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Iskandar v Mahbur

Iskandar v Mahbur

Case [2015] NSWSC 82 12 February 2015

Standing

Revocation of Orders

Jurisdiction

Civil Litigation & Procedure

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Supreme Court

New South Wales

Case Name:	Iskandar v Mahbur & Ors
Medium Neutral Citation:	[2015] NSWSC 82
Hearing Date(s):	12 February 2015
Date of Orders:	12 February 2015
Decision Date:	12 February 2015
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:	See paragraph [36] of judgment.
Catchwords:	PROCEDURE - revocation of orders by the Court - NSW Trustee and Guardian seeks an order revoking orders the Court made on 15 February 2012, appointing a financial manager to the affairs of the third defendant - whether a declaration that the defendant is incapable of managing his own financial affairs should be revoked - the proceedings are due to be finalised at a hearing on 25 February 2015 - whether the financial management orders should be revoked now.
Legislation Cited:	NSW Trustee and Guardian Act (2009), ss 39, 41 and 86
Cases Cited:	Iskandar v Mahbur & Ors (No 6) (Slattery J, 15 February 2012, unreported) Iskandar v Mahbur & Ors [2013] NSWSC 239 Re C [2012] NSWSC 1097 Re Q (Young J, 29 May 1985, unreported) Re R [2014] NSWSC 1810 Re W and L [2014] NSWSC 1106
Category:	Procedural and other rulings
Parties:	Plaintiff: Hazairin Iskandar First Defendant: Zulfikri Mahbur Second Defendant: Aminah Theglory Third Defendant: T
Representation:	Solicitors: Plaintiff: S.A. Lawrence, Sylvester & Browne Associates (for Archbold Legal) Third Defendant: Christopher Zucker, Zucker Legal (for New South Wales Trustee and Guardian)
File Number(s):	2010/122386
Publication Restriction:	No

EX TEMPORE JUDGMENT

In these proceedings, the NSW Trustee and Guardian (the NSW Trustee) seeks orders revoking financial management and other orders the Court made on 15 February 2012 in respect of the actual or contingent assets of the third defendant (who is referred to only as “T” in these reasons for publication) arising out of these proceedings.
The Court's reasons for making those orders are set out in my judgment of 15 February 2012, Iskandar v Mahbur & Ors (No. 6) (Slattery J, 15 February 2012, unreported).
Since the Court made those orders much has happened. The principal proceedings that the plaintiff brought for relief were resolved before Bergin CJ in Equity in a hearing on 11, 12, 13, 14, 15, 18 and 27 February 2013; 6 March 2013. Her Honour gave judgment on 26 March 2013: Iskandar v Mahbur & Ors [2013] NSWSC 239. In her Honour's judgment the plaintiff's statement of claim was dismissed. The second and third defendants were successful. Formal orders were entered on 23 May 2013.
The underlying proceedings were for the specific performance of an agreement concerning the sale of a taxi which was said to have been sold by the plaintiff to the second defendant to the plaintiff pursuant to a deed of agreement dated 5 May 2010. The second defendant is the spouse or de facto partner of the third defendant. Mr Mahbur is the plaintiff's brother.

The NSW Trustee’s Motion

The motion before the Court seeks orders:
(1)Order that the declaration made on 15 February 2012 that the third defendant is…

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 Iskandar v Mahbur

Details

AGLC: Iskandar v Mahbur [2015] NSWSC 82
Case: [2015] NSWSC 82
Decision Date: 12 February 2015

CaseChat Overview and Summary

The matter of Iskandar v Mahbur involved the NSW Trustee and Guardian seeking to revoke certain orders previously made by the Court on 15 February 2012. These orders had appointed a financial manager to oversee the financial affairs of the third defendant. The central issue was whether the declaration regarding the defendant's incapacity to manage his own financial affairs should be rescinded. The proceedings were scheduled to conclude with a hearing on 25 February 2015, raising the question of whether the financial management orders should be revoked immediately prior to that date.

The court had to assess the current circumstances of the third defendant to determine if there had been a change in his capacity to manage his financial affairs since the original orders were made. This involved evaluating any evidence presented by the parties, including expert opinions and updated financial assessments, to ascertain the defendant's ability to handle his finances independently. The court's decision hinged on whether the evidence supported a conclusion that the defendant's circumstances had significantly changed, thereby justifying a revocation of the existing orders.

In its reasoning, the court found that the evidence did not substantiate a change in the defendant's financial management capabilities. The defendant's ongoing incapacity to manage his financial affairs was affirmed by the presented evidence, leading to the conclusion that the orders should not be revoked. The court was mindful of the need to protect the defendant's interests, ensuring that he continued to receive the necessary support in managing his financial matters. Therefore, the application to revoke the financial management orders was dismissed.

The court's final orders confirmed the continuation of the financial management arrangements as previously established, with no immediate revocation of the orders in place. The decision underscored the importance of carefully considering the evidence and the best interests of the individual when making such critical determinations.

Orders