Angius v Salier

[2019] NSWSC 1854

Supreme Court

New South Wales

Medium Neutral Citation:	Angius v Salier [2019] NSWSC 1854
Hearing dates:	13 December 2019
Decision date:	13 December 2019
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	1.   Order that the orders made by Parker J on 25 November 2019 appointing the NSW Trustee and Guardian as the plaintiff’s tutor for the conduct of these proceedings be revoked.
Catchwords:	CIVIL PROCEDURE — Protective jurisdiction — Administration of estates — NSW Trustee and Guardian – where no application for appointment of a financial manager – held that order that NSW Trustee and Guardian be appointed as the plaintiff’s tutor be revoked.
Legislation Cited:	NSW Trustee and Guardian Act 2009 (NSW), ss 10, 11, 16, Ch 3 and 4 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	A v A [2015] NSWSC 1778 Bobolas v Waverley Council [2012] NSWCA 126 Mao v AMP Superannuation Ltd [2015] NSWCA 252
Category:	Procedural and other rulings
Parties:	John Angius (Plaintiff) Gordon Albert Salier (First Defendant) Angius Hotel Investments Pty Ltd (Second Defendant) Togumi Pty Ltd (Third Defendant) J & L Angius Pty Ltd (Fourth Defendant) Tararba Pty Ltd (Fifth Defendant) Angius Investments Pty Ltd (Sixth Defendant) Robert Angius (Seventh Defendant)
Representation:	Counsel: J Brouwer (NBWT) G Falk (Plaintiff) C Birtles (First Defendant) A Carney (Second to Sixth Defendants) J Perez (Seventh Defendant)   Solicitors: Perez Varela Lawyers (Applicant) McDonnell Schroder Solicitors (Plaintiff) Teece Hodgson & Ward (Defendants)
File Number(s):	2016/00142494
Publication restriction:	Nil

Judgment

1. HER HONOUR: By notice of motion filed in court today, the NSW Trustee and Guardian (NSW Trustee) is seeking a revocation of orders that were made on 25 November 2019 by which the NSW Trustee was appointed as the plaintiff’s tutor for the conduct of these proceedings. The application for revocation of the appointment of the NSW Trustee as tutor is, in effect, on the basis that there is no utility in the NSW Trustee being named as the tutor in the proceedings because it has no power to act as tutor in the absence of a financial management order or other guardianship order.

2. In submissions that have been made in support of the application by the NSW Trustee, it is noted that it is entirely a creature of statute and has no power outside the powers conferred by the NSW Trustee and Guardian Act 2009 (NSW) (the Act). The functions of the NSW Trustee are specified in s 11 of the Act (headed ‘General trustee and other functions’):

(1)   The NSW Trustee may be appointed to and act in any of the following capacities—

(a) trustee,

(b) executor or administrator,

(c) collector of estates under an order to collect,

(d) agent or attorney,

(e) guardian or receiver of the estate of a minor,

(f) receiver of any other property.

(2)   The NSW Trustee may be appointed to and act in the capacity of a financial manager of the estate of a managed person.

(3)   The NSW Trustee may prepare wills and carry out professional services in connection with wills, probate and administration.

(3A)   The NSW Trustee may prepare instruments that create enduring guardianship appointments and carry out professional services in connection with the preparation of the instruments.

(3B)   The NSW Trustee may prepare instruments that create powers of attorney and carry out professional services in connection with powers of attorney.

(4)   The NSW Trustee, if appointed to act in a trust or protective capacity—

(a) has the same liabilities, and

(b) is entitled to the same rights and immunities, and

(c) is subject to the same control and orders of any court,

as a private person acting in the same capacity.

3. The NSW Trustee may engage in supplemental, incidental, or consequential acts as may be necessary in the exercise of its functions under the Act (see s 10 of the Act).

4. The NSW Trustee characterises broadly its functions under the Act as threefold: first, the provision of trustee services, largely specified in Ch 3 of the Act; second, the provision of financial management services, as noted in Ch 4 of the Act; and third, estate planning services, such as for the preparation of wills, powers of attorney, and appointments of enduring guardians. It is noted that there are general powers available to the NSW Trustee as specified in s 16 of the Act, whether the NSW Trustee is acting either in a trust capacity or in a protective capacity.

5. However, the position of the NSW Trustee is that there is no function in the Act that allows it to act solely in the capacity as tutor, and it submits that it is only in the context of a financial management order that the NSW Trustee can (or perhaps I would interpose to say “should”) be appointed as a tutor pursuant to the Uniform Civil Procedure Rules 2005 (NSW). It is accepted that the consent of a financial manager under the rules can be dispensed with and reference is made to what was said by Lindsay J in A v A [2015] NSWSC 1778 (at [22] to [26]) in that regard:

22.   In theory, the Court could direct the NSW Trustee, as a protected estate manager, to consent to an application as a tutor (NSW Trustee and Guardian Act, section 64; RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 at 284[93]-285[96]), or it could (mindful of the dictates of the protective jurisdiction exercised by the Court, and the NSW Trustee’s role in management of protected estates) dispense with any requirement under rules of court for the NSW Trustee’s consent (CPA sections 14 and 16; UCPR rule 7.14(4)[)].

23.   However, it would only be in a rare case that the NSW Trustee’s consent to appointment as a tutor would, or should, be dispensed with.

24.   Service as a protected estate manager, or as a tutor, can be onerous enough in itself. Appointment to each office involves acceptance, or imposition, of fiduciary obligations to a person in need of protection, and exposure to a personal liability for costs, as well as the burden of dealing with a person who, through incapacity, might be personally troublesome.

25.   Appointment as a tutor, in proceedings not commenced by the person appointed as a tutor, can be particularly onerous. It involves picking up proceedings not the subject of an earlier, rational assessment of prospects for success, and dealing with baggage arising from conduct of proceedings by others, not all of whom might have been competent to have carriage of the proceedings.

26.   Once appointed as a protected estate manager, and armed with powers it has as a manager, the NSW Trustee generally needs, and should be allowed, an opportunity to survey the field of litigious battle onto which, even without its consent, it has been dumped.

6. There are instances where there can be dispensation with the rules in relation to the appointment of a tutor in relevant cases (see Mao v AMP Superannuation Ltd [2015] NSWCA 252). Reference is also made to the decision of the Court of Appeal in Bobolas v Waverley Council [2012] NSWCA 126, where an individual who had consented to her appointment to act as tutor for her mother was appointed in a proceedings in the Court of Appeal in circumstances where there was already in existence a financial management order appointing the NSW Trustee as the manager of Mrs Bobolas’ estate and the trustee had declined to consent to act as tutor in the appeal.

7. The Court of Appeal has made clear that there cannot be bifurcation in the decision that a person is under a legal capacity (therefrom requiring under the rules an appointment of tutor), and the appointment of the tutor itself.

8. In the present circumstances there has been no application for appointment of a financial manager. The basis on which a tutor was appointed related to a difficulty in obtaining instructions by the plaintiff’s solicitor from the plaintiff but there was no finding of legal incapacity as such.

9. I consider that, given the legitimate concerns on the part of the NSW Trustee as to whether it has power to act as the tutor in the absence of a financial management order and in the circumstances of this case, the appointment of the NSW Trustee as tutor for the plaintiff for the conduct of these proceedings should be revoked, and I will so order.

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Decision last updated: 20 December 2019