C v W

Case [2015] NSWSC 1774 27 November 2015

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Supreme Court

New South Wales

Medium Neutral Citation: C v W [2015] NSWSC 1774
Hearing dates: 20 October 2015
Date of orders: 27 November 2015
Decision date: 27 November 2015
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
(1) Order that the plaintiff’s appeal to the Court from the Guardianship Division of NCAT be dismissed.
(2) Reserve all questions of costs.
Catchwords:
APPEALS – Appeal to Court from Guardianship Division of NSW Civil and Administrative Tribunal – Appeal from dismissal of application for financial management order - Construction and operation of Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14 – Appeal limited to questions of law - Appeal dismissed
PRACTICE – Guardianship and Protected Estate Management Appeal to Court from dismissal of application for financial management order - Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14
Legislation Cited: Civil and Administrative Tribunal Act 2013
Guardianship Act 1987 NSW
NSW Trustee and Guardian Act 2009 NSW s71(1)
Powers of Attorney Act 2003 NSW
Cases Cited: Ability One Financial Management Pty Ltd and Another v JB by his tutor AB [2014] NSWSC 245 at [35](h)-(i) and [143]-[175])
Azzopardi v Tasman EUB Industries Ltd (1985) 4 NSWLR 139 at 156-157
BKE v Office of Children’s Guardian (2015) NSWSC 523 at [35]
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984[ 3 NSWLR 98 at 100B-101B and 101E-G
CJ v AKJ [2015] NSWSC 498 at [30]-[42]
Clay v Clay (2001) 202 CLR 410 at 428[37]-430[40] and 432[46]-433[49])
Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 395
Collins v Urban [2014] NSWCATAP 17[82]-[84],
Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423
EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 at [181]-[189)
Escobar v Spindaleri (1986) 7 NSWLR 51 at 57C, 59A-B and 60G
Ex parte Currie; re Dempsey (1969) 70 SR (NSW) 443 at 447; 91 WN (NSW) 34 at 38
Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478 at 482[4] - 484[8] and 497[49]-[51]
H v H [2015] NSWSC 837 at [27]-[36]
Haynes v Leves (1987) 8 NSWLR 442, 469 at 470
Holmwood Holdings Pty Limited v Halkat Electrical Contractors Pty Limited [2005] NSWSC 1129 at [36), [41]-[43] and [51]
House v The King (1936) 55 CLR 499 at 504-505
In Ex parte Whitbread in the Matter of Hinde, a Lunatic (1816) 2 Mer 99 at 101-103; 35 ER 878 at 879
J v Lieschke (1987) 162 CLR 447 at 456-457
John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476
Kirk v Industrial Court of NSW (2010) 239 CLR 531 at 573[71]-574[73]
Knaggs v Solicitors’ Statutory Committee [No. 2] (1992) 27 NSWLR 603 at 610-612
Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390 at 418 [89]-[91]
Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245 at 257[61]
Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86

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 C v W

Details

AGLC: C v W [2015] NSWSC 1774
Case: [2015] NSWSC 1774
Decision Date: 27 November 2015

CaseChat Overview and Summary

The case of C v W involved an appeal from the Guardianship Division of the NSW Civil and Administrative Tribunal. The appellant sought a financial management order over the respondent's estate. The dispute arose from concerns about the respondent's capacity to manage their financial affairs effectively, leading to the application for a financial management order. The Guardianship Division dismissed the application, prompting the appellant to appeal to the Court, which was limited to questions of law.

The primary legal issue before the Court was the interpretation and application of Schedule 6, clause 14 of the Civil and Administrative Tribunal Act 2013 NSW. The appellant argued that the Tribunal had erred in its interpretation of the statutory criteria for granting a financial management order. Specifically, the appellant contended that the Tribunal failed to properly assess the respondent's capacity to manage their finances and did not adequately consider the evidence presented.

The Court found that the Tribunal had correctly applied the statutory provisions in making its decision. The evidence presented did not meet the threshold required to establish the respondent's incapacity to manage their financial affairs. The Court held that the Tribunal's assessment of the respondent's capacity was reasonable and consistent with the statutory criteria. Consequently, the appeal was dismissed, and the decision of the Guardianship Division was upheld.

No further orders were made by the Court.

Orders