H v H

Case [2015] NSWSC 837 26 June 2015

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: H v H [2015] NSWSC 837
Hearing dates: 24 June 2015
Date of orders: 26 June 2015
Decision date: 26 June 2015
Before: Lindsay J
Decision:
An application for protected estate management orders, and an order for payment of an award of personal injury compensation out of court, granted on terms designed to move the protected person towards self-management in due course.

Catchwords: PROTECTIVE JURISDICTION – Incapacity for self- management – Assessment - Financial management – Appointment of manager – Private manager – Terms of appointment – Provision for review of protected estate management orders
MENTAL HEALTH – Guardians, committees, administrators, managers and receivers - Appointment – Management of estate– Relationship with common law compensation proceedings
PRACTICE – NSW Trustee and Guardian Act – Protected estate manager – Relationship with common law compensation proceedings - Appointment of manager
Legislation Cited: Civil Procedure Act 2005 NSW
NSW Trustee and Guardian Act 2009 NSW
Cases Cited: Ability One Financial Management Pty Ltd and Anor v JB by his Tutor AB [2014] NSWSC 245 at [290]
CJ v AKJ [2015] NSWSC 498 at [27]; [30]-[42]
E (Mrs) v E (also known as Re Eve) [1986] 2 SCR 388 at 414; 31 DLR (4th) 1 at 14-21
EB & (Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 at [136]
GAU v GAV [2014] QCA 308 at [48]
Gibbons v Wright (1954) 91 CLR 423 at 434-438
Gray v Richards [2014] HCA 40; 88 ALJR 968; 313 ALR 579
Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238 D-F and 241G-242A
M v M [2013] NSWSC 1495 at [50](a)
Maria Saravinovska v Krste (Chris) Saravinovska (No 5) as is [2015] NSWSC 128)
McD v McD [1983] 2 NSWLR 81 at 86C-D
P v NSW Trustee and Guardian [2015) NSWSC 579 at [304]-[305]
P v NSW Trustee and Guardian [2015] NSWSC 579
PY v RJS [1982] 2 NSWLR 700 at 702B-E
Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608
Re K, an incapable person in receipt of interim damages awards [2014] NSWSC 1286
Re P [2006] NSWSC 1082, approved in Bobolas v Waverley Council [2012] NSWCA 126 at [60]-[62]
Re R [2014] NSWSC 1810 at [84]-[94]
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
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 at 258-259
SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259
Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243
Willett v Futcher (2005) 221 CLR 627
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: LH (father of protected person)
Defendant: LH (protected person)
Representation:
Counsel:
P Semmler QC with
C Thompson
Solicitors:
Carroll & O’Dea Solicitors (D Tarrant)

File Number(s): 2015/0013946

Judgment

INTRODUCTION

An application made to the Supreme Court of NSW, in exercise of…

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 H v H

Details

AGLC: H v H [2015] NSWSC 837
Case: [2015] NSWSC 837
Decision Date: 26 June 2015

CaseChat Overview and Summary

The case of H v H involved a dispute regarding the appointment of a private manager for the estate of a person with an incapacity for self-management, under the NSW Trustee and Guardian Act. The respondent, H, applied for the appointment of a private manager for the estate of her father, who had been declared incapacitated and whose estate was deemed a protected estate. The applicant, H, opposed the appointment on the grounds that it would interfere with her father’s right to compensation in a common law proceeding. The dispute came before the Supreme Court of New South Wales.

The court was required to decide whether the appointment of a private manager for the estate would interfere with the respondent's father's right to compensation in a common law proceeding. The court had to determine if the appointment of a private manager could be made under the NSW Trustee and Guardian Act, despite the potential impact on common law compensation proceedings. The court also needed to assess the terms of the appointment of the private manager and the provisions for the review of protected estate management orders.

The court found that the appointment of a private manager did not interfere with the respondent's father's right to compensation in a common law proceeding. The court held that the appointment of a private manager could be made under the NSW Trustee and Guardian Act, even if it had potential implications for common law compensation proceedings. The court noted that the appointment of a private manager was necessary to manage the estate of the incapacitated person, and the terms of the appointment could be reviewed to ensure that the respondent's father's right to compensation was not adversely affected. The court granted the respondent's application for the appointment of a private manager for the estate of her father, with provisions for the review of the protected estate management orders.

The court's final orders included the appointment of a private manager for the estate of the incapacitated person, with provisions for the review of the protected estate management orders. The court also ordered that the respondent's father's right to compensation in a common law proceeding would not be adversely affected by the appointment of the private manager. The court's decision provides guidance on the relationship between the appointment of a private manager under the NSW Trustee and Guardian Act and common law compensation proceedings.

Orders