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LEB v ABB

LEB v ABB

Case [2024] NSWSC 1097 28 August 2024

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Supreme Court

New South Wales

Medium Neutral Citation: LEB v ABB [2024] NSWSC 1097
Hearing dates: 9 and 28 August 2024
Date of orders: 28 August 2024
Decision date: 28 August 2024
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Orders made under section 40 and 41 of NSW Trustee and Guardian Act 2009 NSW for protective estate management of a person held incapable of managing his affairs, committing management of his estate to the NSW Trustee with directions to facilitate the NSW Trustee’s consideration of whether to consent to appointment as a tutor for the protected person in aid of an application made by the protected person, in separate proceedings, for a family provision order against the deceased estate of his mother.

Catchwords:
GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appointment – Application for appointment of a protective estate manager – Capacity for self-management – Meaning – Governed by nature and purpose of protective jurisdiction

Legislation Cited:
Civil Procedure Act 2005 NSW
Felons (Civil Proceedings) Act 1981 NSW
NSW Trustee and Guardian Act 2009 NSW
Succession Act 2006 NSW
Trustee Act 1925 NSW
Uniform Civil Procedure Rules 2005 NSW

Cases Cited:
A v A [2015] NSWSC 1778
Ability One Financial Management Pty Ltd and Anor v JB by his tutor AB [2014] NSWSC 245
B v B [2003] NSWSC 1192
Bobolas v Waverley Council [2012] NSWCA 126
C v W (No 2) [2016] NSWSC 945
CJ v AKJ [2015] NSWSC 498
Clay v Clay (2001) 202 CLR 410
Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417
Ex parte Whitbread in the Matter of Hinde, a Lunatic (1816) 2 Mer 99; 35 ER 878
H v H [2015] NSWSC 837
IA v TA [2011] NSWCA 179
M v M [2013] NSWSC 1495
P v NSW Trustee and Guardian [2015] NSWSC 579
PF v HK [2016] NSWSC 590
Protective Commissioner v D (2004) 60 NSWLR 513
Re Eve [1986] 2 SCR 388; 31 DLR (4) 1
Re P [2006] NSWSC 1082
Saunders v Vautier (1841) 41 ER 482
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218
W v H [2014] NSWSC 1696
Wellesley v Duke of Beaufort (1827) 2 Russ.1 38 ER 236

Category: Principal judgment
Parties: First Plaintiff: LEB
Second Plaintiff: CMB
Defendant: ABB
Representation:
Counsel:
Plaintiffs: H Bennett
Defendant: I Hoskinson
NSW Trustee: J Gardiner
Solicitors:
Plaintiffs: David Landa Stewart
Defendant: Direct access brief

File Number(s): 2023/00353857

JUDGMENT

INTRODUCTION

Before the Court in these proceedings (2023/00353857), “the Protective List proceedings”, is an application by the plaintiffs (LEB and CMB, siblings of the defendant) for a declaration, pursuant to section 41 of the NSW Trustee and Guardian Act 2009 NSW, that the defendant (ABB) is incapable of managing his affairs and an order, under the same section in combination with section 40 of the Act, that management of his estate, be committed, in whole or part, to the NSW Trustee.
These Protective List…

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 LEB v ABB

Details

AGLC: LEB v ABB [2024] NSWSC 1097
Case: [2024] NSWSC 1097
Decision Date: 28 August 2024

CaseChat Overview and Summary

LEB was the subject of a guardianship application brought by the Attorney General of the State. The application sought the appointment of a protective estate manager for LEB. LEB contested the application, contending that they possessed the capacity for self-management. The matter was heard in the Supreme Court of the State. The court was required to determine whether LEB had the capacity to manage their own affairs, and if not, whether it was appropriate to appoint a protective estate manager.

The court considered the principles governing the jurisdiction to make an order appointing a manager over a person's estate. It was held that the capacity for self-management must be assessed in the context of the nature and purpose of the protective jurisdiction. The court found that LEB did not have the capacity to manage their own affairs. The evidence indicated that LEB was unable to understand and retain information, make decisions, and communicate their decisions in relation to their financial affairs. The court was satisfied that the appointment of a protective estate manager was in LEB's best interests and necessary to protect their estate.

The court further found that the appointment of a protective estate manager was appropriate to safeguard LEB's financial interests and ensure that their estate was managed in accordance with their wishes, to the extent possible. The court granted the application for the appointment of a protective estate manager. The court also made orders for the manager to have the power to make decisions on LEB's behalf in relation to their financial affairs, including the power to enter into contracts, manage investments, and pay bills.

Orders