CD v EF - [2018] NSWSC 848

Supreme Court

New South Wales

Medium Neutral Citation: CD v EF & Anor [2018] NSWSC 848
Hearing dates: 26 & 27 April 2018 and 8 & 9 May 2018
Date of orders: 15 June 2018
Decision date: 15 June 2018
Jurisdiction: Equity
Before: Slattery J
Decision:
Orders made confirming the appointment of the Public Guardian as the second defendant's committee of the person. Orders made confirming the continued management of the second defendant's estate by the New South Wales Trustee and Guardian. Costs reserved and directions made for the future management of the proceedings.

Catchwords:
PROTECTED PERSONS – second defendant incapable of managing her affairs – New South Wales Trustee and Guardian appointed as receiver and manager of her estate – Public Guardian appointed as the second defendant's committee of the person with plenary authority in relation to her person – the second defendant currently resides in a nursing home – the second defendant has two children, the first plaintiff and the first defendant – the first plaintiff and the first defendant cannot agree upon the appropriate future place of accommodation for the second defendant – each of the second defendant's children holds strong but different convictions about where the second defendant should live – the first defendant contends that the second defendant should remain in the nursing home, where she now resides – the first plaintiff contends that the second defendant's specific personal needs require her to be transferred back to and accommodated in her former home – the first plaintiff seeks appointment as the second defendant's committee of the person – the first defendant seeks to maintain the interim appointment of the Public Guardian as the committee of the person for the second defendant – what are the second defendant's accommodation needs – what is the relationship between the second defendant's accommodation needs and the appointment of a committee of the person for her – what is in the second defendant's best interests in relation to appointment of a committee of the person for her – whether the plaintiff should be appointed as the second defendant's committee of the person – whether in the alternative, to the first plaintiff, the second plaintiff, the second defendant's grandchild should be appointed as the second defendant's committee of the person.
INCAPABLE PERONS – management of estates – dispute concerning what monies are owed by the first defendant to the estate of the second defendant – plaintiff seeks appointment as the manager of the second defendant's estate – first defendant seeks the continuation of the New South Wales Trustee and Guardian as manager of the second defendant's estate – what is in the best interests of the second defendant in relation to the management of her estate – at what time should these financial issues be resolved in relation to the other issues in the proceedings about the second defendant's committee of the person.
Legislation Cited: Guardianship Act 1987, ss 4, 8, 15
NSW Trustee and Guardian Act 2009, ss 39, 41

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 CD v EF

Details

AGLC: CD v EF [2018] NSWSC 848
Case: [2018] NSWSC 848
Decision Date: 15 June 2018

CaseChat Overview and Summary

CD v EF is a case involving the second defendant, who is unable to manage her own affairs. The New South Wales Trustee and Guardian has been appointed to manage the second defendant's estate, while the Public Guardian has been appointed as her committee of the person. The second defendant currently resides in a nursing home and has two children, CD and EF. The siblings cannot agree on the appropriate future accommodation for their mother, with CD advocating for her mother to be moved back to her former home, and EF preferring that she remains in the nursing home.

The court was required to decide several legal issues, including what the second defendant's accommodation needs were, how these needs related to the appointment of a committee of the person, and what was in the second defendant's best interests in relation to the appointment of a committee of the person. The court also had to consider whether CD should be appointed as the second defendant's committee of the person, or whether, in the alternative, the second defendant's grandchild, the second plaintiff, should be appointed.

In its reasoning, the court found that the second defendant's accommodation needs were a significant factor in determining her best interests. The court held that the second defendant's best interests were served by appointing a committee of the person who would be able to make decisions about her accommodation in the future. The court also found that CD's strong convictions about her mother's accommodation needs were not necessarily in her best interests, and that the second defendant's best interests would be better served by appointing a committee of the person who could make decisions in a more balanced way. The court did not appoint CD as the second defendant's committee of the person, and instead maintained the interim appointment of the Public Guardian. The court also found that the financial issues relating to the second defendant's estate should be resolved at the same time as the other issues in the proceedings.

The court did not appoint CD as the second defendant's committee of the person, and instead maintained the interim appointment of the Public Guardian. The court also found that the financial issues relating to the second defendant's estate should be resolved at the same time as the other issues in the proceedings.

Orders