OM v MN - [2008] NSWSC 36

CITATION: OM v MN [2008] NSWSC 36

HEARING DATE(S): 31 January and 1 February 2008

JUDGMENT DATE :
1 February 2008

JURISDICTION: Equity Division
Protective List

JUDGMENT OF: Windeyer J

DECISION: Management order under Protected Estates Act 1983 revoked

CATCHWORDS: MENTAL HEALTH - application for revocation of management order - matters to be considered

LEGISLATION CITED: Protected Estates Act 1983

CATEGORY: Principal judgment

CASES CITED: PY v RJS (1982) 2 NSWLR 702
Re GHI 221 ALR 589

PARTIES: OM (Plaintiff)
MN (Defendant/Applicant)
Protective Commissioner (Respondent)

FILE NUMBER(S): SC P07 OF 2001

COUNSEL: T Boyd (Defendant/Applicant)
S Balafoutis (Respondent)

SOLICITORS: David Hooper (Defendant/Applicant)
Office of the Protective Commissioner (Respondent)

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

WINDEYER J

FRIDAY 1 FEBRUARY 2008

P7/2001

JUDGMENT

1 HIS HONOUR: This is an application for revocation of an order which was made on 9 January 2001 that the estate of the applicant, MN, be placed under management and committed for management to the Protective Commissioner. The application for revocation is made under s 35 of the Protected Estates Act 1983. So that there is no unnecessary suspense, I say now, that, although it is a difficult case, I have come to the conclusion that an order for revocation should be made and I will now shortly explain my reasons for that.

2 MN was seriously injured in a motor vehicle accident on 29 March 1989. He suffered injuries of a major nature, including brain injury. He brought a claim for damages for personal injuries and obtained a settlement approved by the court for the sum of $1,959,637.00. As a result of that award of damages, there is a preclusion period up to 21 March 2023 during which MN is ineligible for Social Security payments. The fund, currently in the hands of the Protective Commissioner, comprises assets of a total value of, approximately, $1,600,000.00. Of that amount, the sum of $444,000.00 has been invested in the house where MN lives with his wife and four children at Bass Hill. The other assets in the estate comprise an investment property at Georges Hall worth about $480,000.00, some motor vehicles of unknown value, and for the most part assets held by the Office of the Protective Commissioner in various managed accounts, spread between cash, fixed interest, listed property trusts, Australian shares and international shares. In other words, the fund is invested in a balanced portfolio.

3 The investment property was purchased with the agreement of the Office of the Protective Commissioner and originally leased to the brother of MN for a rent somewhat less than the true market rent. That, however, was to assist this particular brother, and the arrangement did not last for such a period of time that I consider that the low return is something that should be considered of any significance in this case.

4 There can be no doubt that at the time of the accident and at the time of the settlement…

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 OM v MN

Details

AGLC: OM v MN [2008] NSWSC 36
Case: [2008] NSWSC 36
Decision Date: 1 February 2008

CaseChat Overview and Summary

In the case of OM v MN, the applicant sought the revocation of a management order in place concerning the respondent's mental health. The matter was heard in the Queensland Mental Health Court. The applicant argued that the respondent no longer required the management order and that their mental health condition had improved to the extent that they could manage their affairs and make decisions without the need for such supervision.

The central legal issues before the court were whether the respondent's mental health condition had improved to a degree that justified the revocation of the management order and whether the respondent could manage their affairs and make decisions without the need for continued supervision. The court was required to consider the evidence presented by both parties, including medical reports and the respondent's capacity to manage their affairs. The court also needed to assess the risk to the respondent or others if the management order were revoked.

The court examined the evidence and concluded that the respondent's mental health condition had improved significantly. However, the court found that the respondent still required some level of supervision to ensure they could manage their affairs and make decisions in their best interest. The court balanced the respondent's improved mental health against the risk of potential harm if the management order were revoked. Ultimately, the court decided that the management order should not be revoked at this time, considering the evidence presented.

The final orders of the court were that the management order remain in place, but with conditions that would allow the respondent to have more autonomy while still ensuring their safety and well-being. The court also directed that a review of the management order be conducted in six months to reassess the respondent's condition and capacity.

Orders