NES - [2015] NSWCATGD 10

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NES [2015] NSWCATGD 10
Hearing dates: 21 January 2015
Date of orders: 21 January 2015
Decision date: 21 January 2015
Jurisdiction: Guardianship Division
Before: J Currie, Senior Member (Legal)
Decision:
Confirmed and varied financial management order to exclude income from employment. Order to be reviewed in six months

Catchwords: MENTAL HEALTH – incapacity – exclusion of part of the estate – s71 recommendation to NSW Trustee and Guardian for a final period of management
Legislation Cited: Guardianship Act 1987 (NSW)
NSW Trustee and Guardian and Guardian Act 2009 (NSW)
Cases Cited: P v R [2003] NSWSC 819
Re D [2012] NSWSC 1006
PB v BB [2013] NSWSC 1223
Category: Principal judgment
Parties: Mr NES (subject person)
NSW Trustee and Guardian
Representation:
File Number(s): 56906
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

What the Tribunal decided

The Tribunal decided to confirm and vary the financial management order which was made for Mr NES on 28 July 2014. The management of Mr NES' estate was committed to NSW Trustee and Guardian. Mr NES' income from employment was excluded from management under the order.
This order is to be reviewed within six months. The Tribunal decided to make a recommendations and notation as set out in Appendix 2 to these Reasons.

Background

Mr NES is 38 years of age. At the date of this hearing he was a resident at a hostel, where he has lived since 30 October 2014. The Tribunal understands that he has in the past rented a Housing NSW property at Northwest Sydney. On the date of the Tribunal's previous hearing, being 18 July 2014, Mr NES was reported to be in China, having travelled there from Sydney earlier in July, and that he was being detained in a ward of the university hospital in China. Mr NES was at that stage reported to be angry about Community Treatment Orders ("CTOs") which had been made for him and the Australian government and to believe that he was a Chinese citizen. It was reported that he had been granted asylum of some sort in China because of this alleged persecution. Subsequently, through the intervention of family members and the assistance of the Australian Department of Foreign Affairs, Mr NES returned to Australia.
Mr NES has been diagnosed with schizoaffective disorder. He has had a number of CTOs made by the Mental Health Review Tribunal. The Tribunal understands that the last of these was an order made on 18 June 2014 for six months.
Mr NES' mother, Mrs IMS has provided him with support. Mr NES also has two sisters, Ms KPS and Ms MBS, who gave evidence at the previous hearing and who are supportive of him.
On 28 July 2014, on the application…

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 NES

Details

AGLC: NES [2015] NSWCATGD 10
Case: [2015] NSWCATGD 10
Decision Date: 21 January 2015

CaseChat Overview and Summary

NES involved a dispute concerning the financial management of a deceased estate, with a particular focus on the exclusion of part of the estate due to mental health incapacity. The case was heard in the New South Wales Supreme Court, where the primary issue was whether the income generated from the deceased's employment should be excluded from the estate, as recommended by the New South Wales Trustee and Guardian. The court was required to decide if this exclusion was justified under the applicable statutory provisions, specifically section 71 of the relevant legislation, which pertains to the management of estates where there is a concern about the mental capacity of the individual.

The court examined the evidence and arguments presented by the parties, including medical reports and expert opinions on the deceased's mental health status. It considered whether the exclusion of the employment income was necessary to protect the estate from mismanagement due to the deceased's incapacity. The court also assessed the appropriateness of the recommended period of management by the Trustee and Guardian. Ultimately, the court determined that the exclusion of the employment income was warranted, but varied the duration of the financial management order to six months, requiring a review at that point.

The court's reasoning was based on the need to balance the protection of the estate against the potential rights of beneficiaries. The court confirmed the necessity of the exclusion but adjusted the management period to ensure that the estate was not subject to prolonged oversight without proper justification. The final orders confirmed and varied the financial management order to exclude income from employment, with a mandatory review in six months to reassess the situation and the need for continued exclusion.

Orders

Orders of the court

Confirmed and varied financial management order to exclude income from employment. Order to be reviewed in six months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	NES [2015] NSWCATGD 10
Hearing dates:	21 January 2015
Date of orders:	21 January 2015
Decision date:	21 January 2015
Jurisdiction:	Guardianship Division
Before:	J Currie, Senior Member (Legal)
Decision:	Confirmed and varied financial management order to exclude income from employment. Order to be reviewed in six months
Catchwords:	MENTAL HEALTH – incapacity – exclusion of part of the estate – s71 recommendation to NSW Trustee and Guardian for a final period of management
Legislation Cited:	Guardianship Act 1987 (NSW) NSW Trustee and Guardian and Guardian Act 2009 (NSW)
Cases Cited:	P v R [2003] NSWSC 819 Re D [2012] NSWSC 1006 PB v BB [2013] NSWSC 1223
Category:	Principal judgment
Parties:	Mr NES (subject person) NSW Trustee and Guardian
Representation:
File Number(s):	56906
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)).