JMK v RDC and PTO v WDO - [2013] NSWSC 1362

Supreme Court

New South Wales

Medium Neutral Citation: JMK v RDC and PTO v WDO [2013] NSWSC 1362
Hearing dates: 19 September 2013
Decision date: 19 September 2013
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
1. Declarations and Orders made under s 41(1)(a) of the NSW Trustee and Guardian Act 2009 NSW.
2. Reservation of applications for the appointment of a private manager of the estate of each protected person, pursuant to s 41(1)(b) of the Act, for further consideration.
3. Orders for appointment of the NSW Trustee as receiver and manager of each protected estate pending consideration of questions arising from GDR v EKR [2012] NSWSC 1543.

Catchwords:
GUARDIANSHIP - protected person - Financial management - appointment of manager - Private manager - terms of appointment - Remuneration- regulatory regime - interlocutory orders pending consideration of terms of appointment - appointment of NSW Trustee as interim receiver and manager.

MENTAL HEALTH - protected person - appointment of manager of estate - Private manager - remuneration - regulatory regime - interlocutory orders pending consideration of terms of appointment - appointment of NSW Trustee as interim receiver and manager
PRACTICE - NSW Trustee and Guardian Act - protected person - appointment of manager of estate - private manager - terms of appointment - remuneration - regulatory regime - interlocutory orders pending consideration of terms of appointment - appointment of NSW Trustee as interim receiver and manager
Legislation Cited: NSW Trustee and Guardian Act 2009 NSW
Protected Estates Act 1983 NSW
Uniform Civil Procedure Rules 2005 NSW r 57.7(2)
Trustee Companies Act 1964 NSW Corporations Act 2001 (Cth) 601RAA and 601RAB(1)(b)
Supreme Court Act 1970 NSW
Civil Procedure Act 2005 NSW
Cases Cited: PB v BB [2013] NSWSC 1223 at [2]-[10], [27]-[29] and [38]-[60]
David by his Tutor the Protective Commissioner v David (1993) 30 NSWLR 417 at 436F-437B
GDR v EKR [2012] NSWSC 1543
GNM v ER [1983] 1 NSWLR 144 at 148C-149D
JJK v APK (1986) Australian Torts Reports 80-042 at 67,881-67,882
Gell v Gell (2005) 63 NSWLR 547 at 553[21]), careful
Ex-parte Fletcher (1801) 6 Ves Jun 427; 31 ER 1127
Re Walker, a Lunatic (1848) 2 Phil 630; 41 ER 1097
Re Westbrooke (1848) 2 Phil 631; 41 ER 1087; G v B (Powell J, 27 May 1992) BC 9201855 at 13
Anson v Anson [2004] NSWSC 766; 12 BPR 22,303 at [76]
Ex-parte Warren (1805) 10 Ves Jun 622
32 ER 985 at 986
Holt v Protective Commissioner (1993) 31 NSWLR 227 at 242B-243F
CC v RAM [2012] NSWSC 1555
Texts Cited: HS Theobald, The Law Relating to Lunacy (Stevens & Sons, London, 1924), pp 54, 401-403 and 511-513
LI Rotman, Fiduciary Law Thomson, Canada, 2005 at pp 56-66, 303-305, 318, 339-340, 343, 736-738 and 747-748
Category: Principal judgment
Parties: JMK v RDC; and
PTO v WDO
Representation:
Counsel:
For the plaintiff in JMK v RDC: Michael Levenson (of Matthews Folbigg)

For the plaintiff in PTO v WDO: George Bordon (of Steve Masselos…

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.

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Details

Case: [2013] NSWSC 1362
Decision Date: 19 September 2013

CaseChat Overview and Summary

The case of JMK v RDC and PTO v WDO involved two separate applications brought under the NSW Trustee and Guardian Act 2009. The applicants, JMK and PTO, sought the appointment of a manager to handle the financial affairs of their respective protected persons, RDC and WDO, who were deemed unable to manage their own affairs due to mental health issues. The primary dispute centred around the terms of the appointment of a private manager and the remuneration to be paid to such a manager. The Court of Appeal heard the applications.

The legal issues the court had to address were whether the court had the authority to make interlocutory orders pending the consideration of the terms of appointment for the private manager, and whether it was appropriate to appoint the New South Wales Trustee and Guardian as the interim receiver and manager. The court had to consider the interplay between the statutory provisions and the need to protect the interests of the protected persons while ensuring that the private manager was adequately remunerated.

In its judgment, the court held that it had the jurisdiction to make interlocutory orders to facilitate the appointment of a private manager. The court recognised that it was essential to balance the interests of the protected persons with the need to ensure that the private manager was appropriately compensated. The court found that the statutory framework allowed for such interim measures to be taken, and that appointing the New South Wales Trustee and Guardian as the interim receiver and manager was a prudent course of action to safeguard the interests of the protected persons until a final decision on the terms of appointment was made. The court's decision was based on a careful interpretation of the statutory provisions and a consideration of the practicalities involved in managing the financial affairs of incapacitated individuals.

The court ordered that the New South Wales Trustee and Guardian be appointed as the interim receiver and manager for the protected persons' estates. The court directed that this appointment would remain in effect until the terms of appointment for the private manager were finalised. This decision ensured that the protected persons' interests were protected while the court considered the appropriate terms for the private manager's appointment and remuneration.

Orders