NSW Trustee and Guardian Client Abuse - Marilyn's Story

Some years ago the finances of an elderly lady I shall just call Marilyn were placed in the hands of NSWTG on the application of her brother. I was prepared to manage her affairs for her, in accordance with her wishes, but her brother wanted them managed by NSWTG as he believed that under their management her funds and other assets would be protected by the State of NSW against losses caused by bad management or dishonest conduct. At the time, I was not aware that this was not the case.

My concerns about NSWTG were first raised after Marilyn was placed in a nursing home and NSWTG then went and sold her property off on her despite her strong objections to the sale. She had wanted her property rented out and then left to her son when she dies. NSWTG claimed that her property had to be sold in order to raise $100,000.00 outstanding on her nursing home bond. NSWTG insisted on going ahead with selling her property, despite my offer to provide the $100,000.00 needed as an interest-free loan. They refused to advise me who they had engaged as the real estate agent.

NSWTG tried to justify their going ahead with the sale by claiming they had already accepted the purchaser's offer by the time I offered to provide the $100,000.00 and that, as a deposit had already been put down, they were unable to go back on the agreement. My solicitor put my offer of the loan formally to NSWTG in a faxed letter sent on 11/2/14. However, NSWTG claimed the purchaser had made her offer on 10/2/14, which NSWTG accepted on 11/2/14, with the purchaser putting down the deposit on acceptance of her offer. The purchaser, for her part, claimed that she inspected Marilyn's property in early March 2014 and made her offer to purchase shortly after. She believed the deposit was put down on 11/3/14 or 12/3/14. It was only in July 2017, after having NSWTG's files subpoenaed, that I obtained documentary evidence establishing that the deposit was put down on 12/3/14, with the contracts exchanged the same day after the purchaser's conveyancer had signed a certificate on 10/3/14 waiving the purchaser's cooling off period.

Marilyn's property was sold for $370,000.00 and she received just under $359,000.00 from the proceeds of the sale after legal fees and the sales commission were deducted. She had paid $370,000.00 for it when NSWTG purchased it on her behalf 3 years earlier in March 2011, yet property prices in the area had increased by an average of nearly 25% between 2011 and 2014. The real estate agent was identified to me following the sale. She acknowledged that the sale price was too low but claimed NSWTG had told her that Marilyn was agreeable to the sale at the low price. Marilyn's property is now valued at $620,000.00 in 2017.

NSWTG was instructed to hold the entire contents of Marilyn's home with arrangements made for them to be stored at the home of her brother after she was told that her property would be sold regardless of my offer to provide all funds required to stop the sale. When her belongings never showed up at her brother's place, NSWTG turned around and told her everything had been stolen and that her son and I were responsible. I complained to the Ombudsman but after examining NSWTG's files he concluded there was no evidence of wrong conduct on NSWTG's part and accepted their explanation that a person or persons known to Marilyn and holding keys to her property had been responsible, as there were no signs of a break-in or forced entry. I was denied the opportunity to examine NSWTG's files for myself and NSWTG failed to provide me with a plausible explanation for a large charge made to Marilyn's trust account with them, which was simply shown as a property expense but which I believed had some connection to the theft.

It was not until July 2017, after having NSWTG's files subpoenaed, that I learned what had become of most of Marilyn's belongings. The real estate agent who sold Marilyn's property for NSWTG had ordered a massive council kerbside clearance of Marilyn's personal effects and furniture, which took place on 6/2/14. It included all her beloved personal family photographs, memorabilia and family records collected over a lifetime, and which NSWTG had previously refused allowing being sent to her at the nursing home after she had been accepted as a permanent resident there. The clearance was of such a magnitude that it used up all her 6 council kerbside clearances allowed in a year in one go and took up 12 cubic metres of space.

Not content with this dreadful abuse meted out to an elderly lady who was no longer able to defend what was rightfully hers, NSWTG then went and took $1,100.00 from Marilyn's trust account for the clearance which had already been paid for through her council rates. It was part of an overall charge of $2,950.00, described on her trust account as a property expense, with no other details provided. However, the Ombudsman saw the bogus invoice on which the payment was approved when inspecting NSWTG's files, so was aware of what had actually happened, yet he was still prepared to go along with the pretence that Marilyn's belongings had been stolen by her son and I. 

Further investigation on my part, revealed that NSWTG had paid Marilyn's funds for the council clearance and related charges into a bank account owned by the real estate agent. Marilyn's most expensive household appliances were not taken in the council clearance and it is still not known what became of them, apart from her clothes dryer which the real estate agent gave away to the new owner of her home.

When I first complained to the Ombudsman about NSWTG’s conduct, I was under the very mistaken impression that this matter would soon be fixed, as I felt the State of NSW would not tolerate this sort of treatment of its elderly, vulnerable citizens by the very government agency that was set up to look after them. Nothing could have been further from the truth. There was never the slightest attempt by anyone to acknowledge or take responsibility for what had happened. Instead, the Ombudsman accepted NSWTG’s explanation that Marilyn’s belongings had been taken by someone that was known to her, who was holding a key to her property to gain access.

This explanation was accepted even after the Ombudsman had examined NSWTG ‘s files and seen the invoice from the bogus business, without an ABN , charging Marilyn’s trust account to have her personal effects and furniture, which were supposedly stolen, taken away. The payment was authorized by a senior property manager at NSWTG. If the Ombudsman’s investigation had been more thorough, it would have also revealed that the real estate agent had ordered a major council kerbside clearance of Marilyn’s personal effects and furniture, using up all 6 of her annual clearance entitlements in the one clearance. The real estate agent then went and had herself paid by NSWTG for that council clearance through a bank account in the name of a caravan park business she runs in another part of the State. So much for the high standards supposedly set by the NSW Ombudsman’s Office in conducting its investigations.

I also referred the matter to the Office of the Attorney General. However, she claimed that NSWTG was an independent government agency and, as such, she could not intervene in its affairs, even in instances where wrong conduct may have occurred. It was up to the agency itself to deal with and sort out these issues, according to her.

My first dealings with NCAT occurred when I applied to replace NSWTG as Marilyn’s financial manager, following the abuse she had suffered at their hands . I had been prepared to look after her finances from the start , but her brother had wanted NSWTG appointed. My application was heard on 14/10/14 and I was appointed after NCAT dealt with her brother’s initial objections. From there it has always been about using my position to see that Marilyn was properly compensated for what happened and to make sure those responsible were held accountable for their actions. 

NCAT, for its part, advised me that it had no jurisdiction to deal with NSWTG’s wrong conduct and that it would have to go through the courts. This, of course, would be an extremely expensive exercise and would have to be paid for out of my own finances, as the funds of a protected person of the State are not allowed to be used against NSWTG. I attempted to have the matter raised through the media but found no one concerned enough to take up the issue. However, I regard the abuse and exploitation of our elderly, vulnerable citizens by the very organization that is set up to protect them, as being of such a serious nature, that I am putting up the money to take this matter to court. Hopefully, NSWTG will get the message that they are not above the law, as what was done to Marilyn was far from an isolated incident on their part.

Since setting up this website, a court ordered mediation session was held shortly before the matter was to have gone to trial. It was at this session that NSWTG made its first genuine attempt to address the serious issues involved. A significant offer was made which NSWTG stated was not to be taken as an admission of liability. However, NSWTG did acknowledge that it had only obtained a buyer for Marilyn’s home after I made my offer to cover the balance of her nursing home bond, when previously it had always stated it had already obtained a buyer by then and was contractually obligated to the sale.

Marilyn was reluctant to accept the offer, as rapidly rising property prices meant it left her well short of restoring her previous situation, while there would be no funds left with which to replace her household contents. NSWTG, for its part, maintained it was not accountable for the actions of the real estate agent, who it claimed to have engaged in good faith, and who had arranged for the disposal of all Marilyn’s possessions despite NSWTG instructing that they be kept. It was NSWTG’s view, therefore, that any claims for damages over Marilyn’s lost possessions needed to be made against the real estate agent, not NSWTG.

The decision was made to accept NSWTG’s settlement offer. The problem with not accepting the offer was that if the Court found NSWTG was not liable for the actions of the real estate agent and was only liable for the losses caused by the forced and unnecessary sale of Marilyn’s home, there was a real possibility that damages awarded might not exceed the amount already being offered at mediation. I was told If that were to occur, I would be liable for NSWTG’s ongoing legal costs by continuing with the case, even in winning. It was a risk I was advised not to take.

On 2/2/18 the Court made a consent judgement order that NSWTG pay Marilyn the sum of $115,000.00 in relation to the forced sale of her home while a further $20,000.00 was to be paid towards her legal costs. This settled all claims for damages against NSWTG but left the door open for proceedings to be taken against the real estate agent over the disposal of Marilyn’s possessions. The real estate agent had always denied any involvement in clearing Marilyn’s property and had not been a part of the proceedings against NSWTG. It was only when NSWTG’s files were subpoenaed for the court case against it, that the extent of the real estate agent’s involvement was discovered. Marilyn has been given an assurance that the real estate agent will be held to account for what she has done.