L v L - [2014] NSWSC 1686

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: L v L [2014] NSWSC 1686
Hearing dates: 26 November 2014
Decision date: 27 November 2014
Jurisdiction: Equity Division - Protective List
Before: Lindsay J
Decision:
Orders for the appointment of a receiver and manager of a protected estate, and for the family of the protected person to engage in a mediation

Catchwords: GUARDIANSHIP - Protected person - Financial Management - Appointment of receiver and manager of protected estate
Legislation Cited: Civil Procedure Act 2005 NSW Conveyancing Act
Guardianship Act 1987 NSW,
NSW Trustee and Guardian Act 2009 NSW
Cases Cited: Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 at [151]-[153]
Griffin v Union Trustee Co of Australia Limited (1947) 48 SR (NSW) 360 at 363; 65 WN (NSW) 5 at 7
Holt v Protective Commissioner (1993) 31 NSWLR 227
JMK v RDC and PTO v WDO [2013] NSW SC 1362 at [55]-[56])
M v M [2013] NSWSC 1495 at [50]
Protective Commissioner v D (2004) 60 NSWLR 513 at 540-542, 543 and 544
Re DJR and the Mental Health Act 1958 [1983] 1 NSWLR 557 at 564E-G
Re S and the Mental Health Act 1958 [1984] 3 NSWLR 341 at 343-344
Scott v Scott [2012] NSWSC 1541; 7 ASTLR 299 at [287]
Secretary, Department of Family and Community Services v K [2014] NSWSCC 1065 at 67
Texts Cited: HS Theobold, The Law Relating to Lunacy (Stevens & Sons, London, 1924)
Category: Principal judgment
Parties: Plaintiff: Son of protected person
First Defendant: Daughter/Financial Manager of protected person
Second Defendant: Son/Financial Manager of protected person
Third Defendant: Protected person
Representation: Counsel:
Plaintiff: KM Morrissey
First & Second Defendants: K Rees SC with N Kabilafkas
Third Defendant: SF Hughes
Solicitors:
Plaintiff: GHS Legal
First & Second Defendants: Jonathan D'Arcy & Co
Third Defendant: Geikie Clarke Bellantonio

File Number(s): 2013/00142185

Judgment

The parties to these proceedings are members of the one family.

The principal parties (namely, the plaintiff, the first defendant and the second defendant) are siblings, each of mature age. The first defendant's husband has been joined as a cross claimant but, for the present, his position does not require separate elaboration.

The third defendant is the mother of the principal parties. They are her only children. For convenience, and with no disrespect intended, I refer to them from time to time as "the children".

The third defendant was born in 1921 and is presently aged 93 years. Her husband (the father of her children), the patriarch of the family, died in 1997.

The third defendant (the family matriarch) now lives, comfortably, in a nursing home. All parties agree that she is best cared for there, that she is incapable of managing her own affairs or living independently and that she lacks the mental capacity to transact business. She is a "protected person" within the meaning of the Guardianship Act 1987 NSW, s 25D and the NSW Trustee and Guardian Act 2009…

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 L v L

Details

AGLC: L v L [2014] NSWSC 1686
Case: [2014] NSWSC 1686
Decision Date: 27 November 2014

CaseChat Overview and Summary

The case of L v L involved a dispute over the financial management of a protected person's estate. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining whether the appointment of a receiver and manager of the protected person's estate was appropriate, given the circumstances of the case.

The primary legal issue before the court was whether the protected person, who was a vulnerable individual, required the intervention of a receiver and manager to manage their financial affairs. The court had to consider the principles and objectives of guardianship law, which are designed to protect the interests of the protected person while also respecting their autonomy as much as possible. The court had to balance the need for financial oversight with the protected person's right to make decisions about their own affairs.

The court found that the protected person's financial situation was complex and required careful management to prevent potential exploitation and ensure the proper use of their resources. The court appointed a receiver and manager, reasoning that this was necessary to protect the protected person's interests and to provide the necessary oversight to manage the estate effectively. The court emphasised that the appointment was not a reflection on the protected person's ability to manage their own affairs but rather a measure to safeguard their interests in light of their vulnerability.

The final orders included the appointment of a receiver and manager to oversee the financial management of the protected person's estate, with specific directions given to ensure that the protected person's interests were protected and that their autonomy was respected to the greatest extent possible. The court also directed that regular reports be made to the court to monitor the situation and make any necessary adjustments.

Orders