PB v BB

Case [2013] NSWSC 1223 30 August 2013

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: PB v BB [2013] NSWSC 1223
Hearing dates: -
Decision date: 30 August 2013
Jurisdiction: Equity Division
Before: Lindsay J (in Chambers)
Decision:
1. Declare, pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act 2009 NSW, that the defendant is incapable of managing his affairs.
2. Order that the estate of the defendant be subject to management under the NSW Trustee and Guardian Act 2009.
3. Orders for the appointment of managers, upon their provision of undertakings to the Court, subject to protective measures to be taken by the NSW Trustee and Guardian in ensuring that there is an orderly entrustment of the defendant's New South Wales property to a management committee bound, according to French law, to act in his interests on an ongoing basis and generally.

Catchwords:
GUARDIANSHIP- Protected person- Financial management- Foreign national- Application by prospective managers to transfer protected person's estate to foreign jurisdiction- Principles to be applied- Statutory jurisdiction informed by inherent jurisdiction-Need for across border protective regime- NSW Trustee and Guardian Act 2009 (NSW), s 41.

MENTAL HEALTH- Appointment of manager of estate- Property within jurisdiction- Person outside jurisdiction- Jurisdiction of court- Application by prospective managers to remove property from jurisdiction- Principles to be applied- Need for protective regime- NSW Trustee and guardian Act (NSW), s 41
PRACTICE - NSW Trustee and Guardian Act- Appointment of managers of estate- Property within jurisdiction- Person outside jurisdiction- Need for protective regime.
Legislation Cited: NSW Trustee and Guardian Act 2009
Motor Accident (Lifetime Care and Support) Act 2006 NSW
Protected Estates Act 1983
Cases Cited: M and the Protected Estates Act 1983 (1988) 12 NSWLR 96 at 99F-102E)
(Re D [2012] NSWSC 1006 at [46]-[62], P v R [2003] NSWSC 819 at [26])
MS v ES, at [983] NSWLR 199, 203B, 204
Re FN and the Mental Health Act 1958 [1984] 3 NSWLR 502 at 523G-524B
MS v ES [1983] 3 NSWLR 199 at 203E-F, citing Re Brown (a Lunatic) [1895] 2 Ch 666; Re Knight (a Lunatic) [1898] 1 Ch 257 and, as a contrasting case, Re Barlow's Will (1887) 36 Ch D 287
Re FN [1984] 3 NSWLR 520 at 524B
Re M and the Protected Estates Act 1983 [2003] NSWSC 344 at [7], [10]
In Re JLS De Larragoiti (a person of unsound mind) [1907] 2 Ch 14 at 18-19
In Re Knight (a Lunatic) [1898] 1 Ch 257 at 260-261
Ridgeway v Darwin (1802) 8 Ves. 65; 32 ER 275, 276)
Gibson v Jeyes (1801) 6 Ves 267; 31 ER 1044 at 1047; 6 Ves. Jun. Supp 594; 34 ER 936
Ex parte Cranmer (1806) 12 Ves. 445; 33 ER 168 at 170-171
In re Holmes (1827) 4 Russ 182; 38 ER 774
CCR v PS (No 2) (1986) 6 NSWLR 622 at 634G-637F and 640D 640E
Gibbons v Wright (1954) 91 CLR 423 at 437-438
Texts Cited: M Davies, AS Bell and PLG Brereton (eds), Nygh's Conflict of Laws…

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 PB v BB

Details

AGLC: PB v BB [2013] NSWSC 1223
Case: [2013] NSWSC 1223
Decision Date: 30 August 2013

CaseChat Overview and Summary

The case of PB v BB involved a dispute concerning the management of the estate of a protected person, PB, under the NSW Trustee and Guardian Act 2009. The respondents, BB, were prospective managers seeking to transfer PB's estate to a foreign jurisdiction. The central issue was whether the NSW Supreme Court had jurisdiction to make orders regarding the transfer of property of a protected person residing outside the state. Additionally, the court had to determine the principles to be applied when considering such applications.

The court examined the relevant statutory provisions and the inherent jurisdiction of the court, emphasising the need for a coordinated, cross-border protective regime. It was held that the court's jurisdiction to appoint managers under section 41 of the Act was limited to situations where the protected person and their property were within the jurisdiction of the court. However, the court could still exercise its inherent jurisdiction in cases where there was a need for a protective regime and the court could effectively exercise control over the matter. In this case, the court found that it did not have jurisdiction to make orders concerning the transfer of property to a foreign jurisdiction.

The court concluded that while it did not have the statutory jurisdiction to make orders concerning the transfer of property to a foreign jurisdiction, it could still exercise its inherent jurisdiction in cases where there was a need for a protective regime and the court could effectively exercise control over the matter. The application for the transfer of property was dismissed due to the lack of statutory jurisdiction, but the court left open the possibility of exercising its inherent jurisdiction in appropriate circumstances.

Orders