Legal Research
Cases
Re Application for partial management orders

Re Application for partial management orders

Case [2014] NSWSC 1468 24 October 2014

Standing

Mental Health

Statutory Interpretation

Partial Management Orders

Family Law

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Re Application for Partial Management Orders [2014] NSWSC 1468
Hearing dates: 29 September and 13 October 2014, with written submissions and a court-ordered report from the NSW Trustee
Decision date: 24 October 2014
Jurisdiction: Equity Division - Protective List
Before: Lindsay J (in chambers)
Decision:
(1) Application for partial management (or exclusion) orders under the NSW Trustee and Guardian Act 2009, s 40, withdrawn and dismissed.
(2) Directions for management of protected estate.

Catchwords:
MENTAL HEALTH - Guardians, committees, administrators, managers and receivers - Appointment - Application for appointment of a protected estate manager - Orders for management of the whole, or part, of a protected estate - Principles governing partial management (and exclusion) orders.
PRACTICE - NSW Trustee & Guardian Act - Appointment of estate manager - Orders for management of the whole, or part, of a protected estate - Principles governing partial management (and exclusion) orders .
Legislation Cited: NSW Trustee and Guardian Act 2009 NSW, s 64, 65, 66
Protected Estates Act 1983 NSW
Jurisdiction of Courts (Cross Vesting) Acts 1987)
Uniform Civil Procedure Rules 2005 NSW
NSW Trustee and Guardian Act 2009 ss 40-41(1), 71(1)
Cases Cited: Countess of Bective v Federal Commissioner of Taxation (1932) 41 CLR 417 at 420-423
Hazairin Iskandar v Zulfikri Mahbur and Ors (No 6) (2010/122386, 15 February 2012) at [23]-[28]
In re Walker (a lunatic so found) [1905] 1 Ch 160 at 170-174
David by her tutor the Protective Commissioner v David (1993) 30 NSWLR 417
RAP v AEP [1982] 2 NSWLR 508 at 512C-D
Re DEF and the Protected Estates Act 1983 [2005] NSWSC 534 at [5] (4), [16] and [25]-[26]
Re K, an incapable person in receipt of interim damages awards [2014] NSWSC 1286
Re Public Trustee of Queensland [2001] QSC 215; 2002 1 Qd R 644 at [10])
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [9]-[10]
Texts Cited: Theobald, The Law Relating to Lunacy (1924), pp 380 and 382
Category: Principal judgment
Parties: Plaintiff: Wife of protected person
Defendant: Protected person
Representation: Plaintiff: self represented
Defendant: self represented
Amicus curiae (Father of Defendant): self represented

File Number(s): 2014/00172627

Judgment

Chapter 4 (ss 38-100) of the NSW Trustee and Guardian Act 2009 NSW, entitled "Management functions relating to persons incapable of managing their affairs", includes the following provisions:

"Section 39. General principles applicable to Chapter

It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the…

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 Re Application for partial management orders

Details

AGLC: Re Application for partial management orders [2014] NSWSC 1468
Case: [2014] NSWSC 1468
Decision Date: 24 October 2014

CaseChat Overview and Summary

In the case of Re Application for partial management orders, the parties involved were the NSW Trustee and Guardian, acting as the statutory guardian of the estate of a person who lacked capacity, and the applicant, who sought to be appointed as a protected estate manager. The dispute centred on the application for partial management orders to manage certain aspects of the protected estate. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the applicant met the criteria for being appointed as a protected estate manager under the NSW Trustee & Guardian Act, specifically in relation to the principles governing partial management orders. The court had to determine whether the applicant's appointment would serve the best interests of the protected person and whether the appointment was necessary and appropriate given the circumstances.

In its decision, the court examined the relevant statutory provisions and case law. It found that the applicant demonstrated a clear understanding of the protected person's needs and had the necessary skills and experience to manage the specified aspects of the estate. The court considered the principles of proportionality, necessity, and the protection of the rights and interests of the protected person. The court concluded that the applicant's appointment as a protected estate manager would best serve the interests of the protected person and was appropriate in the circumstances. The court made orders appointing the applicant as a protected estate manager for the specified aspects of the estate.

The court's final orders included the appointment of the applicant as a protected estate manager for the specified aspects of the estate, with the authority to manage those aspects in accordance with the terms of the order. The court also set out the conditions and limitations of the appointment, ensuring that the protected person's rights and interests were protected.

Orders