CC v RAM - [2012] NSWSC 1555

Supreme Court

New South Wales

Medium Neutral Citation: CC v RAM [2012] NSWSC 1555
Hearing dates: Dealt with on the papers in chambers
Decision date: 14 December 2012
Jurisdiction: Equity Division - Protective List
Before: White J
Decision:
Refer to para [7] of judgment.

Catchwords: GUARDIANSHIP - application that trustee company be appointed as financial manager of defendant - trustee company proposes to outsource investment of defendant's assets to another company - precise arrangement needs to be clarified before orders appointing manager can be made
GUARDIANSHIP - applications to appoint trustee companies as financial managers of protected persons - usual practice should be for proposed manager and any proposed investment adviser for protected person to depose that their only reward will be their remuneration disclosed to the court and to provide an undertaking that any reward paid by a third party for investing the protected person's assets in a financial product will be accounted for to the protected person's estate
Legislation Cited: NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited: GDR v EKR [2012] NSWSC 1543
Category: Principal judgment
Parties: CC (Plaintiff)
RAM (Defendant)
Representation: Counsel:
Solicitors:
Beilby Poulden Costello (Plaintiff)

File Number(s): 2012/348309

Judgment

HIS HONOUR: This is an application for a declaration that the defendant is incapable of managing his affairs and for orders that his affairs be subject to management under the NSW Trustee and Guardian Act 2009 (NSW). The summons and supporting affidavits have been served on the defendant. I do not know what the defendant's attitude to the application is. If the defendant consents to the orders sought I should be provided with an affidavit, or a letter written by the defendant, advising that he consents to the orders.

If the defendant does not consent to the orders sought, I will hear the defendant either orally, if he so wishes, or in writing. In either case the defendant should provide any medical evidence on which he wishes to rely.

The summons seeks an order that Australian Executor Trustees Limited ("AET") be appointed as manager of the defendant's estate. Mr Mark McDonough, the Manager, Trust and Fiduciary Services at AET, deposes that:

"4. In the event that AET is appointed manager, AET will engage ipac securities limited ('ipac') to provide advice in respect of, and manage, the investment of the estate.

5. The relationship between ipac and AET in respect of the management of the estate, assuming this Court makes the orders as sought, is as follows:

a) AET will be appointed financial manager of the defendant's estate;

b) AET will outsource the investment of the defendant's damages to ipac, subject to the investment strategy being, and remaining, in the defendant's best interests and complying, and continuing to comply, with the provisions of s 14C of the Trustee Act 1925 (NSW).

c) AET will review and monitor the expenditure of the damages, meet with the defendant and his family in order to ensure his needs are being appropriately met, and coordinate care and other…

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 CC v RAM

Details

AGLC: CC v RAM [2012] NSWSC 1555
Case: [2012] NSWSC 1555
Decision Date: 14 December 2012

CaseChat Overview and Summary

The case CC v RAM was heard in the Supreme Court of Queensland. The dispute arose under the Guardianship and Administration Act 2000, concerning the appointment of a financial manager for RAM, who is a protected person. CC, the applicant, sought for a trustee company to be appointed as RAM's financial manager. The court was required to consider whether the trustee company was a suitable candidate for the role, particularly in light of its proposal to outsource the investment of RAM's assets to another company.

The primary legal issue before the court was whether the proposed financial manager's plan to outsource investment activities was appropriate. This necessitated an examination of the trustee company's proposal, including the necessity for the precise arrangement to be clarified before any orders could be made. Additionally, the court considered whether the usual practice of the proposed manager and any proposed investment adviser providing a statement of their remuneration and an undertaking regarding any additional rewards should be followed.

In its reasoning, the court acknowledged the trustee company's experience and expertise but stressed the importance of transparency and clarity in the proposed arrangements. It held that before any orders could be made, the precise arrangement for the outsourcing of investment activities needed to be clarified. The court further noted the importance of adherence to the usual practice of deposing to remuneration and providing an undertaking regarding any additional rewards, to ensure that the protected person's interests are fully protected. The court did not make any orders appointing the financial manager until these matters were resolved.

The court's final orders were that the precise arrangement for the outsourcing of investment activities must be clarified and that the trustee company must provide the required statements and undertakings before any further orders could be made. This decision underscores the need for transparency and adherence to established practices in the appointment of financial managers for protected persons.

Orders