KE v Protective Commissioner [2004] NSWADT 59 (11 March 2004)

Last Updated: 16 April 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: KE -v- Protective Commissioner [2004] NSWADT 59


PARTIES: APPLICANT
KE
RESPONDENT
Protective Commissioner



FILE NUMBERS: 043013

HEARING DATES: 09/03/2004 & 11/03/2004

SUBMISSIONS CLOSED: 11/03/2004



DECISION DATE: 11/03/2004

BEFORE: O'Connor K - DCJ (President)





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Protected Estates Act 1983

CASES CITED:

APPLICATION: Protected Estates Act - Protective Commissioner - powers as to property
Protective Commissioner - powers as to property

MATTER FOR DECISION: Preliminary matter


APPLICANT REPRESENTATIVE: APPLICANT
A Campbell, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT
T Tunbridge, solicitor

ORDERS: 1. Refuse application in respect of 1 Miller Street, Petersham
2. Continue to stay the Protective Commissioner’s decision as it relates to 6 Porter Avenue, Marrickville
3. Other Directions as per para 12.


Reasons for Decision:

REASONS FOR DECISION

DELIVERED EX TEMPORE

1 The application for review was lodged on 15 January 2004 with the Tribunal. It relates to the decision of the Protective Commissioner to sell two properties owned by the applicant, whose affairs are subject to a financial management order made by the Guardianship Tribunal appointing the Protective Commissioner as financial manager. The jurisdiction of the Tribunal arises under s 28A of the Protected Estates Act 1983. There is a detailed attachment to the application for review which is essentially the internal review decision made by Mr Lester, Assistant Director, Country, Estate Management Branch.

2 The applicant applied for orders staying implementation of the Protective Commissioner’s decision pending determination of the principal application. The Tribunal’s stay power is found in s 60 of the Administrative Decisions Tribunal Act 1997. The stay application initially came on for hearing on 3 February 2004. On that date, I made an order that the Protective Commissioner’s decision to sell, as it relates to 6 Porter Avenue, Marrickville, be stayed until further order. The second order was that the application to stay the Protective Commissioner’s decision to sell in respect of 1 Miller Street, Petersham, be refused, subject however to the condition that the Protective Commissioner not enter into a contract to sell until further order. Then there was a direction that the matter be re-listed. Today’s proceedings form part of the sequence of occasions on which the matter has been re-listed. The continuation of the stay order is the matter before the Tribunal today.

3 Now, the issue that has arisen, as is well known to those in the room, is that it arguably may be preferable, if any property is to be sold, for 6 Porter Avenue to be sold rather than 1 Miller Street. The fundamental position of the applicant at the time of lodging the application was that there be no property sold. She continued to express that view during the period when she was not affected by a mental health commitment. We are told by her solicitor that she was committed as an involuntary patient by a Magistrate on 3 March 2004. She has continued to express that view, though I guess there may be some greater doubt now as compared to previously as to whether that is a view that should be taken into account.

4 However, I think the most appropriate thing for me to do in the circumstances as I find them today - with no expert assistance on what to do with that information and only having it presented to me on a hearsay basis - is, nevertheless, to give it weight and take it into account. It seems to me that that is the approach that one should take from a protective point of view.

5 There was, I think, a useful contribution made by Mr Kristallis’s report (obtained by the applicant in reply to the Protective Commissioner’s financial assessment) insofar as he presented an argument as to why it was more prudent financially to proceed with the 6 Porter Avenue sale as against the 1 Miller Street sale. There seems to be some persuasiveness, to me at least, in the view that there is value in keeping assets which are located next door to each other, as in the case of 1 and 3 Miller Street. There is always potential to utilise those two properties as part of a single development, subject to council approvals. That may mean that a developer is prepared to pay a higher price than the two dwellings would attract as separate sales.

6 It is apparent - and that has been acknowledged to some degree in the proceedings by KE’s representatives - that some funds of some significant amount need to be generated in order to attend to her interests in future. There is some debate in the material as to whether the Protective Commissioner’s estimates of her day to day financial needs are accurate. As best I could understand Mr Kristallis’s report, he was suggesting that there were aspects of those day to day needs that could be the subject of more conservative administration. But even taking account of those differences in view, her day to day financial needs are relatively significant. They are connected in part with the costs that go with having so many properties (seven) and also with some aspects of her personal lifestyle, which it is thought, appropriately, should be maintained.

7 Were it a situation where there was only a choice to be made between, let us say, 1 Miller Street and 6 Porter Avenue, I think, as the material stands at the moment, I would be inclined to favour the sale of 6 Porter Avenue. But this is a situation where KE has substantial assets. She has several properties and it may be that one should not be as clinical as one might otherwise feel is appropriate in drawing a line as to whether it is more desirable to retain 1 Miller Street because of this joint property aspect, or whether 6 Porter Avenue should go.

8 The one thing that seems to emerge looking at Mr Lester’s report that is attached to the application for review (the report headed Internal Review of Decision), is that there does seem to have been a consistency of attitude on the part of KE over the question of what her own rank order would be in relation to the sale of the properties. If you look at page 5 in particular of that document, you will see there she is expressing a particular wish to retain 3 Miller Street. At paragraph 4, she is reported as saying if any property is to be sold, it ought to be 1 Miller Street and maybe 6 Porter Avenue. So yesterday’s communication to the solicitor seems to be basically consistent with what she was saying earlier on. It would seem that she is more at ease with the sale of 1 Miller Street than the other properties at this stage.

9 I accept, in saying that, that her fundamental position has been that none should be sold. I am satisfied that that is unrealistic; and that some substantial funds need to be generated and need to be generated reasonably quickly. It may be that an additional factor will intrude itself, if it becomes necessary (as has been suggested today by Mr Tunbridge for the Protective Commissioner) to meet some substantial bond to place KE in some form of care.

10 For those various reasons I think that the prudent course in all the circumstances is to continue to stay the Protective Commissioner’s decision as it relates to 6 Porter Avenue, but to lift the restriction on the sale of 1 Miller Street, Petersham, so that the result would be that Term One of the Order which I made on 3 February 2004 would remain operative, but Term Two of the Order would be revised simply to state that the application to stay the decision to sell in respect of 1 Miller Street, Petersham, is refused full stop, and the condition I imposed on that occasion is removed.

11 Then what I should do with the balance of the application is simply to list the matter for a telephone conference in, say, three or four weeks’ time as one way of trying to minimise any further costs in the hope that maybe some view can be reached in the meantime as to whether the application is to be pressed or not. In respect of 6 Porter Avenue, it may be that the Protective Commissioner is prepared himself to reconsider that decision in the meantime, in which case if he were to decide not to proceed to sell 6 Porter Avenue, well, then the principal application collapses. There is nothing more for the principal application to deal with.

12 The following orders were then made:

1. Continue Term 1 of the Order made on 3 February 2004 (i.e. Protective Commissioner’s decision to sell as it relates to 6 Porter Avenue, Marrickville is stayed until further order).

2. The proviso to Term 2 of the Order made on 3 February 2004 is removed and that Term now reads:

The application to stay the decision to sell in respect of 1 Miller Street, Petersham is refused.

3. Adjourn the costs application by the applicant to the relist date.

4. Relist 8 April 2004 at 9.30; both parties by telephone, if they wish.