Pamela Anne COLLIS BHT Elyshia Leanne COLLIS - [2009] NSWSC 852

NEW SOUTH WALES SUPREME COURT

CITATION:
Pamela Anne COLLIS BHT Elyshia Leanne COLLIS [2009] NSWSC 852

JURISDICTION:
Common Law

FILE NUMBER(S):
13412/09

HEARING DATE(S):
8-9 July 2009; 30 July 2009

JUDGMENT DATE:
26 August 2009

PARTIES:
Pamela Anne COLLIS BHT Elyshia Leanne COLLIS (Plaintiff)

JUDGMENT OF:
McCallum J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
P. Glissan (Plaintiff)

SOLICITORS:
Roderick Storie Solicitors (Plaintiff)

CATCHWORDS:
COMMON LAW – application for declaration pursuant to s 41(1)(a) of the NSW Trustee and Guardianship Act – application for the appointment of nominated managers of applicant’s estate pursuant to s 41(1)(b) – whether applicant capable of managing her own affairs – whether solicitor, accountant and daughter acting jointly are suitable managers of applicant’s estate

LEGISLATION CITED:
Civil Procedure Act 2005
NSW Trustee and Guardian Act 2009
Uniform Civil Procedure Rules 2005

CATEGORY:
Principal judgment

CASES CITED:
Holt v Protective Commissioner (1993) 31 NSWLR 227
PY v RJS [1982] 2 NSWLR 700
Re GHI (A Protected Person) [2005] NSWSC 581; (2005) 221 ALR 581
Re R [2000] NSWSC 886

TEXTS CITED:

DECISION:
1. I note the undertaking to the Court by Mr Storie to apply to the Proper Officer of the Court for a solicitor/client costs assessment of his costs and disbursements of acting for the plaintiff in proceedings No. 58 of 2008 in the District Court and in these proceedings.
2. I make orders 2A, 2B, 2C and 3 in the amended summons filed 30 July 2009.

JUDGMENT:

- 7 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
McCALLUM J
26 AUGUST 2009
13412/09PAMELA ANNE COLLIS BHT ELYSHIA LEANNE COLLIS

JUDGMENT

HER HONOUR: By amended summons filed in Court on 30 July 2009, Mrs Pamela Anne Collis by her tutor Elyshia Leanne Collis seeks:
(a)a declaration pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act 2009 that she is incapable of managing her affairs;
(b) an order that her estate be subject to management under the Act;
(c) an order appointing nominated managers.
Mrs Collis was the plaintiff in a motor vehicle accident claim in the District Court in respect of injuries she sustained on 16 January 2005 whilst she was a pillion passenger on a motorcycle being ridden by her husband. Mr Collis was the only defendant in those proceedings. Elyshia Collis is their adult daughter.
The present application has come before the Court by an unusual path. The proceedings in the District Court were conducted on behalf of Mrs Collis by Elyshia Collis as tutor, presumably because her solicitor formed the view that Mrs Collis was incapable of managing her own affairs within the meaning of rule 7.13 of the Uniform Civil Procedure Rules 2005. The parties reached agreement as to the compromise of the claim and the Court gave its approval to the terms of settlement in accordance with s 76(4) of the Civil Procedure Act 2005. In those circumstances, it was a…

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: [2009] NSWSC 852
Decision Date: 26 August 2009

CaseChat Overview and Summary

The applicants, Pamela Anne Collis and Elyshia Leanne Collis, sought a declaration from the court that Pamela was incapable of managing her own affairs and the appointment of nominated managers for her estate under section 41 of the Trustee and Guardianship Act 2018. The application was brought before the Supreme Court of New South Wales, which was required to determine whether Pamela was indeed incapable of managing her own affairs and if the proposed managers, a solicitor, an accountant, and her daughter, were suitable for the role. The court had to consider the evidence provided about Pamela's capacity to manage her estate and the suitability of the nominated managers in light of the statutory requirements and relevant legal principles.

The primary legal issue was assessing Pamela's capacity to manage her own affairs and determining if the nominated managers were suitable to act on her behalf. The court had to examine the medical evidence presented regarding Pamela's cognitive abilities and her ability to understand and manage her financial affairs. Additionally, the court needed to evaluate the suitability of the proposed managers, considering their professional qualifications and their relationship with Pamela. The decision hinged on whether Pamela's cognitive impairments significantly affected her capacity to manage her estate and whether the proposed managers were fit to act as her estate managers.

The court concluded that Pamela was indeed incapable of managing her own affairs due to significant cognitive impairments. The evidence demonstrated that she could not understand or manage her financial affairs effectively. Regarding the suitability of the proposed managers, the court found that the solicitor and the accountant were well-qualified professionals who had no conflict of interest. The court also considered the close relationship between Pamela and her daughter, Elyshia, and found that she was suitable to act as one of the managers. The court was satisfied that the proposed managers would act in Pamela's best interests and manage her estate appropriately.

The Supreme Court granted the application, declaring that Pamela Anne Collis was incapable of managing her own affairs. It appointed the solicitor, accountant, and Elyshia Leanne Collis as the joint managers of Pamela's estate. The court emphasised the importance of ensuring that the managers act in Pamela's best interests and manage her estate according to the statutory provisions and legal principles.

Orders