Jo v Ko

[2005] NSWSC 604

CITATION:	JO v KO [2005] NSWSC 604
HEARING DATE(S):	20 June 2005
JUDGMENT DATE :	20 June 2005
JURISDICTION:	Equity Protective List
JUDGMENT OF:	Campbell J
DECISION:	Resignation permitted. New manager appointed.

CATCHWORDS:	MENTAL HEALTH - guardians, committees, administrators, managers and receivers - power of court to permit resignation of private manager of estate of protected person - power of court to appoint another manager when previous manager resigns
LEGISLATION CITED:	Protected Estates Act 1983
PARTIES:	JO - Plaintiff KO - Defendant
FILE NUMBER(S):	SC 53/03
COUNSEL:	J Needham SC - Plaintiff No appearance - Defendant
SOLICITORS:	Elizabeth Fleming & Associates - Plaintiff No appearance - Defendant C Phang - Protective Commissioner

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

CAMPBELL J

20 JUNE 2005

53/03 JO v KO

JUDGMENT – Ex Tempore (Revised 22 June 2005)

1 HIS HONOUR: On 20 October 2003 an order was made declaring that a person, KO, was incapable of managing his affairs, and that his estate be subjected to management under the Protected Estates Act1983 (“PE Act”). The person who was appointed as manager was KO’s father. The application before the Court today is an application by KO’s father seeking an order that his own appointment be revoked, and that another suitable person be appointed as manager. The applicant proposes that that suitable person would be the Protective Commissioner.

2 The applicant has six children besides KO. Both the applicant's wife and all his children support his intention to resign as manager. He has found that, while he has been willing to put in the time which has been involved in the management of his son's affairs, his being in the position of manager has caused tension and friction between his son and himself, and that that has had an impact on other members of the family. He wishes to restore good relations between himself and his son, and hopes to do so by resigning.

3 There is no express power in the PE Act which enables a private manager of the estate of a protected person, once appointed, to resign. However I am satisfied that there is an implied power arising from the Act. That such a power exists can be seen from the structure of the Act. Section 13 makes provision that:

“(1) Where the Court is satisfied that a person is incapable of managing his or her affairs, it may make a declaration to that effect and order that the estate of the person be subject to management under this Act.”

4 The mode in which management of the estates under the Act occurs is pursuant to an order made under section 22, which provides:

“The Court may, by order, appoint a suitable person as manager of the estate of a person in respect of whom it has made an order under section 13 … or may, by such an order, commit the management of the estate of any such person to the Protective Commissioner.”

5 Once a management order is made, the power of the protected person to deal with his own estate is suspended, under section 23A, the relevant part of which provides:

“(1) The power of a protected person to deal with his or her estate is suspended in respect of so much of that estate as is, under this Act or the Guardianship Act1987 , committed to the management of the Protective Commissioner or another person.”

6 When a private manager is appointed, the provisions which confer powers on the private manager are those contained in sections 29 to 33 inclusive. Particularly relevant is section 32(1), which provides:

“(1) The Court may make such orders as appear to it necessary for rendering the property and income of a protected person available for the payment of the debts of, and the maintenance and otherwise for the benefit of, the protected person and the family of the protected person and otherwise as it thinks necessary or desirable for the care and management of the estate of a protected person.”

7 The present situation is one where it is, it seems to me, for the benefit of KO and his family to enable the resignation to occur. I see no reason why the expression “the family of the protected person” ought not extend to the protected person's parents, as well as any spouse or children that the protected person might have. It would, in my view, be for the benefit of both KO, and his broader family, that the present source of tension between KO and his father be resolved. In deciding the existence of the power to permit resignation on this basis, I am not trying to state exhaustively all the circumstances when resignation of a private manager could be justified by section 32(1).

8 Once a resignation is permitted, the power of the Court under section 22 becomes enlivened again. It becomes enlivened by virtue of the declaration and order made under section 13 on 20 October 2003. There is no reason to believe that the power under section 22 is one which can be exercised only once.

9 For these reasons, I am satisfied that the Court has power to accept the resignation of the applicant, and to appoint another suitable person as manager of the estate.

10 For these reasons I shall make orders that the applicant be discharged from the office of manager of the estate of KO, that the management of the estate of KO committed to the Protective Commissioner, that the applicant within twenty-eight days file his final accounts in accordance with the Supreme Court Rules, that the applicant shall within twenty-eight days hand over and transfer the estate of KO to the Protective Commissioner, and for the costs of the applicant to be paid from the estate of KO.

11 I make the order in accordance with the draft orders which I initial with today's date and place with the papers.

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