intentions were honest, or that her evidence that she will apply the asset to meet the costs of supporting [ZVA and his wife] in the future, reflects her intent. The fact remains that she has purchased the dwelling in her own name in breach of her fiduciary duty to [ZVA]. [98] [The Attorney] has breached section 12 of the Powers of Attorney Act by conferring a benefit on herself. That benefit is the legal ownership of the dwelling… [99] In ZHC v ZHO [2018] NSWCATAP 190 the Appeal Panel said at [46-47]: 46 Effective 1 May 2015, the Attorney was subject to the fiduciary duties applicable to an attorney, one of which is a duty not to mix the property of the principal with the attorney's own property (See Lush J in Re Buckley [2013] WTLR 373 at [42]). 47 The Attorney admitted to the Tribunal below that she continued to intermingle her own funds with those of ZHP until June 2017, when she learnt that to do so was impermissible given her role as attorney. Irrespective of whether the Attorney 's actions lacked the character of dishonesty, this was sufficient in itself for the Tribunal to make the finding that it did. [100] Further, by purchasing the dwelling in her own name [the Attorney] has created a conflict between her interests and those of [ZVA]. Whilst she says that she will apply the asset for [ZVA and his wife's] benefit, she has put herself in a position where she can apply it for her own benefit.
5. Therefore, whilst the Tribunal below did not make explicit reference to a relationship of trustee and beneficiary pursuant to a constructive trust (or otherwise) it appeared to accept that the Attorney regarded the dwelling as belonging to ZVA and his wife. The Tribunal nevertheless found that the Attorney had obtained a benefit which was the legal ownership of the dwelling and had created a situation of conflict of interest. The question is whether these findings were open to the Tribunal to make. We conclude that they were.
6. As was noted in the Tribunal's reasons, in the enduring power of attorney that was the subject of these proceedings, ZVA had specifically deleted paragraph 6 of the document with the effect that the attorney was not authorised, in accordance with s 12 of the Powers of Attorney Act, "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".
7. 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)."
8. The evidence before the Tribunal below was that the contract of sale dated 10 June 2014 in relation to the moveable dwelling makes no reference to the Attorney purchasing the property as trustee for ZVA and his wife, or on ZVA's behalf in her capacity as attorney. The Tribunal found, and it was not disputed, that the Attorney signed the contract of sale in her own name and is, on the basis of that document, the legal owner of the dwelling. As the legal owner, the Attorney could deal with the dwelling in whatever manner she wished including in a manner that benefited her if she so chose. That she had not done so to date did not preclude the Tribunal from making the finding that the Attorney had acquired the benefit of legal ownership of the dwelling ([98]) of the Reasons) and had placed herself in a position where she could apply it for her own benefit even if she had not done so to date ([100] of the Reasons). That the finding of conflict of interest was open to the Tribunal is reinforced by the reality that, when objectively viewed, the only person with the legal authority who could act on ZVA's behalf to enforce his rights as the beneficiary of a purported constructive trust is his attorney who, in this case, is the same person against whom such action would need to be brought.
9. The Attorney has not demonstrated any error in the fact finding carried out by the Tribunal that would warrant a grant of leave.

Impugned finding (3): The Tribunal erred in finding that the Attorney 's refusal to transfer the moveable dwelling into the joint ownership of ZVA and his wife was unreasonable

1. The Tribunal below decided not to make an order under s 36(4) of the Powers of Attorney Act but instead treated the application for review of the enduring power of attorney as one for a financial management order pursuant to s 37 of the Powers of Attorney Act. Its reasons for doing so (at [108]-[115] of the Reasons) are extracted at [29] above.
2. Relevantly, at [108]-[109] of the Reasons, the Tribunal states that "we reached that conclusion as a result of [the Attorney's] refusal to contemplate transferring the dwelling into the joint ownership of her parents. If she had done so, she would have removed the principal impediment we saw to her continued control of [ZVA's] estate as his enduring attorney. If the situation is to remain as it is - which is what [the Attorney] proposed - then she will continue to hold an asset in her own name that is rightly part of [ZVA's] estate... If the dwelling is not transferred, [the Attorney] will also remain in a position of conflict vis-à-vis [ZVA's] interests".
3. As we understood the Attorney's submission on appeal, in the hearing below she indicated her unwillingness to contemplate transferring the legal title of the moveable dwelling into the joint names of ZVA and his wife because this would have provided ZVA's wife with a much greater share of the property than the Attorney believes she is entitled.
4. The Attorney filed fresh evidence to support her contention that the moveable dwelling is not held for the benefit of ZVA and his wife in equal shares. The Attorney submitted that had the Tribunal properly understood the basis upon which ZVA and his wife shared the beneficial ownership of the dwelling, the Tribunal would not have asked the Attorney whether she was prepared to contemplate the transfer of the legal title to reflect the "joint ownership" by ZVA and his wife. For the reasons set out at [36]-[43] above, we declined to admit this fresh evidence.

Consideration

1. There is no reference in the Informal Transcript that the Attorney or any other party asserted that ZVA and his wife held the moveable dwelling beneficially in unequal shares and that this was the reason why the Attorney did not agree to a proposal she transfer the legal title to them.
2. Simply put, this was not an argument raised for consideration in the hearing below.
3. Rather, the Tribunal found (at [110] of the Reasons) that the Attorney's explanation for not being willing to transfer ownership to ZVA and his wife was "to stop [ZVA's wife] from being able to sell the asset and put it at risk". This finding was open to the Tribunal given the following exchange at page 34 of the Informal Transcript: Member Love: You might've covered this earlier so apologies if we're going over the same thing but just so I'm really clear, what is stopping you from potentially transferring the mobile home back into [ZVA and his wife's] name at the current time? … Member Love: Sorry [Attorney ], just going back to the question, I'm quite clear on your answer there and the reasoning is that you felt that you wouldn't transfer the property back into [ZVA and his wife's] name as you'd be concerned about the - for security reasons, that you're concerned about that there's potential for[ZVA's wife] to misspend the money or asset. Attorney: Yeah, that's right.
4. It is also relevant to note that in relation to the references to "joint ownership" in the Reasons, it is unclear whether the Tribunal meant to imply equal ownership of the property, or whether it was intended to refer to a situation whereby ZVA and his wife were recognised as legal owners of the property, whatever their respective share in the property may be.
5. The Tribunal found (at [108]-[109]) that by refusing to contemplate transferring the legal ownership of the dwelling into the names of ZVA and his wife, then the Attorney would continue to hold an asset in her own name that was part of ZVA's estate and the conflict of interest created by her legal ownership of the dwelling would continue. For the reasons previously outlined, these findings were open to the Tribunal.
6. The Attorney has not demonstrated any error in the fact finding carried out by the Tribunal that would warrant a grant of leave.

Conclusion on application for leave to appeal

1. Leave to appeal on the basis that it would be unjust to allow the Tribunal's finding that the Attorney had breached her fiduciary duty is refused.

Orders 1. Leave to appeal is refused. 2. The appeal is dismissed.

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: 24 March 2022