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

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.
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…

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 Angius v Salier

Details

AGLC: Angius v Salier [2019] NSWSC 1854
Case: [2019] NSWSC 1854
Decision Date: 13 December 2019

CaseChat Overview and Summary

Angius v Salier is a case concerning the administration of estates and the jurisdiction of the NSW Trustee and Guardian. The plaintiff, Angius, sought the appointment of a tutor to manage her affairs. The court was required to determine whether the NSW Trustee and Guardian should be appointed as the plaintiff's tutor in the absence of an application for a financial manager. The court found that the application for the appointment of a tutor was not accompanied by an application for the appointment of a financial manager, and as such, the order appointing the NSW Trustee and Guardian as the plaintiff's tutor should be revoked.

The central legal issue was whether the court had protective jurisdiction to appoint a tutor in the absence of an application for the appointment of a financial manager. The court considered whether the application for the appointment of a tutor was valid and whether the NSW Trustee and Guardian was the appropriate party to be appointed as the plaintiff's tutor. The court held that the application for the appointment of a tutor was not accompanied by an application for the appointment of a financial manager, and as such, the order appointing the NSW Trustee and Guardian as the plaintiff's tutor should be revoked.

The court's reasoning was based on the requirement that an application for the appointment of a tutor must be accompanied by an application for the appointment of a financial manager. The court found that the plaintiff had not made an application for the appointment of a financial manager, and as such, the application for the appointment of a tutor was invalid. The court further found that the NSW Trustee and Guardian was not the appropriate party to be appointed as the plaintiff's tutor, as the plaintiff had not made an application for the appointment of a financial manager. The court therefore revoked the order appointing the NSW Trustee and Guardian as the plaintiff's tutor.

The final orders of the court were that the order appointing the NSW Trustee and Guardian as the plaintiff's tutor be revoked. The court found that the application for the appointment of a tutor was not accompanied by an application for the appointment of a financial manager, and as such, the order appointing the NSW Trustee and Guardian as the plaintiff's tutor was invalid. The court further found that the NSW Trustee and Guardian was not the appropriate party to be appointed as the plaintiff's tutor, as the plaintiff had not made an application for the appointment of a financial manager. The court therefore revoked the order appointing the NSW Trustee and Guardian as the plaintiff's tutor.

Orders