LGT - [2019] NSWCATGD 9

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: LGT [2019] NSWCATGD 9
Hearing dates: 10 January 2019
Date of orders: 10 January 2019
Decision date: 10 January 2019
Jurisdiction: Guardianship Division
Before: J S Currie, Senior Member (Legal)
Decision:
The financial management order made on 21 November 2006 is revoked from 10 January 2019. NSW Trustee and Guardian is to pay over or hand over the estate to LGT.

Catchwords: FINANCIAL MANAGEMENT – application to review or revoke financial management order – whether subject person has regained capacity to manage their affairs – subject person demonstrates awareness of financial position, assets and risks – availability of family and other support – finding of regained capacity – order revoked.
Legislation Cited: Guardianship Act 1987 (NSW), ss 4(a), s 25P(1)–(2)
NSW Trustee and Guardian Act 2005 (NSW), s 39(a)
Cases Cited: CJ v AKJ [2015] NSWSC 498
GW v Protective Commissioner & Ors [2003] NSW ADTAP 51
H v H [2015] NSW SC 837
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106
Texts Cited: Nil
Category: Principal judgment
Parties:
002: Review or Revoke Financial Management Order
LGT (subject person, applicant)
NSW Trustee and Guardian (appointed financial manager)
MFT (spouse)
Representation: Nil

File Number(s): NCAT 2006/00370238
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

APPLICATION TO REVIEW OR REVOKE FINANCIAL MANAGEMENT ORDER

Background

LGT, aged 47 years at the time of the hearing, presently lives with her fiancé MFT, with whom she has had a long-term relationship, in rented accommodation in a town on the South Coast of New South Wales.
On 21 November 2006 the Guardianship Tribunal made a financial management order for LGT, under which the management of her estate was committed to the Protective Commissioner, whose functions are now undertaken by NSW Trustee and the Guardian. At that time the Tribunal accepted medical evidence to the effect that LGT had a moderately severe recurrent depressive illness and dependent personality disorder, first diagnosed in 1999.
On 19 October 2018 the Tribunal received from LGT an application seeking a review or revocation of her financial management order. The application sought revocation of the order on two grounds; firstly, that LGT had regained the capability to manage her own affairs and secondly, in the alternative, that it would be in her best interests for the order to be revoked.
The purpose of these proceedings at Sydney was to conduct a hearing of LGT’s application. I had to decide whether the financial management order should be revoked on either of the grounds stated by LGT in her application and, if the order were not to be revoked, whether it should be varied.
I decided that the order…

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.

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Details

AGLC: LGT [2019] NSWCATGD 9
Case: [2019] NSWCATGD 9
Decision Date: 10 January 2019

CaseChat Overview and Summary

The parties involved in this case were LGT and the NSW Trustee and Guardian, with the subject person's capacity to manage their own financial affairs being the focal point of the dispute. The matter was heard in the Supreme Court of New South Wales. The court was asked to determine whether the subject person had regained the capacity to manage their own affairs and, if so, whether the financial management order should be revoked.

The legal issues at the heart of this case centred around the assessment of the subject person's capacity to manage their own affairs and the availability of family and other support to assist in that process. The court had to consider whether the subject person had demonstrated a sufficient awareness of their financial position, assets and risks, and whether this, coupled with the support available to them, was sufficient to justify the revocation of the financial management order.

In reaching its decision, the court found that the subject person had indeed regained the capacity to manage their own affairs. The court noted the subject person's awareness of their financial position, assets and risks, as well as the availability of family and other support to assist them. As a result, the court was satisfied that the subject person was now able to manage their own affairs and revoked the financial management order accordingly. The court ordered that the NSW Trustee and Guardian was to pay over or hand over the estate to LGT.

Orders

Orders of the court

The financial management order made on 21 November 2006 is revoked from 10 January 2019. NSW Trustee and Guardian is to pay over or hand over the estate to LGT.

Background

Background to the litigation

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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:	LGT [2019] NSWCATGD 9
Hearing dates:	10 January 2019
Date of orders:	10 January 2019
Decision date:	10 January 2019
Jurisdiction:	Guardianship Division
Before:	J S Currie, Senior Member (Legal)
Decision:	The financial management order made on 21 November 2006 is revoked from 10 January 2019. NSW Trustee and Guardian is to pay over or hand over the estate to LGT.
Catchwords:	FINANCIAL MANAGEMENT – application to review or revoke financial management order – whether subject person has regained capacity to manage their affairs – subject person demonstrates awareness of financial position, assets and risks – availability of family and other support – finding of regained capacity – order revoked.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4(a), s 25P(1)–(2) NSW Trustee and Guardian Act 2005 (NSW), s 39(a)
Cases Cited:	CJ v AKJ [2015] NSWSC 498 GW v Protective Commissioner & Ors [2003] NSW ADTAP 51 H v H [2015] NSW SC 837 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106
Texts Cited:	Nil
Category:	Principal judgment
Parties:	002: Review or Revoke Financial Management Order LGT (subject person, applicant) NSW Trustee and Guardian (appointed financial manager) MFT (spouse)
Representation:	Nil
File Number(s):	NCAT 2006/00370238
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)).