QCK - [2017] NSWCATGD 32

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: QCK [2017] NSWCATGD 32
Hearing dates: 21 August 2017
Date of orders: 21 August 2017
Decision date: 21 August 2017
Jurisdiction: Guardianship Division
Before: J S Currie, Senior Member (Legal)
Decision:
1. The financial management order made for Mr QCK on 12 January 2015 is revoked, subject to the operation of order 2.

2. Order 1 will not have effect until the latter of:

(a) the expiry of three months from this date; and

(b) the date on which NSW Trustee and Guardian sends formal written notification to the Tribunal that it has passed without reservation the accounts of the estate for the period 12 January 2016 to 11 January 2017.
3. Any party has liberty to apply to the Tribunal on seven days’ notice to each other party.
Catchwords: FINANCIAL MANAGEMENT – application for revocation of financial management order –– whether subject person has regained capacity to manage affairs – evidence as to non-compliance with reporting requirements of NSW Trustee and Guardian by financial manager – conditional order made in exercise of powers under section 58 Civil and Administrative Tribunal Act – revocation order to have effect at a future date, upon compliance with the requirements of NSW Trustee and Guardian
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 36(2), 58
Guardianship Act 1987 (NSW), ss 25P(1)(a)-(b), 25P(2)
Cases Cited: CJ v AKJ [2015] NSWSC 498
G v G [2016] NSWSC 511
GW v Protective Commissioner & Ors [2003] NSW ADTAP 51
McD v McD (1983) 3 NSWLR 81
Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106
Texts Cited: Nil
Category: Principal judgment
Parties: Mr QCK (person under financial management)
Mr RMK (applicant, appointed financial manager)
Mrs TDK (spouse, carer)
NSW Trustee and Guardian
Representation: Nil

File Number(s): 2014/ 00382893
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS for decision

APPLICATION TO REVOKE FINANCIAL MANAGEMENT ORDER

What the Tribunal decided

The Tribunal decided to make orders concerning the revocation of the financial management order which had been made for Mr QCK on 12 January 2015 on the ground that it was satisfied that Mr QCK had regained his capability to manage his affairs. The Tribunal decided to revoke the order on the ground but ordered that the revocation order would have no effect until the latter of:

the expiry of three months from the date of the order; and

the date on which the NSW Trustee and Guardian sends formal written notification to the Tribunal that it has passed without reservation the accounts of the estate for the period 12 January 2016 to 11 January 2017.

Each party was given liberty to apply to the Tribunal on seven days’ notice to each other party.

Background

Mr QCK is 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.

Continue reading QCK

Details

AGLC: QCK [2017] NSWCATGD 32
Case: [2017] NSWCATGD 32
Decision Date: 21 August 2017

CaseChat Overview and Summary

The case before the court involved an application for the revocation of a financial management order made in respect of Mr QCK. The application was brought under the powers conferred by the Civil and Administrative Tribunal Act, and the dispute centred on whether Mr QCK had regained the capacity to manage his own affairs. The matter was heard in the Civil and Administrative Tribunal of New South Wales.

The key legal issues before the tribunal were whether Mr QCK had regained the capacity to manage his own financial affairs and, if so, whether the conditions imposed upon the financial manager, who had been managing Mr QCK's estate, had been satisfied to the satisfaction of the NSW Trustee and Guardian. Evidence was presented indicating non-compliance with reporting requirements by the financial manager. The tribunal had to determine the appropriate course of action in light of these issues and the statutory framework within which it operated.

The tribunal found that Mr QCK had indeed regained the capacity to manage his own financial affairs, and thus the financial management order should be revoked. However, in order to ensure that the NSW Trustee and Guardian had an opportunity to review the accounts for the relevant period and to provide its formal written notification, the tribunal made a conditional order. The revocation of the financial management order would only take effect on the expiry of three months from the date of the order or upon the receipt of the formal written notification from the NSW Trustee and Guardian, whichever was the later. This conditional approach was designed to safeguard the interests of Mr QCK and to ensure that there was no gap in the oversight of his financial affairs during the transition period.

The final orders of the tribunal provided for the revocation of the financial management order, subject to the conditions specified, and allowed for any party to apply to the tribunal for further orders within a specified timeframe. This decision demonstrates the tribunal's careful consideration of the statutory requirements and the need to balance the rights and interests of all parties involved.

Orders

Orders of the court

1. The financial management order made for Mr QCK on 12 January 2015 is revoked, subject to the operation of order 2.

2. Order 1 will not have effect until the latter of:

(a) the expiry of three months from this date; and

(b) the date on which NSW Trustee and Guardian sends formal written notification to the Tribunal that it has passed without reservation the accounts of the estate for the period 12 January 2016 to 11 January 2017.

3. Any party has liberty to apply to the Tribunal on seven days’ notice to each other party.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	QCK [2017] NSWCATGD 32
Hearing dates:	21 August 2017
Date of orders:	21 August 2017
Decision date:	21 August 2017
Jurisdiction:	Guardianship Division
Before:	J S Currie, Senior Member (Legal)
Decision:	1. The financial management order made for Mr QCK on 12 January 2015 is revoked, subject to the operation of order 2. 2. Order 1 will not have effect until the latter of: (a) the expiry of three months from this date; and (b) the date on which NSW Trustee and Guardian sends formal written notification to the Tribunal that it has passed without reservation the accounts of the estate for the period 12 January 2016 to 11 January 2017. 3. Any party has liberty to apply to the Tribunal on seven days’ notice to each other party.
Catchwords:	FINANCIAL MANAGEMENT – application for revocation of financial management order –– whether subject person has regained capacity to manage affairs – evidence as to non-compliance with reporting requirements of NSW Trustee and Guardian by financial manager – conditional order made in exercise of powers under section 58 Civil and Administrative Tribunal Act – revocation order to have effect at a future date, upon compliance with the requirements of NSW Trustee and Guardian
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 36(2), 58 Guardianship Act 1987 (NSW), ss 25P(1)(a)-(b), 25P(2)
Cases Cited:	CJ v AKJ [2015] NSWSC 498 G v G [2016] NSWSC 511 GW v Protective Commissioner & Ors [2003] NSW ADTAP 51 McD v McD (1983) 3 NSWLR 81 Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Mr QCK (person under financial management) Mr RMK (applicant, appointed financial manager) Mrs TDK (spouse, carer) NSW Trustee and Guardian
Representation:	Nil
File Number(s):	2014/ 00382893
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).