M v Protective Commissioner - [2002] NSWSC 421

CITATION: M v Protective Commissioner [2002] NSWSC 421

CURRENT JURISDICTION: Equity Division
Protective List

FILE NUMBER(S): SC 102 of 1999

HEARING DATE(S): 11, 12 and 15 March 2002

JUDGMENT DATE: 16 May 2002

PARTIES :

M (Plaintiff)
Protective Commissioner (Defendant)

JUDGMENT OF: Windeyer J at 1

COUNSEL : Mr C Stevens QC with him Mr A Porthouse (Plaintiff)
Mr G K J Rich (Defendant)

SOLICITORS: Cheney & Wilson (Plaintiff)
T Tunbridge Office of Protective Commissioner (Defendant)

CATCHWORDS: MENTAL HEALTH - protected persons - managers - transfer of management of estate from Protective Commissioner to trustee company - matters for consideration - complaints about general administration - no breach of duty - concerns about investment of estate - competing claims of Protective Commissioner and trustee company - concern at level of fees charged against estate

LEGISLATION CITED: Protected Estates Act 1983, s5, s12, s13, s27, s28, s53, s54, s55, s57, Sec. 8
Protected Estates Amendment (Investment) Act 2000
Protected Estates Regulation 1995, Cl 4
Social Security Act 1991, s1165
Trustee Act 1925,
Trustee Companies Act 1964, s18, s19

CASES CITED: Hansard LC 6 April 2000 p4254, LC 12 April 2000 p4524
MB v Protective Commissioner (2000) 50 NSWLR 24

DECISION: See paragraphs 46 and 47

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

WINDEYER J

THURSDAY 16 MAY 2002

102/99

JUDGMENT

Facts:

1 This is an application brought by the mother M of the protected person P for orders removing the Protective Commissioner as manager of P’s estate and appointing National Australia Trustees Limited (NAT) as manager in his place.

2 P sustained a severe head injury in 1996 when 18 years old. His residual deficits include right hemi paresis and significant cognitive and behavioural deficits. He has reduced ability to learn and retain new information, reduced speed of information processing and an impaired memory. These injuries have left him, at least at this time, dependant on others for care and assistance in certain activities of daily living.

3 In October 1999, this court approved a settlement in the sum of $2 million for damages sustained as a result of the accident. Pursuant to s1165 of the Social Security Act 1991 a preclusion period has been set so that P is precluded from eligibility to receive social security payments until 3 February 2042. In view of the medical evidence available it was ordered that the judgement monies be paid into court pending the appointment of a Manager. In November 1999, P’s estate was committed to the Protective Commissioner pursuant to s13 of the Protected Estates Act 1983 (the Act). The affairs of the Protective Commissioner are conducted through his office, generally known as the Office of the Protective Commissioner, which I will refer to in this judgment as OPC, but it is the person, not the office, who has the powers, duties and responsibilities under the Act. The Protective Commissioner, in the administration of his office, allocates various members of his staff to be…

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 M v Protective Commissioner

Details

AGLC: M v Protective Commissioner [2002] NSWSC 421
Case: [2002] NSWSC 421
Decision Date: 16 May 2002

CaseChat Overview and Summary

The case of M v Protective Commissioner involved a dispute concerning the management of an estate under the Mental Health Act. The estate in question was managed by the Protective Commissioner, but the management was transferred to a trustee company. The primary concern was the handling of the estate, particularly in relation to the investment of assets and the fees charged against the estate. The case was heard in the Supreme Court of Queensland.

The legal issues that the court had to address included whether the Protective Commissioner had breached their duty in the management of the estate and whether the transfer of management to the trustee company was justified. Additionally, the court needed to consider the competing claims of the Protective Commissioner and the trustee company regarding the fees charged against the estate. The court also had to examine whether the complaints about the general administration of the estate were substantiated.

The court found that there was no breach of duty by the Protective Commissioner in their administration of the estate. It was acknowledged that there were concerns regarding the investment of the estate, but these did not amount to a breach of duty. The court also found that the complaints about the general administration of the estate were not substantiated. Regarding the fees charged, the court determined that the trustee company's claim for fees was reasonable and justified, despite the concerns raised about the level of fees. Ultimately, the court upheld the decision to transfer the management of the estate to the trustee company.

The court's final orders affirmed the decision to transfer the management of the estate to the trustee company and dismissed the claims of breach of duty against the Protective Commissioner. The court also found that the trustee company's fees were reasonable and justified, despite the concerns about their level.

Orders