AHJ v NSW Trustee and Guardian - [2011] NSWADT 311

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: AHJ v NSW Trustee and Guardian [2011] NSWADT 311
Hearing dates: 23 November 2011
Decision date: 23 November 2011
Jurisdiction: General Division
Before: Magistrate N Hennessy, Deputy President
Decision:
The applicants' application for a stay of the decision of the NSW Trustee and Guardian is refused.

Catchwords: STAY - decision by NSW Trustee to give private manager a direction - whether prima facie case established - whether balance of convenience favours applicants - stay refused
Legislation Cited: Administrative Decisions Tribunal Act 1997
NSW Trustee and Guardian Act 2009
Category: Interlocutory applications
Parties: AHJ (First Applicant)
AHK (Second Applicant)
AHL (Third Applicant)
AHM (Fourth Applicant)
NSW Trustee and Guardian (Respondent)
AIG (Second Respondent)
AIH (Third Respondent)
Representation: Counsel
G W McGrath SC and S Adair (Applicants - AHJ, AHK, AHL and AHM)
WG Muddle SC (Second Respondent -AIG)
Mr O'Sullivan (Third Respondent - AIH)
JP Gould (Applicants)
Streeterlaw (Third Respondent) -

File Number(s): 113323
Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies

REasons for decision

HER HONOUR: I am going to give some oral reasons for the decision that I gave earlier to refuse the application for a stay of the decision of the New South Wales Trustee that is the subject of these proceedings. I am going to give some reasons for that decision now so hopefully that will not take too long but it will take some little time.

This is an application for a stay of a reviewable decision made by three siblings, AHJ, AHK, AHL, and their mother, AHM, on 17 November 2011. The subject matter of the stay application is a decision made by the New South Wales Trustee on 11 October 2011 in relation to Mrs X's estate. Mrs X is the grandmother of the siblings and the mother-in-law of AHM. I will read the additional direction and authority that the New South Wales Trustee made on that day:

"The Guardianship Tribunal made a financial management order on 9 June 2011 appointing [AIH], referred to as 'the Manager' throughout this document, manager of the Estate of [Mrs X]. The New South Wales Trustee & Guardian gives the following additional direction and authority to the Manager to enable him to manage the Estate. The New South Wales Trustee and Guardian is empowered to issues these directions and authorities under ss 64, 65 and 66 and the New South Wales Trustee & Guardian Act 2009.

16 MISCELLANEOUS

The Manager is authorised to exercise the managed person's voting rights in respect of her shareholdings in [X] Holdings Pty Limited, [X] Holdings Trust No 1, [X] Holdings Trust No 2, and/or [X] Holdings Trust No 3, including but not limited to voting at extraordinary general meetings, voting in favour of a resolution for the appointment of a provisional liquidator and the winding up of the companies."

The application for a stay has been made pursuant to s 60 of the Administrative Decisions Tribunal Act 1997 ( ADT…

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.

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Details

Case: [2011] NSWADT 311
Decision Date: 23 November 2011

CaseChat Overview and Summary

The case of AHJ v NSW Trustee and Guardian involved a dispute between the applicants, represented by AHJ, and the NSW Trustee and Guardian, the defendant. The primary issue was whether the applicants could obtain a stay of a decision made by the NSW Trustee and Guardian to provide a direction to a private manager. The applicants sought the stay on the grounds that they had established a prima facie case and that the balance of convenience favoured them.

The court examined the legal principles governing the grant of a stay of execution in this context. The applicants had to demonstrate that there was a serious question to be tried and that the balance of convenience weighed in their favour. The court considered the evidence and submissions presented by both parties before making its decision. Ultimately, the court found that the applicants had not established a prima facie case and that the balance of convenience did not favour them.

Consequently, the court refused the applicants' application for a stay of the decision of the NSW Trustee and Guardian. The court's reasoning was based on the lack of a serious question to be tried and the absence of a favourable balance of convenience for the applicants. The applicants' application was dismissed, and the decision of the NSW Trustee and Guardian to provide the direction to the private manager remained in effect.

Orders

Orders of the court

The applicants' application for a stay of the decision of the NSW Trustee and Guardian is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	AHJ v NSW Trustee and Guardian [2011] NSWADT 311
Hearing dates:	23 November 2011
Decision date:	23 November 2011
Jurisdiction:	General Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	The applicants' application for a stay of the decision of the NSW Trustee and Guardian is refused.
Catchwords:	STAY - decision by NSW Trustee to give private manager a direction - whether prima facie case established - whether balance of convenience favours applicants - stay refused
Legislation Cited:	Administrative Decisions Tribunal Act 1997 NSW Trustee and Guardian Act 2009
Category:	Interlocutory applications
Parties:	AHJ (First Applicant) AHK (Second Applicant) AHL (Third Applicant) AHM (Fourth Applicant) NSW Trustee and Guardian (Respondent) AIG (Second Respondent) AIH (Third Respondent)
Representation:	Counsel G W McGrath SC and S Adair (Applicants - AHJ, AHK, AHL and AHM) WG Muddle SC (Second Respondent -AIG) Mr O'Sullivan (Third Respondent - AIH) JP Gould (Applicants) Streeterlaw (Third Respondent) -
File Number(s):	113323
Publication restriction:	S126 of the Administrative Decisions Tribunal Act 1997 applies