Supreme Court
New South Wales
Medium Neutral Citation: GDR v EKR [2012] NSWSC 1543 Hearing dates: 27 November 2012; and on papers in chambers Decision date: 14 December 2012 Jurisdiction: Equity Division - Protective List Before: White J Decision: Liberty to apply or restore the matter.
Catchwords: GUARDIANSHIP - defendant incapable of managing her affairs - application by father for appointment of private company as financial manager - private company not a trustee company - whether company requires a financial services licence - whether private manager should receive remuneration - whether private manager in position of conflict of interest and duty due to personal interest in investing defendant's assets in certain financial products - noted that relationship between protected person and manager under the scheme of the NSW Trustee and Guardian Act is that of principal and agent, not trustee and beneficiary, so legal title in protected person's property should not vest in manager - no orders made unless and until private manager obtains financial services licence - NSW Trustee and Guardian appointed interim receiver and manager Legislation Cited: NSW Trustee and Guardian Act 2009 (NSW)
Corporations Act 2001 (Cth)Cases Cited: Gell v Gell [2005] NSWSC 566; (2005) 63 NSWLR 547
G v B (Supreme Court of New South Wales, Powell J, 27 May 1992, unreported)
Holt v Protective Commissioner (1993) 31 NSWLR 227
JJK v APK (1986) Aust Tort Reports 80-042
Anson v Anson [2004] NSWSC 766; (2004) 12 BPR 22,303
Ex P Femor; In the matter of Errington (1821) Jac 404; 37 ER 903
Re Walker (1848) 2 Phil 630
Aberdeen Railway Co v Blaikie Bros (1854) 2 Eq Rep 1281; [1843-60] All ER Rep 249Category: Principal judgment Parties: GDR (Plaintiff)
EKR (Defendant)Representation: Counsel:
H Stowe (Plaintiff)
M Heath (Ability One Financial Management)
Solicitors:
Matthews Folbigg (Plaintiff)
File Number(s): 2012/122431
Judgment
HIS HONOUR: This is an application for a declaration that the defendant, EKR, is incapable of managing her affairs and an order that her estate be subject to management pursuant to the NSW Trustee and Guardian Act 2009 (NSW). I am satisfied that in due course that declaration and order should be made.
EKR sustained injuries in a road traffic accident on 29 March 1999 when she was a young child. She commenced proceedings in the District Court in relation to the injuries she suffered. Those proceedings were resolved by way of a settlement that was approved by the District Court. EKR is entitled to settlement moneys in excess of $2 million. I am satisfied on the medical evidence that she is not capable of managing her affairs, nor capable of managing the ordinary routine affairs of man or woman.
The plaintiff is EKR's father. He also seeks an order that management of her estate be committed to Ability One Financial Management Pty Ltd ("Ability One Financial Management"). The issue on the application is whether that company should be appointed as financial manager. I have made an interim order appointing…
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- AGLC
- GDR v EKR [2012] NSWSC 1543
- Case
- [2012] NSWSC 1543
- Decision Date
CaseChat Overview and Summary
The court held that the relationship between the protected person and the manager is that of principal and agent, not trustee and beneficiary, under the NSW Trustee and Guardian Act. Therefore, legal title in the protected person's property should not vest in the manager. The court also determined that the private manager would require a financial services licence and that no orders should be made unless and until the private manager obtained such a licence. The potential conflict of interest was noted, but the court did not make any orders at that time.
The court found that the private manager was not suitable for appointment as the defendant's financial manager until the company obtained a financial services licence and addressed the conflict of interest issue. The NSW Trustee and Guardian was appointed as the interim receiver and manager of the defendant's financial affairs. The court did not make any final orders at that stage, leaving the matter open for further application once the private manager had addressed the legal and conflict of interest issues.
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Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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