KJ v SJ - [2020] NSWSC 932

Supreme Court

New South Wales

Medium Neutral Citation: KJ v SJ [2020] NSWSC 932
Hearing dates: 6, 7, 8 and 9 July 2020
Date of orders: 23 July 2020
Decision date: 23 July 2020
Jurisdiction: Equity - Protective List
Before: Williams J
Decision:
Application pursuant to s 86 of the NSW Trustee and Guardian Act 2009 (NSW) (“the Act”) for the revocation of a declaration that the applicant is incapable of managing her own affairs and of orders that the applicant’s estate be subject to management under the Act is dismissed.

Catchwords:
GUARDIANSHIP – protected person – application pursuant to s 86 of the NSW Trustee and Guardian Act 2009 (NSW) (“the Act”) for revocation of a declaration made that the applicant is incapable of managing her affairs and of orders that the applicant’s estate be subject to management under the Act – where applicant suffered a traumatic brain injury in an accident as a child – where applicant received a significant sum of money in a settlement of legal proceedings commenced following the accident – where applicant is presently married, works part–time and is the primary carer of three children – where memory and insight following the accident is and continues to be poor – where applicant suffers from executive dysfunction – where applicant experiences difficulty in managing household and personal finances – application dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 3 and 14
Corporations Act 2001 (Cth), s 601WBA
NSW Trustee and Guardian Act 2009 (NSW) ss 38, 39, 41 and 86
Uniform Civil Procedure Rules 2005 (NSW) rr 7.13, 7.15 and 7.16

Cases Cited:
CJ v AJK [2015] NSWSC 498
IA v TA [2016] NSWCA 179
P v NSW Trustee and Guardian [2015] NSWSC 579
Re D [2012] NSWSC 1006
Re R [2014] NSWSC 1810
Re X [2016] NSWSC 275

Category: Principal judgment
Parties: KJ (Plaintiff/First Respondent)
SJ (Defendant/Applicant)
The Trust Company (Australia) Ltd (Second Respondent)
NSW Trustee and Guardian (Third Respondent)
Perpetual Trustee Company Ltd (Fourth Respondent)
Representation:
Counsel:
Mr C Hickey (Plaintiff/First Respondent)
Mr J A Dalzell AM (Defendant/Applicant)
Mr M K Meek SC (Second and Fourth Respondent)
Ms J Brouwer, solicitor (Third Respondent)
Solicitors:
Boyd House & Partners (Plaintiff/First Respondent)
Austen Brown Boog Solicitors (Defendant/Applicant)
Carrol O’Dea Lawyers (Second and Fourth Respondent)
NSW Trustee and Guardian (Third Respondent)

File Number(s): 2013/217773
Publication restriction: On 6 July 2020, the Court made an order pursuant to s 7 of the Court Suppression and Non–publication Orders Act 2010 (NSW) that the name, previous or current residential address and place of work of SJ and any member of her family (including her husband, children, parents and siblings) not be published without leave of the Court by reason of s 8(1)(a) and/or s 8(1)(e) of that Act.

Judgment

INTRODUCTION

The applicant, who is referred to in this proceeding by the pseudonym “SJ” pursuant to orders made by the Court on 6 July 2020, is a 29 year old married woman with three young children. She…

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 KJ v SJ

Details

AGLC: KJ v SJ [2020] NSWSC 932
Case: [2020] NSWSC 932
Decision Date: 23 July 2020

CaseChat Overview and Summary

The case of KJ v SJ involved an application under the NSW Trustee and Guardian Act 2009 for the revocation of a prior declaration that KJ was incapable of managing her affairs and for orders that her estate be subject to management under the Act. The applicant, KJ, had sustained a traumatic brain injury as a child, which resulted in significant cognitive impairments, including poor memory, limited insight, and executive dysfunction. Despite these challenges, KJ was married, employed part-time, and served as the primary caregiver for her three children. Additionally, she had received a substantial settlement from legal proceedings related to the accident. The court was tasked with determining whether KJ's circumstances had sufficiently improved to warrant the revocation of the prior declaration of incapacity.

The central legal issues before the court were whether KJ's current abilities and circumstances justified revoking the prior declaration of incapacity and whether her estate should continue to be subject to management under the Act. The court had to assess whether KJ's cognitive impairments and difficulties in managing household and personal finances still warranted the intervention of a statutory manager. Furthermore, the court needed to consider the impact of KJ's personal and family responsibilities on her ability to manage her affairs effectively.

In dismissing the application, the court found that while KJ had made some progress, her cognitive impairments and difficulties in managing her finances remained significant. The court concluded that KJ's ability to manage her estate was not sufficiently restored to warrant revocation of the prior declaration. The court emphasised the importance of ensuring that KJ's estate was adequately managed to protect her interests and those of her dependents. Given the complexity of KJ's situation, the court determined that the statutory management of her estate remained necessary.

As a result of the court's decision, the prior declaration that KJ was incapable of managing her affairs and the orders for her estate to be subject to management under the Act were upheld. The court's ruling ensures that KJ's interests are protected and that her estate is managed appropriately, considering her ongoing cognitive challenges.

Orders