MKH v JBH (No 2) - [2016] NSWSC 1103

Supreme Court

New South Wales

Medium Neutral Citation: MKH v JBH (No 2) [2016] NSWSC 1103
Hearing dates: 9 and 11 August 2016
Date of orders: 11 August 2016
Decision date: 11 August 2016
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Orders for adjournment of an application for appointment of a protected estate manager pending payment into court of an award of personal injury compensation and the preparation of a report to the Court by the NSW Trustee, reserving in the meantime liberty to apply generally.

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 NSW 2005
Cases Cited: Ability One Financial Management Pty Limited and Another v JB by his tutor AB [2014] NSWSC 245
JMK v RDC and PTO v WDO [2013] NSWSC 1362
MKH v JBH [2016] NSWSC 1031
Category: Procedural and other rulings
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
NSW Trustee: Ms C Phang

File Number(s): 2016/00194682

Judgment

On 26 July 2016 I published, as MKH v JBH [2016] NSWSC 1031, reasons for declining to make protective estate management orders in the current proceedings pending the determination of personal injury compensation proceedings in the District Court of NSW.
The District Court proceedings were settled on 28 July 2016, upon which date the presiding judge made an order under section 76 of the Civil Procedure Act 2005 NSW that the terms of the settlement be approved.
The settlement, thus approved, provided for entry of a judgment in favour of the defendant to the current proceedings (the plaintiff in the District Court proceedings) in the sum of $3.5 million, inclusive of fund management costs but subject to adjustments, plus costs.
In the ordinary course, absent a contrary order under section 77(3), section 77 of the Civil Procedure Act 2005 operates, in these circumstances, to require the judgment debtor (in practical reality, an insurer standing behind him) to pay the judgment debt, subject to adjustments, into court pending consideration of an application to this Court for protective estate management orders.
In approving the settlement, the presiding District Court judge did not make customary, confirmatory orders that draw attention to the need for the compensation award payable by the judgment debtor to be paid into court pending the determination of an application for appointment of a protected estate manager and for a payment out of court associated with such an appointment.
This has caused practical uncertainty about how the parties are to proceed, and consequent delay.
On the application of the plaintiff (and, it can be inferred, her nephew, the defendant) in the current…

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 (No 2)

Details

AGLC: MKH v JBH (No 2) [2016] NSWSC 1103
Case: [2016] NSWSC 1103
Decision Date: 11 August 2016

CaseChat Overview and Summary

The case involved MKH and JBH, with MKH applying for the appointment of a protected estate manager for JBH, who had a mental disability. JBH was currently without other property and the application was made in anticipation of potential personal injury compensation. The application was heard in the Supreme Court of New South Wales. The primary legal issue was whether a protected estate manager should be appointed for JBH in anticipation of potential personal injury compensation when JBH had no other property at the time of the application. The court had to determine the appropriate course of action considering the potential for future compensation and the current lack of property.

The court considered the statutory framework governing the appointment of protected estate managers and the circumstances of JBH's potential compensation. It recognised that the appointment of a protected estate manager was intended to manage the financial affairs of individuals who lack the capacity to manage their own affairs due to a mental disability. The court emphasised that the appointment should only be made if it was necessary and beneficial to the protected person. Given that JBH had no other property at the time of the application and the matter was contingent on the outcome of compensation litigation, the court found it inappropriate to make an immediate appointment. The court concluded that the application should be adjourned until after the resolution of the compensation litigation to ensure that any decision regarding the appointment of a protected estate manager was made with full knowledge of JBH's financial circumstances.

The court's decision was that the application for the appointment of a protected estate manager should be adjourned until after the resolution of the compensation litigation. This decision was based on the need to ensure that any decision about the management of JBH's financial affairs was made with complete information about the potential compensation and JBH's current financial situation. The court ordered that the application be adjourned, allowing for a more informed decision once the compensation litigation was concluded.

Orders