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Application of SJ

Application of SJ

Case [2011] NSWSC 372 3 May 2011

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Application of SJ [2011] NSWSC 372
Hearing dates: 11 April 2011, 12 April 2011
Decision date: 03 May 2011
Jurisdiction: Equity Division - Protective List
Before: Hallen AsJ
Decision:
(a) Order that leave is refused for the appeal.
(b) Order that the decision of the Guardianship Tribunal that the first Plaintiff be placed under guardianship and that her guardian be the Public Guardian is affirmed.
(c) Order that the decision of the Guardianship Tribunal that the estate of the first Plaintiff be subject to management and that management of the estate be committed to the NSW Trustee is also affirmed.
(d) Order that the Summons be dismissed.
(e) Order that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules.
(f) Defer making costs order until further argument on costs, in the event that the parties are unable to agree.

Catchwords: The Plaintiffs seek leave to appeal, and if leave is granted, to appeal the decision and orders made by Guardianship Tribunal in an application for a financial management and guardianship application in respect of the first Plaintiff made by the fourth Defendant - Tribunal made orders pursuant to which the first Defendant was appointed financial manager of first Plaintiff's estate, and the third Defendant was appointed guardian of the first Plaintiff - Further amended Summons filed seeking leave to appeal the decision of the Tribunal, an order that the Tribunal's orders be set aside, or, that the financial management of the first Plaintiff's estate, and her guardianship be granted to the second Plaintiff, and an order that the costs of the second Plaintiff of the first and third Defendants sought to be paid out of the estate of the first Plaintiff .
Legislation Cited: Guardianship Act 1987
Protected Estates Act 1983
Cases Cited: ACJ [2007] NSWGT 15
Charlton v Baber [2003] NSWSC 745
DL v Public Guardian and Ors [2008] NSWADTAP 6
G v B (Powell J, 27 May 1992, unreported)
GHI (a protected person); Re [2005] NSWSC 581
H v H (Supreme Court, 20 March 2000, unreported)
Holt v Protective Commissioner (1993) 31 NSWLR 227
IF v IG & Ors [2004] NSWADTAP 3
JAB [2010] WASAT 97
McD v McD (1983) 3 NSWLR 81
OT v OU [2010] NSWADTAP 9
P v D1 [2011] NSWSC 257
P v R [2003] NSWSC 819
Public Trustee v Blackwood [1998] 8 Tas R 256
PY v RJS [1982] 2 NSWLR 70
P9/2000 [2011] NSWSC 49
S v S [2001] NSWSC 146
W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220
Category: Principal judgment
Parties: S J (first Plaintiff)
A J (second Plaintiff)
NSW Trustee & Guardian (first Defendant)
Guardianship Tribunal (second Defendant)
Public Guardian (third Defendant)
J K (fourth Defendant)
S H (fifth Defendant)
L J (sixth Defendant)
J C (seventh Defendant)
Representation: Counsel:
Mr A Hill; Ms M Pringle (first and second Plaintiffs)
Ms R Stormont (Sol) (first and second Defendants)
Mr M Higgins (fourth, fifth and…

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 SJ

Details

AGLC: Application of SJ [2011] NSWSC 372
Case: [2011] NSWSC 372
Decision Date: 03 May 2011

CaseChat Overview and Summary

The applicants in this case, represented by SJ, are seeking leave to appeal a decision made by the Guardianship Tribunal. The Tribunal had ruled on an application for financial management and guardianship concerning the first plaintiff. The fourth defendant had lodged the initial application, and the Tribunal subsequently appointed the first defendant as the financial manager of the first plaintiff's estate, and the third defendant as the guardian of the first plaintiff. The applicants, represented by SJ, are now seeking to appeal this decision and orders made by the Tribunal. They have filed a further amended summons seeking leave to appeal the Tribunal's decision, an order to set aside the Tribunal's orders, or alternatively, an order granting the financial management of the first plaintiff's estate, and her guardianship to the second plaintiff. Additionally, the applicants are seeking an order for the second plaintiff's costs against the first and third defendants to be paid out of the first plaintiff's estate.

The central legal issues that the court had to decide were whether the applicants were entitled to leave to appeal the Tribunal's decision and, if so, whether the Tribunal's orders should be set aside or if the financial management of the first plaintiff's estate and her guardianship should be granted to the second plaintiff. Furthermore, the court had to consider whether the second plaintiff's costs against the first and third defendants should be paid out of the first plaintiff's estate.

The court, after carefully considering the arguments presented by both parties, found that the applicants were entitled to leave to appeal the Tribunal's decision. However, the court did not consider it appropriate to set aside the Tribunal's orders or to grant the financial management of the first plaintiff's estate and her guardianship to the second plaintiff. The court also ruled that the second plaintiff's costs against the first and third defendants should not be paid out of the first plaintiff's estate. The court's reasoning was based on the fact that the applicants had not demonstrated that the Tribunal had made any error in its decision or that there were any substantial grounds for the appeal. The court was satisfied that the Tribunal had followed the correct legal principles and made its decision based on the evidence presented before it.

Orders