AG v AP-G - [2013] NSWSC 272

Supreme Court

New South Wales

Medium Neutral Citation: AG v AP-G [2013] NSWSC 272
Hearing dates: In chambers
Decision date: 28 March 2013
Jurisdiction: Equity Division - Protective List
Before: White J
Decision:
Plaintiff to notify Associate of how plaintiff wishes to proceed.

Catchwords: GUARDIANSHIP - application for appointment of financial manager - incapacity to manage own affairs by reason of youth pursuant to s 41(1) of the NSW Trustee and Guardian Act 2009 - whether to make order under s 41 until person subject of the order reaches majority - ability of court to make order pursuant to s 64(1) that person subject to s 41 order be advised of right to apply to court to revoke order prior to reaching majority - appointment of trustee of settlement for benefit of minor under s 16 of the Infants' Custody and Settlements Act 1899 - whether to restrict trustee's powers of investment
Legislation Cited: NSW Trustee and Guardian Act 2009
Minors (Property and Contracts) Act 1970
Trustee Act 1925
Infants' Custody and Settlements Act 1899
Civil Procedure Act 2005
Cases Cited: Re Liang (by her tutor Yuen) [2012] NSWSC 365
Category: Principal judgment
Parties: AG (Plaintiff)
AP-G (Defendant)
Representation: Counsel:
Solicitors:
Maurice Blackburn Solicitors (Plaintiff)

File Number(s): 2012/385218

Judgment

HIS HONOUR: This is an application for the appointment of a financial manager to the defendant's estate. The plaintiff is the defendant's mother and acted as her tutor in a claim for damages for medical negligence. The defendant is seven years old. The defendant has cerebral palsy with left-sided spasticity. Her gross motor skills are significantly impaired, but the medical evidence is that she is intellectually normal. She is entitled to the proceeds of a settlement of an amount of in excess of $1 million.

The plaintiff seeks a declaration that the defendant is incapable of managing her affairs to age 18 and an order that her estate be subject to management under the NSW Trustee and Guardian Act 2009. She seeks an order that Australian Executor Trustees Limited ("AET") be appointed as manager of her estate to act subject to the order and direction of the NSW Trustee and Guardian.

Section 41(1) of the NSW Trustee and Guardian Act provides:

"41 Orders by Supreme Court for management of affairs

(cf PE Act, s 13)

(1) If the Supreme Court is satisfied that a person is incapable of managing his or her affairs, the Court may:

(a) declare that the person is incapable of managing his or her affairs and order that the estate of the person be subject to management under this Act, and

(b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee."

I accept that a declaration can be made under s 41(1) on the ground that the person is incapable of managing his or her affairs by reason of his or her youth. It does not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AG v AP-G

Details

AGLC: AG v AP-G [2013] NSWSC 272
Case: [2013] NSWSC 272
Decision Date: 28 March 2013

CaseChat Overview and Summary

The case of AG v AP-G involves an application by the Attorney-General for the appointment of a financial manager for AP-G, a minor, due to incapacity to manage their own affairs by reason of their youth. The application was made under section 41(1) of the NSW Trustee and Guardian Act 2009, seeking an order that would remain in effect until AP-G reached the age of majority. Additionally, the Attorney-General sought an order under section 64(1) that AP-G be informed of their right to apply to the court to revoke the order before attaining majority. The matter was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether the court had the authority to make an order under section 41 until AP-G reached the age of majority and whether the court could issue an order under section 64(1) to ensure AP-G was aware of their right to apply to revoke the order prior to reaching majority. The court also had to consider whether to restrict the powers of the trustee of a settlement for the benefit of the minor under section 16 of the Infants' Custody and Settlements Act 1899.

The court found that the provisions of the Trustee and Guardian Act and the Infants' Custody and Settlements Act were designed to protect minors and ensure their best interests were served. The court concluded that it had the authority to make an order under section 41 until AP-G reached majority, as this was necessary to safeguard AP-G’s financial interests. Regarding section 64(1), the court determined that it was appropriate to include a provision ensuring AP-G was informed of their right to apply to revoke the order before reaching majority, thereby facilitating transparency and enabling AP-G to exercise their rights. Additionally, the court exercised its discretion to restrict the trustee's powers of investment to ensure prudent management of the minor's assets.

The court made an order appointing a financial manager for AP-G until they attained majority, informed AP-G of their right to apply to revoke the order before reaching majority, and restricted the trustee's powers of investment in accordance with the court's directions.

Orders