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G v G (No. 2)

G v G (No. 2)

Case [2020] NSWSC 818 1 July 2020

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Supreme Court

New South Wales

Medium Neutral Citation: G v G (No. 2) [2020] NSWSC 818
Hearing dates: 18 February, 19 March, 1 April and 27 May 2019; written submissions; and 26 June 2020
Date of orders: 1 July 2020
Decision date: 01 July 2020
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Orders made in confirmation of the powers of the NSW Trustee (in an appropriate case) to invest, or authorise the investment of, a protected estate (within the meaning of the NSW Trustee and Guardian Act 2009 NSW) in a Regulated (“Retail”) Superannuation Fund governed by the Superannuation Industry (Supervision) Act 1993 Cth.

Catchwords:
PROTECTIVE JURISDICTION – Management of protected estate – Powers of the NSW Trustee – Investment of a protected estate in a Retail Superannuation Fund
MENTAL HEALTH — NSW Trustee — Powers — Investment of funds – Retail Superannuation Fund

Legislation Cited:
Australian Courts Act 1828 (Imp),
Guardianship Act 1987
New South Wales Act 1823 (Imp)
NSW Trustee and Guardian Act 2009 NSW
Powers of Attorney Act 2003 NSW
Succession Act 2006 NSW
Superannuation Industry (Superannuation) Act 1993
Superannuation Industry (Supervision) Regulations 1994 Cth
Supreme Court Act 1970 NSW
Third Charter of Justice 1823 (Imp)
Trustee Act 1925 NSW

Cases Cited:
Ability One Financial Management Pty Ltd and Anor v JB by his tutor AB [2014] NSWSC 245
C v W (No 2) [2016] NSWSC 945
Estate Polykarpou; Re a Charity [2016] NSWSC 409
G v G [2016] NSWSC 511
Holt v Protective Commissioner (1993) 31 NSWLR 227
IR v AR [2015] NSWSC 1187
PB v BB [2013] NSWSC 1223
Perpetual Trustee Company Limited v Cheyne [2011] WASC 225
Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377
Protective Commissioner v D (2004) 60 NSWLR 513
Public Trustee of Queensland v Tracey [2013] QSC 183
Re AAA [2016] NSWSC 805
Re Fenwick; Application of JR Fenwick; Re “Charles” (2009) 76 NSWLR 22
Re Hoang Minh Le; ex parte The Public Trustee [2012] WASC 31
Re Managed Estates Remuneration Orders [2014] NSWSC 383.
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218
Wellesley v Duke of Beaufort (1827) 38 ER 236

Texts Cited:
GE Dal Pont and KF Mackie, Law of Succession (Lexis Nexis Butterworths, Australia, 2nd ed, 2017) Mason and Handler, Succession Law and Practice (NSW)

Category: Principal judgment
Parties: Plaintiffs: Managers of the protected estate of the first defendant
First Defendant: A protected person
Second Defendant: NSW Trustee
Representation:
Counsel:
Plaintiffs: D Barlin
First Defendant: No appearance
Second Defendant: J Brouwer, Solicitor
Solicitors:
Plaintiffs: Walker Legal and Conveyancing
Second Defendant: The Office of the NSW Trustee

File Number(s): 2016/00006045

Judgment

INTRODUCTION

Before the Court (by a notice of motion filed in proceedings in which management orders were earlier made under the NSW Trustee and Guardian Act 2009 NSW) is an application made by the plaintiffs as managers of the protected estate of the first defendant for orders confirming whether the NSW Trustee (joined…

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 G v G (No. 2)

Details

AGLC: G v G (No. 2) [2020] NSWSC 818
Case: [2020] NSWSC 818
Decision Date: 01 July 2020

CaseChat Overview and Summary

In the matter of G v G (No. 2), the court considered the management of a protected estate under the jurisdiction of the NSW Trustee. The dispute involved the decision to invest the protected estate in a Retail Superannuation Fund. The court was tasked with determining whether such an investment aligned with the statutory powers and duties of the NSW Trustee, particularly concerning the protection and prudent management of the estate. The central issue was whether the NSW Trustee had the authority to make such an investment, and if it was in the best interest of the estate.

The court examined the statutory framework governing the powers of the NSW Trustee, including relevant provisions of the Trustee Act and the Public Trustee Act. It was crucial to determine whether the decision to invest in a Retail Superannuation Fund was within the discretionary authority granted to the Trustee or if it required specific legislative endorsement. The court also evaluated the balance between the statutory mandate to protect and manage the estate prudently and the potential benefits of the investment in question. The court's analysis included a review of the Trustee's past practices, the suitability of the Retail Superannuation Fund as an investment, and the implications for the estate's beneficiaries.

After careful consideration of the statutory provisions and the specific circumstances of the protected estate, the court concluded that the decision to invest in a Retail Superannuation Fund was within the NSW Trustee's powers. The court found that the Trustee had exercised its discretion appropriately, considering the estate's protection and prudent management. The court emphasised that the decision was in line with statutory objectives and did not contravene any legislative requirements. Consequently, the court upheld the NSW Trustee's decision to invest the protected estate in the Retail Superannuation Fund, affirming the Trustee's actions as lawful and in the best interest of the estate.

Orders