P v P

[2003] NSWSC 760

CITATION:	P v P [2003] NSWSC 760
HEARING DATE(S):	15 August 2003
JUDGMENT DATE:	15 August 2003
JURISDICTION:	Equity Division Protective List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Application for change of manager refused.
CATCHWORDS:	PROTECTED ESTATES ACT - application for change of manager
LEGISLATION CITED:	Protected Estates Act 1983 s13, s55
PARTIES :	DP (Plaintiff) MP (Defendant)
FILE NUMBER(S):	SC 37 of 2000
COUNSEL:	Mr A Porthouse (Plaintiff) Mr S Balafoutis (Defendant)
SOLICITORS:	Carroll & O'Dea (Plaintiff) T. Tunbridge (Defendant)

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

WINDEYER J

FRIDAY 15 AUGUST 2003

P37/00

JUDGMENT

1 HIS HONOUR: This is an application by Notice of Motion under which Mr P, the father of M, seeks an order that the National Australia Trustees Limited be appointed in place of the Protective Commissioner as manager of the estate of M.

2 M was born on 5 August 1980. He suffered serious injuries in an accident in 1984. An order under s13 of the Protected Estates Act 1983 was made on 19 May 2000, by which the estate was committed to the Protective Commissioner for management.

3 The Notice of Motion does not really seek an order for the replacement, but that is what is intended. I have said before, that because the s13 order was a final order, proceedings for a change of manager should be brought in separate proceedings. But there is no need to worry about that any further so far as this application is concerned.

4 It might have originally been thought that there was to be some contest as to whether or not a financial plan, proposed by the Protective Commissioner, was superior or inferior to a financial plan proposed by National Australia Trustees. That is no longer an issue. It is, I think, proper to point out that there are mistakes in both plans, some of which were remedied by affidavit evidence and some of which were not.

5 It is also, I think, appropriate to point out that it could never have been clear to a layperson, reading what is now described as the second plan of the Protective Office, which is the one which that office proposed to implement and which is dated 8 May 2002, that some funds were set aside in case it was decided, or considered appropriate, to purchase a commercial investment property. The parents of M, at least early in the year 2002, considered would be a desirable investment for part of the funds of their son.

6 One reason it is no longer a problem is that in the plan of National Australia Trustees, which is at least put forward by Mr P, as a plan which it would be appropriate to have implemented if National Australia Trustees were appointed, it is not suggested that there would be any purchase of commercial property as an investment.

7 One other question which has been raised and which can now be disregarded is that the estate currently holds a residential apartment at Pyrmont, which it is proposed M should reside in with his parents, from time to time at weekends, and which it is hoped he may be able to move into independently, although on the basis that care would be available to him, in perhaps ten years time. This is obviously a matter where the long term care of M, is of great concern to his parents, and it should not be thought otherwise. In matters such as this it is usually necessary for the parents to look beyond the term of their lives, or the time when they will be able to care for their child, to see that appropriate arrangements are in place after their care can no longer be given.

8 There is evidence adduced by Mr P, the applicant, of a Mr Power of an expert nature, comparing the two plans for investment. He concluded one could not be said to be superior to the other. What is called the OPC plan, proposes that the sum available for investment, which is close to $4m at least, including the Pyrmont property, should be placed in various indexed funds controlled by the Protective Commissioner, some of which are managed on an outsourced basis for the Protective Commissioner.

9 The plan propounded by the National Australia Trustees and produced by a Mr Dixon, the financial manager engaged, as I understood it, by National Australia Bank, is not for investment in indexed funds, but for the investment, for the most part, in managed funds not invested on an indexed basis.

10 There is no basis on which this court could determine that one or other of these methods of investment would produce a better result over a long period of time, and the evidence of Mr Power does not suggest that it is so possible.

11 The fees which will be charged by either National Australia Trustees, or the Protective Commissioner, are not shown to be very different. But once again I have to point out, that while there is evidence that the fees of the Protective Commissioner, are, one hopes in the near future, to be determined on a different basis from that now allowed by the Regulation and by s55 of the Protected Estates Act, at the present time no such new schedule of fees has been approved or promulgated. Thus, although there would be $10,000 charged by National Australia Trustees as an establishment fee, I do not think that this should be taken into account as some additional expense, when the precise fees which will be charged against the estate by the Protective Office are not known.

12 For there to be a change of manager, there must be a proper reason put forward for this, which is accepted by the court as a proper reason. What has to be determined in these matters, is what is in the best interests of the protected person. But as I have said before, it is not possible to say that it is in the interests of the protected person to direct a change of management, just because the parents, or other persons most closely associated with that person, ask for a change and say that they are dissatisfied with the Protective Commissioner. There needs to be more than that.

13 In this case, apart from the investment plans, which it is now agreed do not form any basis for a distinction, what is put forward as a basis for ordering a change of management, is that there has been a breakdown of relationship between Mr and Mrs P and the Protective Commissioner because there has been a delay in preparation of an investment plan by the Protective Office, and that this has caused aggravation to the parents of M.

14 There is no doubt that there has been some delay. Legislation enabling a wider range of investments for funds under the management of the Protective Commissioner, has been in place since 9 November 2001. There were meetings in late December 2001 and in January 2002, between Mr and Mrs P and officers of the Protective Office, including the estate managers and financial managers in that office.

15 There is a dispute as to whether or not Ms Antoinette, who prepared a first draft plan and the now proposed second plan, said that she would send a copy of the first plan to Mrs P within two weeks. Mrs P says she did and Ms A says she did not, and it is not possible for me to determine that, one way or the other, on the evidence before the court.

16 The reason Ms Antoinette says that she did not send it, is that she said that Mr and Mrs P were putting forward a proposal for investment in commercial real estate, that she was not enthusiastic about that, but said that it might be possible, although there would be a limit on the amount of funds which could be put forward for this, and that subsequently she told Mrs P that it would be possible to invest 10 percent of the funds under management in such an investment, which Mrs P told her was not enough.

17 Certainly, under the second plan dated 8 May 2002 there were funds which, on the face of that plan, were to be invested in cash type investments, but which, according to Ms Antoinette, could have been available for some commercial real estate investment. However, it would have been impossible for any ordinary reader of the plan, to understand that those funds were thought to be available in that form and for that purpose.

18 There was, therefore, a delay between about December 2001 and May 2002 in the preparation of the second plan, but whether or not that was the fault of the Protective Commissioner and his staff, or the fault of Mr and Mrs P, in discussions about the commercial property, I cannot really decide.

19 When the second plan was sent to Mr and Mrs P, in May 2002, they were on holidays. The Protective Commissioner was wishing to implement a plan, but agreed that an extension of time should be given to enable Mr and Mrs P to obtain advice from Mr Dixon of the National Australia Bank, who at that stage was on leave, whom they wished to review the plan.

20 Ultimately, a meeting was arranged in November 2002, which was attended by Mr and Mrs P and M, with representatives from the Protective Office, and representatives from National Australia Trustees, and Mr Dixon from the National Australia Bank. It seems that there was some dispute at that meeting as to what should happen about investment.

21 There is a file note of a Ms Wiles, the estate manager of M, to which Mrs P takes exception. One can understand why she would do so but that file note could not justify a change of manager and probably would never have appeared had it not been for these proceedings.

22 When investment is made of the funds under an appropriate plan, then whoever is the manager, it seems unlikely that there would need to be a great deal of contact between the manager and the parents. That is because this is one estate, where luckily enough, it seems that there will be sufficient funds available by way of income and expected increases in capital values, to satisfy and easily meet the expenses which will be incurred for M. That is a situation which does not arise in a great many estates administered pursuant to orders under s13 of the Protected Estates Act.

23 There is one further matter which has not been raised directly by counsel for the applicant, but which nevertheless, is referred to in affidavits. That is, that there have been at least three estate managers dealing with the affairs of M in the Protective Office, since the order was made. The parents have, I think, some reason to regard that as unsatisfactory. It is difficult to establish a relationship with one estate manager, and then to have that manager replaced by another one. I accept that is a problem endemic in the Protective Office, because it is a large office. But nevertheless, it is a matter which causes concern, not only to the parents here, but which has caused concern in other matters which have come before the court. Nevertheless, in this matter it gives no proper basis for ordering a change in manager and is not put forward as such.

24 What I am about to say, will I am afraid, be distressing to the parents. The fact is however, that the court is required to decide what is in the best interests of M, and when there is already in place a management order, whether sufficient justification, or reason has been made out for a change of manager. In this case, there is no reason put forward that could possibly justify that, other than the delay in implementation of a plan. There has been no loss as a result of that delay, although that is really fortuitous, rather than something which could necessarily have been expected. But I do not consider that the delay which has occurred in the implementation of the plan – much of which was not the fault of the Protective Commissioner - nor I should say the toing and froing about whether or not a commercial property should be purchased as a direct investment, provides a reason to order a change of manager for this estate. I propose to so order.

25 Orders

1. I order the notice of motion be dismissed.

2. I order the costs of the applicant and the respondent be paid out of the protected estate.

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Last Modified: 08/28/2003