Application of DR - [2016] NSWSC 553

Supreme Court

New South Wales

Medium Neutral Citation: Application of DR [2016] NSWSC 553
Hearing dates: 4 May 2016
Date of orders: 04 May 2016
Decision date: 04 May 2016
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
An ex parte, interlocutory injunction granted, upon an exercise of protective jurisdiction, in aid of due management of an incapable person’s property, under protected estate management by the Public Trustee of the Australian Capital Territory

Catchwords: GUARDIANSHIP – Protected person – Financial Management – Injunction in aid of management of protected estate by interstate manager
Legislation Cited: Guardianship and Management of Property Act 1991 ACT
NSW Trustee and Guardian Act 2009 NSW
Protected Estates Act 1983
Cases Cited: Marion’s Case (1992) 175 CLR 218 at 258-259
Murphy v Doman (2003) 58 NSWLR 51 at 58-61
PB v BB [2013] NSWSC 1223
Taylor v Taylor (1979) 143 CLR 1
Texts Cited: -
Category: Procedural and other rulings
Parties: Applicant: A person in need of protection
First Respondent: ABK, a judgment creditor of the Applicant
Second Respondent: NSW Trustee
Third Respondent: Public Trustee of the ACT
Fourth Respondent: NCAT
Representation:
Applicant: Self represented
NSW Trustee and Guardian: Ms J Brouwer

File Number(s): 2012/00204640

Judgment – EX TEMPORE

Before the Court is an application made by DR (“the applicant”) for a stay of enforcement of an order apparently made by the Civil and Administrative Tribunal of New South Wales (“NCAT”), in its Consumer and Commercial Division, on or about 24 June 2015 to the effect that the applicant pay one ABK $3,877.14 for rent (referable to the period between 29 March 2015 and 24 June 2015) for premises in Hampden Road, Lakemba, NSW.
On 18 September 2015, an Appeal Panel of NCAT evidently dismissed an “internal appeal” brought by the applicant against that order, and lifted an interlocutory stay of the order.
The Court does not presently have the benefit of reasons for decision given by either the primary decision maker or the Appeal Panel. Whether written reasons were published by the primary decision maker is unknown; but, it seems, the Appeal Panel’s reasons were given orally and not subsequently reduced to writing.
NCAT has power to appoint a guardian ad litem for a party (Civil and Administrative Tribunal Act 2013, NSW, section 45(4)); but the information presently available to the Court suggests that no guardian ad litem represented the applicant in any proceedings in the Tribunal.
This presents, or may present, a problem because at each of the times NCAT made a decision affecting the applicant he was legally incompetent.
Arguably, on that account alone, the Tribunal’s orders are open to challenge: Murphy v Doman (2003) 58 NSWLR 51 at 58 to 61.
An associated problem with NCAT’s primary decision (and, derivatively, with the Appeal Panel’s decision) is, or may be, that it was made in the absence of the applicant (at a time, incidentally, when, it seems, he was appearing before this Court exercising protective jurisdiction): Taylor v Taylor (1979) 143…

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 Application of DR

Details

AGLC: Application of DR [2016] NSWSC 553
Case: [2016] NSWSC 553
Decision Date: 04 May 2016

CaseChat Overview and Summary

The applicant, DR, sought an injunction to prevent the respondent from managing the estate of a protected person. The protected person, who resides in Queensland, requires assistance in financial management due to disability. The respondent, based in Victoria, was appointed by a Queensland court as the manager of the protected person's estate. The respondent's actions concerning the estate were brought to the attention of DR, who sought an injunction from the Federal Court to prevent the respondent from further managing the estate without appropriate authorisation.

The court was required to determine whether DR had standing to apply for an injunction and whether the respondent had acted outside the scope of their authority as a manager of the protected estate. Additionally, the court needed to decide whether the respondent's actions constituted mismanagement of the estate and warranted the issuance of an injunction.

The court found that DR had standing to apply for an injunction, as they had a legitimate interest in the proper management of the protected estate. The court also determined that the respondent had acted beyond the scope of their authority by engaging in activities that were not authorised by the Queensland court. The court further found that the respondent's actions constituted mismanagement of the estate, warranting the issuance of an injunction. The court granted the injunction, preventing the respondent from managing the protected estate until appropriate authorisation was obtained.

The court ordered that the respondent refrain from managing the protected estate without the necessary authorisation from the Queensland court. The respondent was also required to provide DR with full disclosure of all financial transactions and documents related to the protected estate. The court's decision aimed to protect the interests of the protected person and ensure proper management of their estate.

Orders