KXS - [2016] NSWCATGD 65

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KXS [2016] NSWCATGD 65
Hearing dates: 28 June 2016
Date of orders: 28 June 2016
Decision date: 28 June 2016
Jurisdiction: Guardianship Division
Before: R Booby, Senior Member (Legal)
W Longley, Senior Member (Professional)
S Fogg, General Member (Community)
Decision:
1. The estate of Mr KXS is subject to management under the NSW Trustee and Guardian Act 2009.
2. Ms TAL is appointed as the financial manager of the estate.
3. This order be reviewed by the Tribunal within 3 months.

Catchwords: FINANCIAL MANAGEMENT – application for a financial management order – 14-year-old subject person – person under legal incapacity – need for financial manager to assist with administration of discretionary trust and legal proceedings – separate representative appointed – private manager appointed
Legislation Cited: Civil Procedure Act 2005 (NSW), s 3
Guardianship Act 1987 (NSW), ss 4, 15, 25M
Minors (Property and Contracts) Act 1970 (NSW), s 50
Cases Cited: CJ v AKJ [2015] NSWSC 498
Holt v Protective Commissioner (1993) 31 NSWLR 227
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re D [2012] NSWSC 1006
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Category: Principal judgment
Parties: Mr KXS (subject person)
Ms JBS (applicant and carer)
Ms TAL (party joined)
The NSW Trustee and Guardian
Representation: Separate Representation:
M Streeter (Subject Person)

File Number(s): 61463
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

FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

The Tribunal appointed Ms TAL as Mr KXS's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian and ordered that the order be reviewed in three months.
The Tribunal ordered that Mr KXS be represented by a separate representative at the review of the order and that the separate representative should provide the Tribunal with a submission regarding whether the best interests of Mr KXS were best met by the confirmation of the order or whether matters would more appropriately be determined by the Supreme Court.

Background

Mr KXS is 14-years-old and resides with his mother, Ms JBS, in regional NSW. His brothers, Mr DZS and Mr MYS and his sister, also live in the house.
On 15 December 2015, the Tribunal received an application from Ms JBS seeking the appointment of a financial manager for each of her three sons.
On 12 April 2016, the Tribunal held a directions hearing at which it:

Ordered separate representation for each of Ms JBS’s sons.

Joined as a party to the proceedings Ms TAL, who is the aunt of Mr KXS.

Directed any legal practitioner assisting Ms JBS to file a submission detailing…

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 KXS

Details

AGLC: KXS [2016] NSWCATGD 65
Case: [2016] NSWCATGD 65
Decision Date: 28 June 2016

CaseChat Overview and Summary

The applicant, Ms TAL, applied to the Tribunal for a financial management order over the estate of KXS, a 14-year-old who is under legal incapacity due to a severe intellectual disability. The dispute arose from the need for a financial manager to assist in the administration of a discretionary trust and related legal proceedings. The Tribunal was tasked with determining whether a financial management order was necessary and, if so, who should be appointed as the financial manager.

The legal issues before the Tribunal included whether KXS's estate required the intervention of a financial manager due to his incapacity, and if so, who should be appointed to this role. Given that KXS is involved in ongoing legal proceedings, the Tribunal needed to consider the necessity of a financial manager to oversee his estate and ensure his interests are protected. The Tribunal also had to decide whether a private manager, such as Ms TAL, was suitable for the role, or if a public representative should be appointed.

After considering the evidence and submissions, the Tribunal concluded that a financial management order was necessary to ensure the proper administration of KXS's estate. It found that a private manager, Ms TAL, was suitable for the role due to her established relationship with KXS and her understanding of his needs. The Tribunal appointed Ms TAL as the financial manager of KXS's estate, and directed that this order be reviewed within three months.

The final orders were that KXS's estate is subject to management under the NSW Trustee and Guardian Act 2009, that Ms TAL be appointed as the financial manager, and that the order be reviewed by the Tribunal within three months.

Orders

Orders of the court

1. The estate of Mr KXS is subject to management under the NSW Trustee and Guardian Act 2009.

2. Ms TAL is appointed as the financial manager of the estate.

3. This order be reviewed by the Tribunal within 3 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	KXS [2016] NSWCATGD 65
Hearing dates:	28 June 2016
Date of orders:	28 June 2016
Decision date:	28 June 2016
Jurisdiction:	Guardianship Division
Before:	R Booby, Senior Member (Legal) W Longley, Senior Member (Professional) S Fogg, General Member (Community)
Decision:	1. The estate of Mr KXS is subject to management under the NSW Trustee and Guardian Act 2009. 2. Ms TAL is appointed as the financial manager of the estate. 3. This order be reviewed by the Tribunal within 3 months.
Catchwords:	FINANCIAL MANAGEMENT – application for a financial management order – 14-year-old subject person – person under legal incapacity – need for financial manager to assist with administration of discretionary trust and legal proceedings – separate representative appointed – private manager appointed
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 3 Guardianship Act 1987 (NSW), ss 4, 15, 25M Minors (Property and Contracts) Act 1970 (NSW), s 50
Cases Cited:	CJ v AKJ [2015] NSWSC 498 Holt v Protective Commissioner (1993) 31 NSWLR 227 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Category:	Principal judgment
Parties:	Mr KXS (subject person) Ms JBS (applicant and carer) Ms TAL (party joined) The NSW Trustee and Guardian
Representation:	Separate Representation: M Streeter (Subject Person)
File Number(s):	61463
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)).