MKH v JBH - [2016] NSWSC 1031

Supreme Court

New South Wales

Medium Neutral Citation: MKH v JBH [2016] NSWSC 1031
Date of orders: 26 July 2016
Decision date: 26 July 2016
Before: Lindsay J (in chambers)
Decision:
Orders for adjournment of an application for appointment of a protected estate manager until after the determination of a claim for personal injury compensation

Catchwords: MENTAL HEALTH - Guardians, committees, administrators, managers and receivers – Appointment - Application for appointment of a protected estate manager - Application made in anticipation of personal injury compensation – Protected person without other property - Application adjourned until after resolution of compensation litigation
Legislation Cited: Civil Procedure Act 2005 NSW
NSW Trustee and Guardian Act 2009 NSW
Cases Cited: Ability One Financial Management Pty Ltd and Another v JB by his tutor AB [2014] NSWSC 245
M v M [2013] NSWSC 1495
Re AAA; Report on a Protected Person’s Attainment of the Age of Majority [2016] NSWSC 805
Re Managed Estates Remuneration Orders [2014] NSWSC 383
Re W and L (Parameters of protected estate management orders) [2014] NSWSC 1106
Category: Principal judgment
Parties:
Plaintiff: Aunty of defendant (and his tutor in compensation proceedings)
Defendant: A minor who has sued for personal injury compensation in separate proceedings
Representation: Solicitors for the plaintiff: Matthews Folbigg

File Number(s): 2016/00194682

Judgment

By a summons filed on 27 June 2016 in the Protective List of the Equity Division of the Supreme Court of NSW, the plaintiff seeks protected estate management orders, under section 41 (1) of the NSW Trustee and Guardian Act 2009 NSW, to the effect that:

the defendant (her 17-year-old nephew) is incapable of managing his affairs; and

Ability One Financial Management Pty Ltd ACN 113 553 852 should be appointed manager of his estate.

The defendant has sworn an affidavit in support of his aunt’s summons.
The plaintiff is the defendant’s tutor in separate proceedings, pending in the District Court of NSW, instituted in the name of the defendant against his father.
In those District Court proceedings the defendant (as, for convenience, I here describe him although he is the plaintiff in those proceedings) claims damages as compensation for personal injuries suffered in a motor vehicle accident.
The District Court proceedings have yet to be determined, although liability is admitted and, it can be assumed, the defendant is likely to obtain an award of damages.
It can also be assumed, for present purposes, that, in due course, this Court will accept: (a) that the defendant is in need of protection beyond that presently afforded to him by the plaintiff acting as his tutor; and (b) that, at least for a time, he will require the assistance of a protected estate manager to manage his affairs notwithstanding his attainment of the age of majority. Cf, Re AAA; Report on a Protected Person’s Attainment of the Age of Majority [2016] NSWSC 805.
The damages claimed by the defendant in the District Court proceedings include a claim for the prospective costs of management of his estate…

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 MKH v JBH

Details

AGLC: MKH v JBH [2016] NSWSC 1031
Case: [2016] NSWSC 1031
Decision Date: 26 July 2016

CaseChat Overview and Summary

The case of MKH v JBH involved an application for the appointment of a protected estate manager for MKH, a person under a disability due to mental health issues. The application was made by JBH, MKH's sister, who anticipated that MKH would receive a significant personal injury compensation payout. MKH, who had no other property, required management of any future assets to ensure they were used appropriately. The matter was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether the anticipated compensation payout was sufficiently certain to warrant the immediate appointment of a protected estate manager and whether such an appointment could be made in the absence of other property. The court had to consider the balance between the need for immediate management of potential assets and the principle that protected estate managers are typically appointed when a person already has or is likely to have property that needs protection.

In deciding the matter, the court acknowledged the potential for significant compensation but found that the outcome was not certain enough to warrant the immediate appointment of a protected estate manager. The court emphasised the importance of allowing the personal injury litigation to reach a conclusion before any decision on the management of potential compensation funds. Consequently, the court adjourned the application until after the resolution of the compensation litigation, ensuring that any decision on the management of MKH's estate would be based on a more definitive understanding of MKH's financial situation.

The court's decision was to adjourn the application for the appointment of a protected estate manager until the outcome of the personal injury litigation was known. This approach allowed for a more informed decision regarding the management of MKH's estate, ensuring that any appointment of a manager would be appropriate given the actual circumstances.

Orders