JMN - [2014] NSWCATGD 24

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: JMN [2014] NSWCATGD 24
Hearing dates: 2 May 2014
Decision date: 02 May 2014
Jurisdiction: Guardianship Division
Before: Moir J, Senior Member (Legal)
Taylor S, Senior Member (Professional)
Koussa K, General Member (Community)
Decision:
Financial management order made; private manager appointed.

Catchwords: FINANCIAL MANAGEMENT - application for financial management order - injury compensation - capability to manage - licensed trustee company proposed as financial manager - remuneration, fees and commission - suitability for appointment.
Legislation Cited: Guardianship Act 1987 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited: Re GHI (a protected person) [2005] NSWSC 581
PY v RJS [1982] 2 NSWLR 700
H v H (unreported) NSW Supreme Court, Young J, 20 March 2000
McD v McD (1983) 3 NSWLR 81
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
Re Managed Estates Remuneration Orders [2014] NSWSC 383
CC v RAM [2012] NSWSC 1555
Category: Principal judgment
Parties: Mrs JMN (subject person)
Ms KTT (applicant)
Mr EUN (spouse)
The NSW Trustee and Guardian
File Number(s): 55878
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

reasons for decision

What the Tribunal decided

The Tribunal appointed Australian Executor Trustees Ltd as Mrs JMN's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

Mrs JMN is a 31-year old woman who lives in the NSW South Coast with her husband, Mr EUN, and their 5-year old twin daughters.

On 18 March 2014 the Tribunal received an application for the appointment of a financial manager for Mrs JMN, from Ms KTT, from a law firm. Ms KTT states that Mrs JMN sustained a brain injury in a motor vehicle accident in Queensland in January 2010. As a result of a compensation claim she has a cash settlement of $1,380,000, which has not yet been released to her. In the meantime, her Centrelink payments have stopped because of the compensation payment.

Ms KTT states that although Mrs JMN had the capacity to give legal instruction, she has been assessed as not being capable of managing this large settlement. Ms KTT expresses concern that Mrs JMN would be vulnerable to exploitation if she is left to manage the money on her own behalf. Ms KTT requests that Australian Executor Trustees Ltd (AET Ltd) be appointed as financial manager, and states that Mrs JMN has met with AET Ltd representatives as well as another trustee company, Perpetual, and has indicated a preference AET Ltd to be appointed.

Conduct of the Hearing

The hearing was conducted in Regional NSW. Mrs JMN and Mr EUN attended in person, and Ms KTT and the representative from AET Ltd participated by telephone.

What did the Tribunal have to decide?

The issues for the Tribunal were:

(1) Is Mrs JMN…

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 JMN

Details

AGLC: JMN [2014] NSWCATGD 24
Case: [2014] NSWCATGD 24
Decision Date: 02 May 2014

CaseChat Overview and Summary

The matter before the court was an application by JMN for a financial management order, which would see a private manager appointed to oversee her financial affairs due to her injury-induced inability to manage her own finances. JMN, who received compensation for her injuries, sought to have a licensed trustee company appointed as her financial manager. The legal issues for the court's determination were whether JMN was incapable of managing her finances and, if so, whether the proposed private manager was suitable and the terms of remuneration were fair and reasonable.

The court held that JMN was indeed incapable of managing her financial affairs due to her injuries. The proposed private manager, a licensed trustee company, was deemed suitable for the role. The court examined the terms of remuneration, considering the fees and commissions proposed, and found them to be reasonable and appropriate given the nature of the services to be provided and the circumstances of the case. The court concluded that the proposed private manager was suitable for appointment as JMN's financial manager and that the terms of remuneration were fair and reasonable.

In light of its findings, the court made a financial management order appointing the private manager as JMN's financial manager. The private manager was authorised to manage JMN's financial affairs in accordance with the terms set out in the court's order.

Orders

Orders of the court

Financial management order made; private manager appointed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	JMN [2014] NSWCATGD 24
Hearing dates:	2 May 2014
Decision date:	02 May 2014
Jurisdiction:	Guardianship Division
Before:	Moir J, Senior Member (Legal) Taylor S, Senior Member (Professional) Koussa K, General Member (Community)
Decision:	Financial management order made; private manager appointed.
Catchwords:	FINANCIAL MANAGEMENT - application for financial management order - injury compensation - capability to manage - licensed trustee company proposed as financial manager - remuneration, fees and commission - suitability for appointment.
Legislation Cited:	Guardianship Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited:	Re GHI (a protected person) [2005] NSWSC 581 PY v RJS [1982] 2 NSWLR 700 H v H (unreported) NSW Supreme Court, Young J, 20 March 2000 McD v McD (1983) 3 NSWLR 81 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 Re Managed Estates Remuneration Orders [2014] NSWSC 383 CC v RAM [2012] NSWSC 1555
Category:	Principal judgment
Parties:	Mrs JMN (subject person) Ms KTT (applicant) Mr EUN (spouse) The NSW Trustee and Guardian
File Number(s):	55878
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).