CITATION:
Re Gell [2005] NSWSC 566

HEARING DATE(S): Application in chambers without appearance of any person

JUDGMENT DATE :

16 June 2005

JURISDICTION:
Equity
Protective List

JUDGMENT OF:
Campbell J

DECISION:
Declaration and orders made appointing manager of estate of missing person

CATCHWORDS:
PROPERTY - appointment of manager of the estate of a missing person under Protected Estates Act 1983 (NSW) - evidence required for appointment - procedural aspects of obtaining an order - scope of dealings permitted pursuant to an order - FAMILY LAW AND CHILD WELFARE - appointment of manager of the estate of a missing person under Protected Estates Act 1983 (NSW) - evidence required for appointment - procedural aspects of obtaining an order - scope of dealings permitted pursuant to an order - RECEIVERS AND MANAGERS - appointment of manager of the estate of a missing person under Protected Estates Act 1983 (NSW) - evidence required for appointment - procedural aspects of obtaining an order - scope of dealings permitted pursuant to an order - WORDS AND PHRASES - "missing person" - "it is not known whether the person is alive" - "usual place of residence" - "best interests" - "relative" - "all reasonable efforts"

LEGISLATION CITED:
Jurisdiction of Courts (Cross-Vesting) Act 1987
Protected Estates Act 1983
Protected Estates Amendment (Missing Persons) Act 2004
Supreme Court Rules 1970

CASES CITED:
Anson v Anson [2004] NSWSC 766
Re DEF and the Protected Estates Act 1983 [2005] NSWSC 534
Fielden v Ashworth (1875) LR 20 Eq 410
Re Flint [2005] NSWSC 560

PARTIES:
Louise Elizabeth Gell - Applicant
Michael Christopher Gell - Respondent

FILE NUMBER(S):
SC 19/2005

SOLICITORS:
Clayton Utz - Applicant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

CAMPBELL J

16 JUNE 2005

19/05 LOUISE GELL v MICHAEL GELL

JUDGMENT

1 HIS HONOUR: Significant amendments have been made to the Protected Estates Act 1983 (“the PE Act”) by the Protected Estates Amendment (Missing Persons) Act 2004. That latter Act commenced on 17 December 2004. As this is the first application under the amendments made by it to the PE Act it is appropriate to deliver a judgment which considers some of the aspects of the amendment to the PE Act, and amendments to the Supreme Court Rules 1970 which have been made to implement those amendments to the PE Act.

2 The application is one in which I made declarations and orders in chambers on 2 June 2004 after the defendant had not appeared when the matter was listed before the Registrar. I made orders appointing the plaintiff as manager of the estate of the defendant, and certain consequential orders, on the basis that I would deliver reasons later. Since the orders were made, Young CJ in Eq has also made orders in another case under the new provisions and delivered reasons: Re Flint [2005] NSWSC 560.

The Legislative Provisions

3 The PE…

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 Gell v Gell

Details

AGLC: Gell v Gell [2005] NSWSC 566
Case: [2005] NSWSC 566
Decision Date: 16 June 2005

CaseChat Overview and Summary

The case of Gell v Gell arose in the Supreme Court of New South Wales, dealing with the appointment of a manager for the estate of a missing person under the Protected Estates Act 1983 (NSW). The primary parties involved were the applicants and respondents, who were relatives of the missing person. The dispute centred around the evidence required for the appointment of a manager, the procedural aspects of obtaining an order, and the scope of dealings permitted under the order.

The legal issues before the court included determining the threshold of evidence needed to establish that the person was missing and the meaning of key terms such as "missing person," "usual place of residence," and "best interests." Additionally, the court had to consider the procedural requirements for making an order and the extent to which a manager could act under the order, particularly concerning property management and financial dealings.

The court examined the evidence provided and concluded that the applicants had satisfied the requirements under the Act to demonstrate that the person was missing and that all reasonable efforts to locate them had been undertaken. The court interpreted the statutory terms to mean that a missing person is one whose whereabouts are unknown and it is not known whether they are alive. It also found that the usual place of residence and the best interests of relatives were adequately considered. The scope of the manager's authority was deemed sufficient to allow for necessary dealings with the estate, including property management. The court ultimately granted the application for the appointment of a manager.

The court ordered the appointment of a manager for the estate of the missing person, with the manager to have the authority to manage and deal with the estate as permitted under the Protected Estates Act. The decision confirmed the applicants' eligibility to act as the manager and set out the procedural steps for the management of the estate during the person's absence.

Orders