R by his tutor NSW Trustee v L - [2021] NSWSC 1237

Supreme Court

New South Wales

Medium Neutral Citation: R by his tutor NSW Trustee v L [2021] NSWSC 1237
Hearing dates: 27 September 2021
Date of orders: 28 September 2021
Decision date: 28 September 2021
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
A claim by the daughter of a protected person for an order that the NSW Trustee be removed as the financial manager of a protected estate dismissed without prejudice to such, if any, entitlements the claimant might have to apply to NCAT for review of a decision to be made by the NSW Trustee about a sale of land in management of the estate.

Catchwords:
MENTAL HEALTH — Management of estate — Administration by NSW Trustee — Application by daughter of protected person that NSW Trustee be removed as financial manager and that she be appointed as financial manager instead — Application dismissed

Legislation Cited:
Civil and Administrative Tribunal Act 2013 NSW
Guardianship Act 1987 NSW
NSW Trustee and Guardian Act 2009 NSW

Cases Cited:
CAC v Secretary, Department of Family and Community Services (No 2) [2015] NSWSC 344
CCR v PS (No 2) (1986) 6 NSWLR 622
Holt v Protective Commissioner (1993) 31 NSWLR 227
LP v P (2018) 98 NSWLR 377
M v M [2013] NSWSC 1495

Category: Principal judgment
Parties: Plaintiff: R (a protected person) by his tutor NSW Trustee
Defendant: L, a daughter of R
Cross-claimant: L
Cross-defendant: NSW Trustee as tutor for R
Representation:
Counsel:
Plaintiff: C Zucker, solicitor
Defendant: self-represented
Cross-claimant: self-represented
Cross-defendant: J Brouwer, solicitor
Solicitors:
Plaintiff: Zucker Legal
Defendant: self-represented
Cross-claimant: self-represented
Cross-defendant: NSW Trustee

File Number(s): 2021/00120445

Judgment

Introduction

This judgment is published in explanation of orders made by the Court on 28 September 2021 dispositive of proceedings then pending in the Protective List of the Court.

Reasons for Orders

Context. The NSW Trustee has been financial manager of the protected estate of R (an elderly man) since 14 July 2020.
On that date, the NSW Civil and Administrative Tribunal (“NCAT”), in its Guardianship Division, upon an exercise of jurisdiction under the Guardianship Act 1987 NSW, found that R is incapable of managing his own affairs and committed management of the estate of R to the NSW Trustee.
On 21 January 2021 NCAT conducted a review of its financial management order and confirmed the NSW Trustee’s appointment as R’s financial manager.
Neither NCAT’s order of 14 July 2020 nor its order of 21 January 2021 was the subject of an appeal (pursuant to Part 6 of Schedule 6 to the Civil and Administrative Tribunal Act 2013 NSW), either to an Appeal Panel of the Tribunal or to this Court.
A concomitant of the NSW Trustee’s appointment as R’s financial manager is that his estate is subject to management under NSW Trustee and Guardian Act 2009 NSW.
A prominent participant in the NCAT proceedings was a daughter of R, the defendant to the current proceedings. She is a daughter of R’s second marriage.
During the course of proceedings…

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: [2021] NSWSC 1237
Decision Date: 28 September 2021

CaseChat Overview and Summary

In the matter of R by his tutor NSW Trustee v L, the Supreme Court of New South Wales was presented with an application by the daughter of a protected individual, seeking to remove the NSW Trustee as the financial manager of her father's estate and to be appointed in their place. The protected individual, who was not named in the text, was under the care and management of the NSW Trustee due to a mental health condition that rendered them unable to manage their own financial affairs.

The legal issues before the court were whether the NSW Trustee had acted appropriately in their role as financial manager and whether the applicant possessed the necessary qualifications and suitability to take over this responsibility. The court was tasked with determining if the NSW Trustee's management of the estate was in the best interests of the protected person and if the applicant's appointment as financial manager would serve the protected individual's welfare better.

The court considered the evidence and submissions presented by both parties, ultimately finding that the NSW Trustee had fulfilled their duties as financial manager appropriately and had acted in the best interests of the protected person. The court was not satisfied that the applicant had demonstrated the requisite capacity, knowledge, and experience to assume the role of financial manager. Consequently, the application was dismissed, and the NSW Trustee remained the financial manager of the estate. No further orders were made by the court.

Orders