Australia, Aug. 21 -- New South Wales Land and Environment Court issued text of the following judgement on July 21:

1. TGTC (the Applicant) has applied to the Tribunal for a review of the decision made by the NSW Trustee and Guardian (the First Respondent) to sell her mother's house. In April 2021, the Guardianship division of the Tribunal made orders that the Applicant's mother (the Protected Person) be committed to the financial management of the First Respondent. The decision to sell the house is supported by GWH (the Second Respondent) and GXF (the Third Respondent) who are the Applicant's sisters.

2. The Applicant submits that the First Respondent has not established that her mother's estate would benefit if the property was sold, and contends that her mother has resumed residing in the property, since December 2024, and wishes to remain in the property.

3. This is an application for administrative review of a decision of the First Respondent pursuant to s 70 of the NSW Trustee and Guardian Act 2009 (NSW) (the Act).

Legislative Framework

4. The Tribunal has jurisdiction to review a decision pursuant to s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) and sections 6, 7 and 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).

5. Section 62 of the Act provides the basis of the Tribunal's jurisdiction to hear this matter. The decision to sell the house is made in connection with the exercise of the First Respondent's functions, and the Applicant has standing to bring the application.

6. As set out above, on 22 April 2021, the Guardianship Division of this Tribunal found that the Protected Person, who is currently 95 years old, was incapable of managing her affairs, due to a diagnosis of moderate dementia complicated by psychosis. A financial management order was made pursuant to the provisions of Part 3A of the Guardianship Act 1987 (NSW) and the Protected Person's estate was committed to management by the First Respondent.

7. Chapter 4 of the Act is concerned with 'management functions relating to persons incapable of managing their affairs.' Under s 56 and 57 of the Act, the First Respondent was empowered to exercise all the functions necessary and incidental to management and care, and the functions which would have been exercised by the Protected Person if she were under no incapacity.

8. Section 16(1) of the Act empowers the First Respondent, amongst other powers, to grant leases, receive rental income and sell real property. On this basis, I am satisfied that it is within the power of the First Respondent to sell the Property.

9. In accordance with s 62 of the Act, I am satisfied that the Applicant is an 'affected person' and therefore entitled to apply to this Tribunal to review the decision of the First Respondent to sell her mother's property.

10. In reviewing the decision, the Tribunal 'stands in the shoes' of the First Respondent and is required to make the 'correct and preferable decision' having regard to any relevant factual material and any applicable written or unwritten law. The Tribunal may set aside, vary or affirm a decision before it as per s 63 of the ADR Act.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1981bbe3f1216fa783d88d92)

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