BFE - [2017] NSWCATGD 45

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BFE [2017] NSWCATGD 45
Hearing dates: 19 April 2017
Date of orders: 24 April 2017
Decision date: 24 April 2017
Jurisdiction: Guardianship Division
Before: J Currie, Senior Member (Legal)
Decision:
1. The financial management order for Mrs BFE made on 18 December 2015 is varied.

2. The appointment of the NSW Trustee and Guardian as the financial manager of the estate of Mrs BFE is revoked.

3. Mrs DAQ is appointed the manager of the estate of Mrs BFE.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until the financial manager has obtained all necessary authorities from the NSW Trustee.

4. The NSW Trustee and Guardian is to pay over or hand over the estate to Mrs DAQ.
5. The financial management order for Mrs BFE as varied, is to be reviewed by the Tribunal within 18 months.
Catchwords: FINANCIAL MANAGEMENT – application for revocation of a financial management order –whether subject person has regained capacity to manage affairs – meaning of capability to manage one’s own affairs – conflicting expert evidence – legal tests of capability – additional factors noted by Lindsay J in CJ v AKJ [2015] NSWSC 498 – “support mechanisms” “past experience” “protective nature of the jurisdiction” – subject person victim of fraudulent misappropriation by her solicitor – subject person found not to have regained capability – best interests not to revoke order – financial management order varied – appointment of NSW Trustee and Guardian revoked – suitability for appointment as financial manager – reviewable financial management order made – private manager appointed
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 36
Guardianship Act 1987 (NSW), ss 4, 4(a), 4(g), 25A(b), 25P(1)(a), 25P(1)(b), 25P(2)
Cases Cited: CJ v AKJ [2015] NSWSC 498
G v G [2016] NSWSC 511
GW v Protective Commissioner [2003] NSW ADTAP 51
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re D [2012] NSWSC 1006
Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106
Category: Principal judgment
Parties: Mrs BFE (subject person)
Ms TED (applicant and appointed attorney)
The NSW Trustee and Guardian
Representation:
Separate Representation:
V Massey (Mrs BFE)
Legal Representation:
D Lalic (Mrs BFE)
K Kelly replacing P Ives (Ms TED)

File Number(s): 61374
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

APPLICATION TO REVOKE FINANCIAL MANAGEMENT ORDER

What the Tribunal decided

The Tribunal decided not to revoke the financial management order which had been made for Mrs BFE on 18 December 2017. It decided to vary that order.
The Tribunal revoked the appointment of NSW Trustee and Guardian as…

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 BFE

Details

AGLC: BFE [2017] NSWCATGD 45
Case: [2017] NSWCATGD 45
Decision Date: 24 April 2017

CaseChat Overview and Summary

In this matter, Mrs BFE, the subject person, applied for the revocation of a financial management order made in 2015, whereby the NSW Trustee and Guardian was appointed as her financial manager. The application was heard in the Supreme Court of New South Wales, where conflicting expert evidence was presented regarding whether Mrs BFE had regained the capacity to manage her own affairs. The court was tasked with determining the meaning of "capability to manage one’s own affairs" and whether Mrs BFE had indeed regained such capability.

The legal issues at hand required the court to consider the relevant tests for determining a person’s capability to manage their own affairs, as well as the additional factors identified by Lindsay J in CJ v AKJ [2015] NSWSC 498. These factors included the existence of support mechanisms, the individual's past experience in managing their affairs, and the protective nature of the financial management jurisdiction. The court also had to consider the impact of fraudulent misappropriation by Mrs BFE's former solicitor on her ability to manage her financial affairs.

After examining the evidence and applying the relevant legal tests, the court found that Mrs BFE had not regained the capability to manage her own affairs. The court noted that while she demonstrated some improvements in her financial management skills, she still required assistance due to her vulnerability and the risks associated with her decision-making. The court also considered the best interests of Mrs BFE in deciding not to revoke the financial management order. Instead, the court varied the order by revoking the appointment of the NSW Trustee and Guardian as the financial manager and appointing Mrs DAQ as the new financial manager. This decision was made in light of the court's assessment of Mrs DAQ's suitability for the role, taking into account her experience and understanding of Mrs BFE's circumstances. The court also ordered that the NSW Trustee and Guardian was to hand over the estate to Mrs DAQ and that the financial management order as varied was to be reviewed by the Tribunal within 18 months.

Orders

Orders of the court

1. The financial management order for Mrs BFE made on 18 December 2015 is varied.

2. The appointment of the NSW Trustee and Guardian as the financial manager of the estate of Mrs BFE is revoked.

3. Mrs DAQ is appointed the manager of the estate of Mrs BFE.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until the financial manager has obtained all necessary authorities from the NSW Trustee.

4. The NSW Trustee and Guardian is to pay over or hand over the estate to Mrs DAQ.

5. The financial management order for Mrs BFE as varied, is to be reviewed by the Tribunal within 18 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	BFE [2017] NSWCATGD 45
Hearing dates:	19 April 2017
Date of orders:	24 April 2017
Decision date:	24 April 2017
Jurisdiction:	Guardianship Division
Before:	J Currie, Senior Member (Legal)
Decision:	1. The financial management order for Mrs BFE made on 18 December 2015 is varied. 2. The appointment of the NSW Trustee and Guardian as the financial manager of the estate of Mrs BFE is revoked. 3. Mrs DAQ is appointed the manager of the estate of Mrs BFE. NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until the financial manager has obtained all necessary authorities from the NSW Trustee. 4. The NSW Trustee and Guardian is to pay over or hand over the estate to Mrs DAQ. 5. The financial management order for Mrs BFE as varied, is to be reviewed by the Tribunal within 18 months.
Catchwords:	FINANCIAL MANAGEMENT – application for revocation of a financial management order –whether subject person has regained capacity to manage affairs – meaning of capability to manage one’s own affairs – conflicting expert evidence – legal tests of capability – additional factors noted by Lindsay J in CJ v AKJ [2015] NSWSC 498 – “support mechanisms” “past experience” “protective nature of the jurisdiction” – subject person victim of fraudulent misappropriation by her solicitor – subject person found not to have regained capability – best interests not to revoke order – financial management order varied – appointment of NSW Trustee and Guardian revoked – suitability for appointment as financial manager – reviewable financial management order made – private manager appointed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 36 Guardianship Act 1987 (NSW), ss 4, 4(a), 4(g), 25A(b), 25P(1)(a), 25P(1)(b), 25P(2)
Cases Cited:	CJ v AKJ [2015] NSWSC 498 G v G [2016] NSWSC 511 GW v Protective Commissioner [2003] NSW ADTAP 51 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106
Category:	Principal judgment
Parties:	Mrs BFE (subject person) Ms TED (applicant and appointed attorney) The NSW Trustee and Guardian
Representation:	Separate Representation: V Massey (Mrs BFE) Legal Representation: D Lalic (Mrs BFE) K Kelly replacing P Ives (Ms TED)
File Number(s):	61374
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).