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 Bruére (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

1. 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.

2. 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.

3. 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.

4. 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 is domiciled:

   (a)personal, geographic proximity of a protected estate manager to a person whose estate is under management, coupled with ready access to the protected person as and when necessary, generally remains desirable; and

   (b)the domicile, or at least regular presence, of a manager within the same jurisdiction as both the person and property of a protected person (in this case, NSW) generally remains a prudent, if not necessary, measure in aid of due management of a protected estate.

5. No question arises in the current proceedings about the nature or reach of the Court's protective jurisdiction. Both the person in need of protection (AS) and his property are within the territorial jurisdiction of the Court: PB v BB [2013] NSWSC 1223 at [30].

6. The defendant (AS) and his wife (TS) are ordinarily resident in a suburb of Sydney, New South Wales. They have three adult children, one of whom (HS) is the plaintiff.

7. The defendant suffered a catastrophic brain injury when he was assaulted, during the course of his employment, in 2005. He has significant and continuing cognitive impairments. He is incapable of managing his financial affairs.

8. He has recently recovered approximately $1 million compensation, for the personal injuries suffered by him in the assault, in proceedings in the Common Law Division of this Court instituted, and conducted, by the plaintiff (HS) acting as his tutor pursuant to the provisions of the Civil Procedure Act 2005 NSW, Part 6 Division 4 (ss 74-80) and the Uniform Civil Procedure Rules 2005 NSW, Part 7 Division 4 (rr 7.13-7.18).

9. At the conclusion of the Common Law proceedings, and in conformity with s 77(2) of the Civil Procedure Act 2005, the compensation recovered on behalf of AS in those proceedings was paid into court.

10. In the current proceedings the plaintiff (HS), with the support of all members of her family, applied for:

    (a)management orders, affecting the estate of the defendant, under the NSW Trustee and Guardian Act 2009, s 41(1); and

    (b)an order, under the Civil Procedure Act, s 77, that the compensation moneys presently in court on the account of the defendant (AS) be paid out to her as manager of his protected estate.

11. Section 41(1) is in the following terms (with emphasis added):

    "41 Orders by Supreme Court for management of affairs

    (1) If the Supreme Court is satisfied that a person is incapable of managing his or her affairs, the Court may:

    (a) declare that the person is incapable of managing his or her affairs and order that the estate of the person be subject to management under this Act, and

    (b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee."

12. I am satisfied that the defendant is, within the meaning of s 41(1)(a), a person who is incapable of managing his affairs. A declaration to that effect, coupled with an order that his estate be subject to management under the NSW Trustee and Guardian Act, is appropriate.

13. But for the fact that she is ordinarily resident outside New South Wales (in Samoa) the plaintiff would be a person "suitable" for appointment as manager of the defendant's estate, within the meaning of s 41(1)(b). Her evidence (which I accept) that she travels to Sydney on a regular basis, to provide support to her family and assistance to her father (the defendant), does not wholly negate the fact that she ordinarily resides out of the jurisdiction, and is geographically distant from the defendant.

14. Upon my initial consideration of her application for appointment as sole manager of the defendant's estate, I formed the view (without any adverse reflection on her character or competency) that the defendant's interests would best be served by the appointment of a locally resident person to act as a co-manager of the defendant's estate with her.

15. The plaintiff, and I infer the family generally, have acquiesced in this. With her consent, the plaintiff proposes her mother (TS) for appointment as her co-manager.

16. This is appropriate. TS is not only the mother of the plaintiff and the wife of the defendant. She is also the defendant's primary carer.

17. Accordingly, on the plaintiff's application and with the consent of TS, I make orders and notations to the following effect:

    (1)DECLARE, pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act 2009 NSW, that the defendant is incapable of managing his affairs.

    (2)ORDER that the estate of the defendant be subject to management under the NSW Trustee and Guardian Act 2009.

    (3)ORDER that the plaintiff and the wife of the defendant ("the managers") be appointed, jointly, as managers of the estate of the defendant subject to the orders and direction of the NSW Trustee.

    (4)ORDER that the managers may not do anything in reliance on their appointment as managers of the estate of the defendant until the NSW Trustee has authorised them to assume management of the defendant's estate.

    (5)ORDER, pursuant to s 68 of the NSW Trustee and Guardian Act, that the managers give such, if any, security in respect of their management of the defendant's estate as the NSW Trustee may determine to be appropriate.

    (6)ORDER that, subject to any further order of the Court or any order or direction of the NSW Trustee, all funds presently held in Court on behalf of the defendant (in relation to the Common Law proceedings) be paid out to the managers, as managers, of the estate of the defendant.

    (7)ORDER that, on the death or discharge of either of the managers, custody of the defendant's estate continue to the remainder of them.

    (8)ORDER that the costs of the plaintiff, her co-manager and the defendant be paid out of the estate of the defendant on the indemnity basis.

    (9)ORDER that all parties may be at liberty to apply as they may be advised.

    (10)ORDER that the plaintiff provide a copy of these orders to:

    (a) her co-manager;
    (b) the defendant; and
    (c) the NSW Trustee.

    **********

Amendments

18 Nov 2014 Renumbering Paragraphs: 17