By Darryl Browne -
Key decisions
- CQH (No 2) [2023] NSWCATGD 23 (jurisdiction of NCAT)
- Case 982277 (concerning AustralianSuper Pty Ltd), Case 905049 (concerning UniSuper Limited), Case 910878 (concerning Retail Employees Superannuation Pty Ltd), Case 922589 (concerning AustralianSuper Pty Ltd), Case 920611 (concerning BT Funds Management Ltd), Lingard v Commonwealth Bank Officers Superannuation Corporation Pty Limited [2024] FCA 174, Nguyen v Australian Financial Complaints Authority [2024] FCAFC 77 and the Law Council of Australia reforms (superannuation)
- Banking Code of Practice (deceased’s estates)
Jurisdiction for appointment of guardian
CQH made an enduring guardianship appointment in favour of his now deceased wife, with his son as the alternative enduring guardian. In June 2023, CQH went to live with his son and family in Queensland. In September that year, one of CQH’s daughters lodged an application with the Civil and Administrative Tribunal of NSW (‘NCAT’) seeking a guardianship order for her father. Given CQH’s move to Queensland, NCAT had to satisfy itself that it had power to make a guardianship order for him (CQH (No 2) [2023] NSWCATGD 23).
It observed that, at common law, legislation was presumed not to have extraterritorial operation but that presumption could be displaced if it would defeat the purpose of the legislation. It noted that, whilst CQH lived his life up until June 2023 in NSW, he was no longer physically present in NSW, was no longer a resident of NSW and intended to reside indefinitely in Queensland. While he continued to own two properties in NSW, NCAT was not persuaded that fact displaced the presumption against extraterritoriality (at [96]). Nor would application of the presumption defeat the purpose of the legislation allowing the making of a guardianship order. It therefore dismissed the application.
