FC v SC

Case [2022] NSWSC 1780 31 December 2022

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Supreme Court

New South Wales

Medium Neutral Citation: FC v SC [2022] NSWSC 1780
Hearing dates: 20, 21, 22, 23 & 24 June, and 7, 8, 13 & 14 July 2022
Date of orders: 15 December 2022
Decision date: 31 December 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Orders made pursuant to the NSW Trustee and Guardian Act 2009, s 41(1)(a) that the estate of the second defendant be subject to management under the Act. Other consequential orders made.

Catchwords:
MENTAL HEALTH - Protected Estates – the plaintiff applies for a declaration and orders under the New South Wales Trustee and Guardian Act 2009, s 41(1)(a) (“the TAG Act”) that the estate of his father, the first defendant, be subject to management orders under the TAG Act – the first defendant is taken out of the jurisdiction by his nephew, the second defendant – the first defendant now lives with the second defendant – the plaintiff applies for declarations that various powers of attorney and enduring guardian appointments executed by the father are void and of no effect – whether the first defendant is a person “incapable of managing his or her affairs” – whether the estate of the first defendant should be subject to management under TAG Act.

Legislation Cited:
Civil Procedure Act 2005, s 26
COVID-19 Legislation Amendment (Emergency Measures) Act 2020
Guardianship Act 1987 ss 4, 6H, 8, 15(3), 24
Jurisdiction of Courts (Cross Vesting Act) 1987 (NSW), s 9
Jurisdiction of Courts (Cross Vesting Act) 1987 (Qld), s 4
NSW Trustee and Guardian Act 2009, ss 41(1A), 41(2)
Powers of Attorney Act 1998 (Qld), s 113
Powers of Attorney Act 2003, s 36

Cases Cited:
Aboody v Ryan [2012] NSWCA 395
Aboody v Ryan [2012] NSWSC 136
Application of SG [2011] NSWSC 372
CD v EF [2018] NSWSC 848
CJ v AKJ [2015] NSWSC 498
EB v Guardianship Tribunal [2011] NSWSC 767
IR v AR [2015] NSWSC 1187
PY v RJS [1982] 2 NSWLR 700
Re B (No. 1) [2011] NSWSC 1075
Szozda v Szozda [2010] NSWSC 804
W v G (2003) 59 NSWLR 220

Texts Cited:
Blackstone, Commentaries on the Laws of England (9th ed, 1783, Printed for Strahan, Cadell, & Prince)
H. S. Theobald, The Law Relating to Lunacy (1924, Stevens & Sons Ltd)
Meagher Gummow and Lehane explain, W Gummow, M Leeming and P Turner, Meagher Gummow and Lehane’s Equity Doctrines and Remedies, 5th edition, LexisNexis , [15-105]

Category: Principal judgment
Parties: Plaintiff: FC
First Defendant: SC
Second Defendant: JC
Third Defendant: NSW Trustee and Guardian
Representation:
Counsel:
Plaintiff: Mr A. Crossland; Ms B. Flaherty
First Defendant: Mr A. Galapo
Solicitors:
Plaintiff: Jeffrey Barrett, Attwood Marshall Lawyers Pty Ltd
Second Defendant: in person
Third Defendant: Ms R. Stormont, NSW Trustee and Guardian

File Number(s): 2021/00074726
Publication restriction: No

Judgment

The plaintiff, FC is the son of the second defendant, JC. The first defendant, SC is the nephew of FC and a cousin of FC.
In these proceedings the plaintiff,…

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 FC v SC

Details

AGLC: FC v SC [2022] NSWSC 1780
Case: [2022] NSWSC 1780
Decision Date: 31 December 2022

CaseChat Overview and Summary

The case of FC v SC involves the plaintiff, who sought a declaration and orders under the Trustee and Guardian Act 2009 (TAG Act) in New South Wales. The plaintiff applied for these orders concerning the estate of his father, the first defendant, after the first defendant was taken out of the jurisdiction by his nephew, the second defendant. The plaintiff argued that the first defendant is incapable of managing his affairs and thus his estate should be subject to management under the TAG Act. Additionally, the plaintiff sought declarations that various powers of attorney and enduring guardian appointments executed by the first defendant are void and of no effect.

The central legal issues the court had to address were whether the first defendant is a person "incapable of managing his or her affairs" within the meaning of the TAG Act and, if so, whether his estate should be subject to management under the Act. The court also needed to consider the validity of the powers of attorney and enduring guardian appointments executed by the first defendant.

In determining these issues, the court examined the evidence regarding the first defendant's mental capacity and the circumstances under which the powers of attorney and enduring guardian appointments were executed. The court found that the first defendant's capacity to manage his affairs was significantly impaired, particularly due to his advanced dementia. The court also determined that the powers of attorney and enduring guardian appointments were not validly executed, as they were influenced by undue pressure from the second defendant. Based on these findings, the court concluded that the first defendant's estate should be subject to management under the TAG Act, and it issued the declarations sought by the plaintiff.

The court's final orders included a declaration that the estate of the first defendant is subject to management under the TAG Act and that the various powers of attorney and enduring guardian appointments executed by the first defendant are void and of no effect. These orders ensure that the first defendant's estate is appropriately managed in light of his incapacity and protect against any undue influence exerted by the second defendant.

Orders