DZS - [2016] NSWCATGD 64

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DZS [2016] NSWCATGD 64
Hearing dates: 28 June 2016
Date of orders: 28 June 2016
Decision date: 28 June 2016
Jurisdiction: Guardianship Division
Before: R Booby, Senior Member (Legal)
W Longley, Senior Member (Professional)
S Fogg, General Member (Community)
Decision:
1. The estate of Mr DZS is subject to management under the NSW Trustee and Guardian Act 2009.
2. Ms TAL is appointed as the financial manager of the estate.
3. This order be reviewed by the Tribunal within 3 months.

Catchwords: FINANCIAL MANAGEMENT – application for a financial management order – 16-year-old subject person – person under legal incapacity – need for financial manager to assist with administration of discretionary trust and legal proceedings – separate representative appointed – private manager appointed
Legislation Cited: Civil Procedure Act 2005 (NSW), s 3
Guardianship Act 1987 (NSW), ss 4, 15, 25M
Minors (Property and Contracts) Act 1970 (NSW), s 50
Cases Cited: CJ v AKJ [2015] NSWSC 498
Holt v Protective Commissioner (1993) 31 NSWLR 227
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re D [2012] NSWSC 1006
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Category: Principal judgment
Parties: Mr DZS (subject person)
Ms JBS (applicant and carer)
Ms TAL (party joined)
The NSW Trustee and Guardian
Representation: Separate Representation:
M Streeter (Subject Person)

File Number(s): 61462
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

The Tribunal appointed Ms TAL as Mr DZS's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian and ordered that the order be reviewed in three months.
The Tribunal ordered that Mr DZS be represented by a separate representative at the review of the order and that the Separate Representative should provide the Tribunal with a submission regarding whether the best interests of Mr DZS were best met by the confirmation of the order or whether matters would more appropriately be determined by the Supreme Court.

Background

Mr DZS is 16-years-old and resides with his mother, Ms JBS, in regional NSW. His brothers, Mr KXS and Mr MYS, and his sister also live in the house.
On 15 December 2015, the Tribunal received an application from Ms JBS seeking the appointment of a financial manager for each of her three sons.
On 12 April 2016, the Tribunal held a directions hearing at which it:

Ordered separate representation for each of Ms JBS’s sons.

Joined as a party to the proceedings Ms TAL, who is the aunt of Mr DZS.

Directed any legal practitioner assisting Ms JBS to file a submission detailing…

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 DZS

Details

AGLC: DZS [2016] NSWCATGD 64
Case: [2016] NSWCATGD 64
Decision Date: 28 June 2016

CaseChat Overview and Summary

The case involved an application for a financial management order concerning the estate of Mr DZS, a 16-year-old who is deemed to be under legal incapacity. The application was made to the Court of Protection in New South Wales, seeking assistance with the administration of a discretionary trust and ongoing legal proceedings. The court was tasked with determining whether a financial manager was necessary to manage Mr DZS's estate and, if so, who should be appointed to the role.

The court had to decide whether Mr DZS required a financial manager to administer his estate and if a private manager was more appropriate than a representative appointed by the Tribunal. The key issue was balancing the need for effective financial management with the potential benefits of appointing a private manager, who could provide more tailored and continuous support. The court also considered the views and wishes of Mr DZS, as well as the recommendations of various experts involved in his care.

In making its decision, the court recognised the complexity of Mr DZS's situation, which included a discretionary trust and ongoing litigation. The court concluded that a financial manager was necessary to ensure the proper administration of his estate. After weighing the advantages and disadvantages of a private manager versus a Tribunal-appointed representative, the court determined that a private manager was more suitable. Ms TAL was appointed as the financial manager of Mr DZS's estate, with the order to be reviewed by the Tribunal within three months.

The final orders of the court were that Mr DZS's estate is subject to management under the NSW Trustee and Guardian Act 2009, Ms TAL is appointed as the financial manager of the estate, and the order is to be reviewed by the Tribunal within three months. This decision underscores the court's commitment to ensuring that individuals under legal incapacity receive appropriate financial management, tailored to their specific needs and circumstances.

Orders

Orders of the court

1. The estate of Mr DZS is subject to management under the NSW Trustee and Guardian Act 2009.

2. Ms TAL is appointed as the financial manager of the estate.

3. This order be reviewed by the Tribunal within 3 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	DZS [2016] NSWCATGD 64
Hearing dates:	28 June 2016
Date of orders:	28 June 2016
Decision date:	28 June 2016
Jurisdiction:	Guardianship Division
Before:	R Booby, Senior Member (Legal) W Longley, Senior Member (Professional) S Fogg, General Member (Community)
Decision:	1. The estate of Mr DZS is subject to management under the NSW Trustee and Guardian Act 2009. 2. Ms TAL is appointed as the financial manager of the estate. 3. This order be reviewed by the Tribunal within 3 months.
Catchwords:	FINANCIAL MANAGEMENT – application for a financial management order – 16-year-old subject person – person under legal incapacity – need for financial manager to assist with administration of discretionary trust and legal proceedings – separate representative appointed – private manager appointed
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 3 Guardianship Act 1987 (NSW), ss 4, 15, 25M Minors (Property and Contracts) Act 1970 (NSW), s 50
Cases Cited:	CJ v AKJ [2015] NSWSC 498 Holt v Protective Commissioner (1993) 31 NSWLR 227 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Category:	Principal judgment
Parties:	Mr DZS (subject person) Ms JBS (applicant and carer) Ms TAL (party joined) The NSW Trustee and Guardian
Representation:	Separate Representation: M Streeter (Subject Person)
File Number(s):	61462
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).