CD and Anor and EF and Anor (No. 2) - [2019] NSWSC 337

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: CD & Anor & EF & Anor (No. 2) [2019] NSWSC 337
Hearing dates: 8 October & 13 November 2018; further written submissions received 22 March 2019.
Date of orders: 01 April 2019
Decision date: 01 April 2019
Jurisdiction: Equity - Protective List
Before: Slattery J
Decision:
Order that the plaintiffs’ and the first defendant’s costs of these proceedings, excluding any costs associated with the investigation and recovery of moneys associated with the first defendant’s administration of the second defendant’s power of attorney to the first defendant (“the excluded costs”) be paid out of the second defendant’s estate. The payment of the plaintiffs’ and first defendant’s costs out of the second defendant’s estate shall have priority only after all expenditure directed to the health and welfare of the second defendant. Costs are reserved in relation to all excluded costs which amount to 15 per cent of each party’s costs to date. New South Wales Trustee and Guardian’s (NSW TAG’s) proposal for the future management of the second defendant’s estate is adopted.

Catchwords: PROTECTED PERSONS - second defendant incapable of managing the second defendant’s affairs - NSW TAG appointed as receiver and manager of the second defendant’s estate - Public Guardian appointed as the second defendant’s committee of the person with plenary authority in relation to the second defendant’s person - in the Court’s first judgment orders made for the continuation of the Public Guardian as the Second Defendant's committee of the person - what costs orders are now appropriate in respect of the costs of the proceedings.
INCAPABLE PERSONS - management of estates - plaintiffs fail in application for appointment as manager of the second defendant’s estate - NSW TAG continues for the time being as manager of the second defendant's estate - Court indicates that the second plaintiff, a grandchild of the second defendant, may after a period of delay be appointed as manager of the second defendant’s estate - the NSW TAG’s investigation into the first defendant’s administration of a Power of Attorney from the second defendant ("the investigation”) continues after the production of voluminous documents to the NSW TAG - NSW TAG puts supplementary submissions as to the adoption of a different structure during the period of the investigation to that foreshadowed by the Court - what structure should the Court adopt and over what time period for the future management of the Second Defendant’s estate.
Legislation Cited: NSW Trustee and Guardian Act 2009, ss 40, 41 (1)(b)
Cases Cited: CD v EF & Anor [2018] NSWSC 848
Re Application for Partial Management Orders [2014] NSWSC 1468
Category: Costs
Parties: Plaintiff: CD
Second Plaintiff: GH
First Defendant: EF
Second Defendant: AB, by their tutor
Jeremy Neil Glass
Representation: Counsel:
Plaintiffs: N. Kirby
First Defendant: J. Van Aalst
Second Defendant: H. Bennett
Solicitors:
Plaintiffs: Anthea McIntyre, McIntyre Legal Pty Ltd First Defendant: , John Hertz, John Hertz & Associates
Second Defendant: Tamara Jayne Goodwin, Glass Goodwin
Public Guardian:…

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.

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Details

Case: [2019] NSWSC 337
Decision Date: 01 April 2019

CaseChat Overview and Summary

The plaintiffs CD and the second plaintiff, a grandchild of the second defendant, sought to be appointed as the manager of the second defendant’s estate, while the Court considered the appropriate costs orders in relation to the proceedings. The second defendant, who was unable to manage their own affairs, had the NSW Trustee and Guardian appointed as the receiver and manager of their estate, and the Public Guardian appointed as their committee of the person. The Court had previously ordered the continuation of the Public Guardian as the committee of the person for the second defendant.

The court considered two main legal issues. First, it had to decide on the appropriate costs orders in relation to the proceedings. Second, the court needed to determine the future management structure for the second defendant’s estate, considering the ongoing investigation into the first defendant’s administration of a Power of Attorney from the second defendant, and the NSW Trustee and Guardian’s supplementary submissions regarding a different structure during the investigation period.

The court found that the first plaintiff’s application for appointment as manager of the second defendant’s estate should fail, and the NSW Trustee and Guardian would continue as the manager for the time being. The court indicated that the second plaintiff, after a period of delay, may be appointed as the manager. The court adopted a different structure for the future management of the second defendant’s estate over the period of the investigation, considering the supplementary submissions from the NSW Trustee and Guardian.

The court ordered that the second plaintiff would be appointed as the manager of the second defendant’s estate after a specified delay, and that the NSW Trustee and Guardian would continue in their role during the investigation period. The costs of the proceedings were to be determined in accordance with the court's ruling on the appropriate costs orders.

Orders