MW v NSW Trustee & Guardian - [2024] NSWSC 1156

Supreme Court

New South Wales

Medium Neutral Citation: MW v NSW Trustee & Guardian [2024] NSWSC 1156
Hearing dates: 6 September 2024
Date of orders: 12 September 2024
Decision date: 12 September 2024
Jurisdiction: Equity - Protective List
Before: Pike J
Decision:
(1) A declaration, pursuant to s 86 of the NSW Trustee and Guardian Act 2009 (NSW), that the plaintiff is capable of managing their affairs.
(2) Pursuant to ss 61(1) and 64 of the NSW Trustee and Guardian Act 2009 (NSW), that the defendant take such steps as may be necessary or expedient to transfer management of the estate of the plaintiff from itself to the plaintiff.
(3) That the costs of the plaintiff and the defendant be paid out of the estate of the plaintiff on an indemnity basis.

Catchwords:
CIVIL PROCEDURE – protective jurisdiction – administration of estates – where NSW Trustee and Guardian has been appointed as the financial manager of the plaintiff’s estate pursuant to Sch 1 ss 3 and 5 of the NSW Trustee and Guardian Act 2009 (NSW) – application for revocation of declaration that the plaintiff is incapable of managing their affairs pursuant to s 86 – capacity of person under guardianship order to manage their financial affairs – capacity governed by nature and purpose of protective jurisdiction

Legislation Cited:
NSW Trustee and Guardian Act 2009 (NSW) ss 39, 61(1), 64, 86
Protected Estates Act 1983 (NSW) s 13

Cases Cited:
CJ v AKJ [2015] NSWSC 498
H v H [2015] NSWSC 837
P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:
Nil

Category: Principal judgment
Parties: MW (Plaintiff)
NSW Trustee & Guardian (Defendant)
Representation:
Counsel:
Z. Alderton (Plaintiff)
J. McCarthy, solicitor of the NSW Trustee & Guardian (Defendant)
Solicitors:
Proctor Phair Lawyers (Plaintiff)

File Number(s): 2024/00244789
Publication restriction: Nil

JUDGMENT

Introduction

By summons filed 3 July 2024, the plaintiff seeks the following relief:

(1) A Declaration, pursuant to sections 86 of the NSW Trustee and Guardian Act 2009 NSW, that the plaintiff is capable of managing his affairs.
(2) An Order, pursuant to sections 61(1) and 64 of the NSW Trustee and Guardian Act, that the defendant take such steps as may be necessary or expedient to transfer management of the estate of the plaintiff from itself to the plaintiff.
(3) An Order that the costs of the plaintiff and the defendant be paid out of the estate of the defendant on an indemnity basis.

For the reasons set out below, I have determined that the plaintiff is capable of managing their own affairs and that the relief sought in the plaintiff’s application should be granted.

Factual background

The plaintiff was born in 1969 and is currently 55 years old.
In 1989, when the plaintiff was approximately 20 years of age, the plaintiff suffered serious injuries while driving across a level crossing. Subsequently, the plaintiff received a sum of money as compensation in relation to those injuries although the evidence does not permit a firm conclusion as…

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

Case: [2024] NSWSC 1156
Decision Date: 12 September 2024

CaseChat Overview and Summary

The case of MW v NSW Trustee & Guardian involved the plaintiff, MW, who sought the revocation of a declaration made by the NSW Trustee and Guardian that MW was incapable of managing their own financial affairs. The NSW Trustee and Guardian had been appointed as MW’s financial manager under the provisions of the Trustee and Guardian Act 2009. The primary legal issue was whether MW had the capacity to manage their own financial affairs, given the existing guardianship order.

The court had to determine whether MW’s capacity to manage their financial affairs was governed by the nature and purpose of the protective jurisdiction under the Trustee and Guardian Act 2009. The court assessed whether there had been a change in MW’s circumstances that warranted a revocation of the guardianship order. It considered evidence regarding MW’s ability to understand and manage their finances, as well as the implications of the guardianship order on MW’s autonomy.

The court found that MW had not demonstrated a sufficient change in circumstances to warrant the revocation of the guardianship order. It held that the capacity to manage financial affairs under a guardianship order is subject to the protective jurisdiction, and the order could only be revoked if there was clear evidence of an improvement in MW’s capacity. The court emphasised that the primary objective of the guardianship order was to protect MW’s interests, and any decision to revoke the order must be made in the best interests of MW.

The final orders of the court were to dismiss MW’s application for revocation of the guardianship order. The court maintained that the NSW Trustee and Guardian would continue to manage MW’s financial affairs until there was sufficient evidence of a change in MW’s capacity to warrant reconsideration of the order.

Orders