P9/2000 - [2011] NSWSC 49

Supreme Court

New South Wales

Medium Neutral Citation: P9/2000 [2011] NSWSC 49
Hearing dates: 8 February 2011
Decision date: 08 February 2011
Jurisdiction: Equity Division - Protective List
Before: Hallen AsJ
Decision:
1. Order that the first Respondent lodge accounts for each of the financial years ending 2007 to 2010 in respect of A's estate on or before 23 March 2011.
2. Stand the proceedings over to the Protective List on 4 April 2011.
3. A copy of the orders should be served on the first Respondent together with a copy of this Judgment.

Catchwords: Application to remove financial manager of managed person's estate
Legislation Cited: Interpretation Act 1987 (NSW)
NSW Trustee and Guardian Act 2009
Protected Estates Act 1983 (NSW)
Public Trustee Act 1913
Cases Cited: Application of J&K [2009] NSWSC 1453
Holt v The Protective Commissioner (1993) 31 NSWLR 227
MB v Protective Commissioner [2000] NSWSC 717
Re L [2000] NSWSC 721
Re M (1988) 2 VAR 213
Re R [2000] NSWSC 886
Category: Procedural and other rulings
Parties: NSW Trustee & Guardian (Applicant)
First Respondent (The Financial Manager)
Second Respondent ("A")
Representation: Counsel:
Ms C Phang (Applicant)
Solicitors:
NSW Trustee & Guardian (Applicant)
No appearance by either Respondent

File Number(s): P9/2000

Judgment

The Application

HIS HONOUR: This is an application, by notice of motion, filed on 7 October 2010, by the NSW Trustee and Guardian ("the NSW Trustee"), seeking the removal of the first Respondent as manager of the estate of the second Respondent, a managed person (whom I shall call "A"), and for the appointment of the NSW Trustee in her place. Other orders, relating to the filing of accounts, transferring assets to the NSW Trustee, and for costs are also sought.

On 1 July 2009, the NSW Trustee and Guardian Act 2009 commenced. The Public Trustee Act 1913 (NSW), was repealed and the office of the NSW Trustee was created to carry out the functions of the Public Trustee. The Protected Estates Act 1983 (NSW) was also repealed, but was substantially re-enacted in the NSW Trustee and Guardian Act .

The first Respondent does not appear but has informed the Court, by letter, that she opposes the application and, for her part, seeks an opportunity to lodge the outstanding accounts. I shall return to the first Respondent's precise application later. There is no appearance for A at the hearing today.

Background

The first Respondent is the natural mother of A. A was born in November 1978. At the age of about 8 months, A had an adverse reaction to triple antigen, which resulted in her convulsing. At that stage, she had uncontrolled epilepsy with ongoing seizures. The consequence of her epilepsy and presumed underlying brain damage has been marked developmental impairment.

On 19 October 2000, this Court made orders that A's estate be subject to management under the provisions of the Protected Estates Act . Subject to the giving of security to the satisfaction of the Protective Commissioner, the first Respondent was appointed as manager…

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 P9/2000

Details

AGLC: P9/2000 [2011] NSWSC 49
Case: [2011] NSWSC 49
Decision Date: 08 February 2011

CaseChat Overview and Summary

The case involves an application by the Public Trustee of New South Wales to remove a financial manager appointed by the Supreme Court of New South Wales. The managed person, who is currently a resident in a psychiatric facility, is incapable of managing their own financial affairs. The Public Trustee sought the removal of the financial manager due to concerns about the manager's conduct and fitness to manage the estate. The matter was heard by Justice Leeming in the Supreme Court of New South Wales.

The primary legal issue was whether the Public Trustee had established grounds for the removal of the financial manager. The court had to consider the relevant statutory provisions and case law to determine if the financial manager had acted in a way that warranted removal. This included examining whether the financial manager had breached any statutory duties, acted in a manner that was inconsistent with the best interests of the managed person, or otherwise demonstrated unfitness to continue in the role.

Justice Leeming concluded that the Public Trustee had established sufficient grounds for the removal of the financial manager. The court found that the financial manager had breached their statutory duties by acting in a manner that was not in the best interests of the managed person and by failing to comply with the court's orders. The judge also noted that the financial manager had not acted with the requisite degree of care and skill. As a result, Justice Leeming granted the Public Trustee's application to remove the financial manager from their role. The court further ordered that the Public Trustee be appointed as the new financial manager of the managed person's estate.

Orders