By Darryl Browne -
Key decisions
- GJQ [2023] NSWCATGD 1 and MXC [2023] NSWCATGD 8 (NCAT Summons)
- ZZD v ZZE; ZZX v ZZY [2022] NSWCATAP 353 (Financial management order)
- Thynne v Sheringham [2023] NSWCA 181 (Inheritance contract)
- Rea v Rea; Re Estate of Anna Rea [2023] EWHC 1901 (Ch) (Testamentary undue influence)
- Case 835234 (concerning Retail Employees Superannuation Pty Ltd) (Superannuation death benefit)
- KU (No. 2) (Application to review Enduring Power of Attorney) [2023] TASCAT 153 (Elder abuse)
- Agostina Teresa Raphael as executor of the will of Tonino Luciano Randazzo v Randazzo [2023] WASC 312 (Severance of Joint Tenancy)
NCAT Summons
In GJQ [2023] NSWCATGD 1, the Tribunal set out its principles in relation to summonses. According to those principles, the materials requested under a summons must have ‘sufficient apparent connection’ to the issues in the proceedings. The decision in MXC [2023] NSWCATGD 8 demonstrates how the Tribunal balances considerations of the subject person’s welfare, interests and privacy, against the relevance of the requested documents to the issues in the proceedings.
Successful appeal against refusal of financial management order
In ZZD v ZZE; ZZX v ZZY [2022] NSWCATAP 353, the nephew applied to be appointed as his aunt’s financial manager. At first instance, NCAT committed the management of the aunt’s estate to NSW Trustee & Guardian. The Tribunal’s decision not to appoint the nephew as the aunt’s financial manager was based on several findings including that if the aunt were to become a permanent aged care resident, the nephew would no longer be paid the carer’s allowance. Further, if the aunt’s home was sold to fund her care, it could potentially devalue his expected future inheritance from the aunt, and he would be required to live elsewhere. The Tribunal found that if the aunt’s guardian decided that she should enter an aged care facility, there was a real risk that the nephew as her enduring attorney ‘might impede implementation of that decision through his control of her property and financial affairs’ (at [46]-[49]).
The nephew appealed. The Appeal Panel was not satisfied the Tribunal’s conclusions were supported by the available evidence, as the Tribunal failed to balance the nephew’s evidence against the ‘theoretical conflict’ (at [51]). The Tribunal did not consider the nephew’s evidence that he would approach the prospect of the sale of his aunt’s property and the loss of his carer’s allowance with equanimity. The nephew had provided evidence that he was only staying at the aunt’s property to look after it for her. In addition, the Tribunal failed to consider the nephew’s other financial resources or sources of income, so the Tribunal only considered one side of the nephew’s financial ledger, rather than its totality (at [51]).
As the Tribunal’s conclusions were affected by legal error, the Appeal Panel allowed the appeal in relation to the financial management order and remitted the matter to the Tribunal for reconsideration (at [52]).
