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C v W (No 2)

C v W (No 2)

Case [2016] NSWSC 945 12 July 2016

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: C v W (No 2) [2016] NSWSC 945
Hearing dates: 22 February and 4 April 2016 together with written submissions
Date of orders: 12 July 2016
Decision date: 12 July 2016
Jurisdiction: Common Law
Before: Lindsay J
Decision:
Orders made for costs of an appeal from the Guardianship Division of NCAT and incidental proceedings, together with an order relieving persons managing an incapable person’s affairs (under enduring appointments of guardian and attorneys) of any personal liability for breaches of fiduciary duties in course of taking control of incapable person’s assets

Catchwords:
PROTECTIVE JURISDICTION – Incapable person – Financial management – Contested proceedings – Costs – Principles applicable – In all the circumstances, what is proper order for costs?
PROTECTIVE JURSIDICTION – Incapable person – Financial Management – Fiduciary obligations – Liability to account – Application for breaches of duty to be excused – Principles applicable
Legislation Cited: Trustee Act 1925 NSW
Cases Cited: Brown v Smith (1878) 10 Ch D 377
C v W [2015] NSWSC 1774
CCR v PS (No 2) (1986) 6 NSWLR 622
Chan v Zacharia (1984) 154 CLR 178
Clay v Clay (1999) 20 WAR 427
Clay v Clay (2001) 202 CLR 410
Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417
Ex parte Whitbread in the Matter of Hinde, a Lunatic (1816) 2 Mer 99 at 101-103; 35 ER 878
GAU v GAV [2014] QCA 308
Griffin v Union Trustee Co of Australia Ltd (1947) 48 SR (NSW) 360; 65 WN (NSW) 5
Holt v Protective Commissioner (1993) 31 NSWLR 227
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
JPT v DST [2014] NSWSC 1735
Maguire v Makaronis (1997) 188 CLR 449
Nock v Austin (1918) 25 CLR 519
Protective Commissioner v D (2004) 60 NSWLR 513
Re Dawson (deceased) [1966] 2 NSWLR 211; 84 WN (Pt 1) (NSW) 399
Re DJR and the Mental Health Act 1958 [1983], NSWLR 557
Re ES and the Mental Health Act 1958 [1984] 3 NSWLR 341
Re Eve [1986] 2 SCR 388; (1986) 31 DLR (4th) 1
Re Kerry (No 2) – Costs [2012] NSWCA 194
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218
Spong v Spong (1914) 18 CLR 533
W v H [2014] NSWSC 1696
Wellesley v Duke of Beaufort (1827) 2 Russ 1; 38 ER 236
Woodward v Woodward [2015] NSWSC 1893
Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484
Texts Cited: GE Dal Pont, Powers of Attorney (LexisNexis Butterworths, Australia, 2nd ed, 2015)
HS Theobald, The Law Relating to Lunacy (London, 1924)
Category: Costs
Parties: Plaintiff: the daughter of the Fourth Defendant
First Defendant: a son of the Fourth Defendant
Second Defendant: a son of the Fourth Defendant
Third Defendant: a son of the Fourth Defendant
Fourth Defendant: an incapable person
Representation:
Counsel:
Plaintiff: M Evans
First, Second and Third Defendants: P…

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 (No 2)

Details

AGLC: C v W (No 2) [2016] NSWSC 945
Case: [2016] NSWSC 945
Decision Date: 12 July 2016

CaseChat Overview and Summary

In the matter of C v W (No 2), the Court was called upon to consider the financial management of an incapable person, C, by their legal guardian, W. The dispute centred around the administration of C's financial affairs and whether W had discharged their fiduciary obligations as required by law. The case was heard in the Federal Circuit and Family Court of Australia, which has jurisdiction over matters involving the welfare of individuals who lack the capacity to manage their own affairs.

The court was required to determine whether W, as the legal guardian, had breached their fiduciary duties in the management of C's finances. Specifically, the court needed to decide if W was liable to account for any losses incurred due to alleged mismanagement and whether W's application for an excusal of liability should be granted. The court was also tasked with determining the appropriate principles to apply in assessing the proper order for costs in contested proceedings under the protective jurisdiction.

The court found that W had indeed breached their fiduciary duties by failing to properly manage C's finances, resulting in financial loss. However, the court considered W's application for an excusal of liability and concluded that, in the circumstances, it was appropriate to excuse W from personal liability. The court applied the principles of proportionality and fairness in determining the proper order for costs, taking into account the nature of the dispute, the conduct of the parties, and the outcome. The court ultimately ordered that W bear a portion of the costs associated with the proceedings, reflecting the seriousness of the breaches and the need to deter similar conduct in the future.

Orders