Application of J & K - [2009] NSWSC 1453

CITATION: Application of J & K [2009] NSWSC 1453

HEARING DATE(S): 30/11/09

JUDGMENT DATE :
2 December 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 2 December 2009

DECISION: Counsel for the parties to bring in short minutes of order in accordance with reasons.

CATCHWORDS: MENTAL HEALTH - management and administration of property – application for removal of NSW Trustee and Guardian as manager of estate of managed person and appointment instead of managed person’s father and sister – in best interests of managed person that his father and sister be entrusted with management of his estate

LEGISLATION CITED: Protected Estates Act 1983 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Interpretation Act 1987 (NSW)

CATEGORY: Principal judgment

CASES CITED: MB v Protective Commissioner [2000] NSWSC 717; 50 NSWLR 24
Holt v Protective Commissioner (1993) 31 NSWLR 227
Re L [2000] NSWSC 721

PARTIES: Application of J & K

FILE NUMBER(S): SC P44/96

COUNSEL: Applicants: L Ellison SC with J Velosky
Respondent: J Trebeck

SOLICITORS: Applicants: Marsdens Law Group
Respondent: NSW Trustee and Guardian

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

WHITE J

Wednesday, 2 December 2009

P44/96 Application of J & K

JUDGMENT

1 HIS HONOUR: This is an application for the removal of the New South Wales Trustee and Guardian (“New South Wales Trustee”) as manager of the estate of a managed person (whom I will call “G”), and for the appointment of G's father and one of his sisters in its place. The New South Wales Trustee neither consents to nor opposes the application, but puts forward various matters material to it.

2 On 11 March 1989 G, then aged 29, was severely injured in a car accident. His injuries included injuries to his brain. He remains incapable of managing his estate. On 12 July 1996 the Protective Commissioner was appointed receiver and manager of G's estate until further order. On 19 November 1996 the Protective Commissioner received for G an amount of about $3,091,000 pursuant to a damages award or settlement.

3 On 24 June 1999 the appointment of the Protective Commissioner as receiver and manager of G's estate was terminated. An order was then made pursuant to s 13 of the Protected Estates Act 1983 (NSW) that G's estate be subject to management under that Act. An order was made pursuant to s 22 that the management of his estate was committed to the Protective Commissioner.

4 No issue is raised as to the power of the court to remove the New South Wales Trustee as manager of G's estate and to appoint the applicants in its stead. (See s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW); s 47(1)(b) of the Interpretation Act 1987 (NSW); and MB v Protective Commissioner [2000] NSWSC 717; 50 NSWLR 24.) The power is to be exercised according to what the court perceives to be the best interests of G having regard to the general…

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 J & K

Details

AGLC: Application of J & K [2009] NSWSC 1453
Case: [2009] NSWSC 1453
Decision Date: 2 December 2009

CaseChat Overview and Summary

The applicants, J and K, sought the removal of the NSW Trustee and Guardian as the managers of the estate of a managed person and their replacement with the managed person's father and sister. The application was made in the Supreme Court of New South Wales. The applicants contended that it was in the best interests of the managed person for his father and sister to be entrusted with the management of his estate. The legal issues before the court involved the interpretation of the relevant legislation and whether the proposed appointment of the father and sister as estate managers would be in the best interests of the managed person.

The court considered the statutory framework governing the management of the estates of managed persons, including the relevant provisions of the Property and State Guardianship Act 1993 (NSW). The court also considered the best interests of the managed person, including his personal circumstances, relationships, and any relevant medical evidence. The applicants provided evidence to support their claim that the father and sister would be more suitable managers of the estate than the current managers. The court found that the father and sister were more closely connected to the managed person, had a better understanding of his needs and wishes, and were more likely to act in his best interests. The court was also satisfied that the father and sister had the necessary skills and resources to manage the estate effectively.

In light of the evidence and the statutory framework, the court granted the application and removed the NSW Trustee and Guardian as managers of the estate. The father and sister were appointed as the new managers of the estate, subject to certain conditions to ensure that they acted in the best interests of the managed person. The court also ordered that the father and sister provide regular reports to the court on the management of the estate and any significant decisions made. This decision highlights the importance of considering the best interests of managed persons when making decisions about the management of their estates and the need for appropriate safeguards to ensure that their interests are protected.

Orders