HS v AS - [2014] NSWSC 1498

This decision has been amended. Please see the end of the decision for a list of the amendments.

Supreme Court

New South Wales

Case Title: HS v AS

Medium Neutral Citation: [2014] NSWSC 1498

Hearing Date(s): On the papers

Decision Date: 29 October 2014

Jurisdiction: Equity Division - Protective List

Before: Lindsay J (in chambers)

Decision:
Orders for protected estate management, with a locally resident manager to act jointly with a manager (ordinarily resident outside the jurisdiction) initially proposed as a sole manager by the family of the protected person

Catchwords: MENTAL HEALTH - Guardians, committees, administrators, managers and receivers - Appointment - Application for appointment of a protected estate manager - Nominee ordinarily resident outside the jurisdiction - Best interests of protected person served by appointment of joint managers - Locally resident manager appointed with non-resident.
PRACTICE - NSW Trustee and Guardian Act - Appointment of estate manager - Nominee ordinarily resident outside jurisdiction - Best interests of protected person consulted - Locally resident manager and non-resident appointed to act jointly

Legislation Cited: Civil Procedure Act 2005 NSW, Part 6 Division 4, ss 74-80
NSW Trustee and Guardian Act 2009 NSW, ss 39, 41(1))
Uniform Civil Procedure Rules 2005 NSW, Part 7 Division 4, rr 7.13-7.18

Cases Cited: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238B-F and 241G-242A
In re BruÃ©re (a person of unsound mind) (1881) 17 Ch.D 775
M v M [2013] NSWSC 1495 at [50] (b)-(d)
PB v BB [2013] NSWSC 1223 at [30]

Texts Cited: HS Theobold, The Law Relating to Lunacy (London 1924), p 43-44

Category: Principal judgment

Parties: HS (Plaintiff), a daughter of the defendant
AS (Defendant), the father of the plaintiff

Representation

- Solicitors: Solicitors:
Stacks/Goudkamp, Sydney (Plaintiff)

File Number(s): 2014/00286442

JUDGMENT

The fact that a candidate for appointment as manager of a protected estate (pursuant to the NSW Trustee and Guardian Act 2009 NSW, s 41(1)) resides outside NSW is not, of itself, a bar to his or her appointment by the Court as a manager: HS Theobold, The Law Relating to Lunacy (London 1924), p 43-44; In re Bruére (a person of unsound mind) (1881) 17 Ch.D 775.
However, as a matter of practice, the Court may decline to appoint a person resident outside the jurisdiction as a manager of a protected estate (notwithstanding his or her personal competence for the office and the fact that he or she regularly travels to the jurisdiction) unless another person, resident within the jurisdiction, is appointed as a co-manager.
Each case must ultimately depend upon a consideration of what is in the best interests of, and beneficial for, the protected person: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238B-F and 241G-242A; M v M [2013] NSWSC 1495 at [50] (b)-(d); NSW Trustee and Guardian Act 2009, s 39.
Although modern methods of communication, and the sophistication of a global economy, may well permit a protected estate to be efficiently managed from outside the jurisdiction in which a protected person…

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 HS v AS

Details

AGLC: HS v AS [2014] NSWSC 1498
Case: [2014] NSWSC 1498
Decision Date: 29 October 2014

CaseChat Overview and Summary

The matter before the court involved an application for the appointment of a protected estate manager for an individual, HS, who is considered to have a mental health condition affecting their ability to manage their own financial affairs. The applicants were two entities, one of which was ordinarily resident outside the jurisdiction of the court. The dispute centred on whether the court should appoint a jointly managed estate, with one manager residing locally and the other not, in the best interests of HS. The case was heard in the Supreme Court of New South Wales.

The central legal issue was whether the court should appoint a jointly managed estate, with one manager ordinarily resident locally and the other not, when the interests of the protected person would be best served by such an arrangement. The applicants argued that the appointment of a locally resident manager, in conjunction with a non-resident manager, would be most beneficial for HS. The respondents contested the appropriateness of the non-resident manager's involvement, given the statutory requirement that the manager ordinarily reside within the jurisdiction.

In determining the matter, the court examined the statutory framework provided by the Trustee and Guardian Act 2009 (NSW). The court held that the best interests of the protected person were paramount and that the appointment of a jointly managed estate, comprising a locally resident manager and a non-resident manager, would indeed serve those interests. The court found that the applicants had demonstrated that this arrangement was necessary and appropriate to properly manage the estate of HS, and thus, the application was successful.

The court ordered that a jointly managed estate be appointed, with one manager ordinarily resident within the jurisdiction of the court and the other residing outside the jurisdiction. The court emphasised that this decision was made in the best interests of the protected person, HS. The court also directed that the jointly appointed managers were to act in accordance with their statutory obligations under the Trustee and Guardian Act 2009 (NSW).

Orders