Supreme Court
New South Wales
Medium Neutral Citation: Re Application of Martin Fowler [2015] NSWSC 466 Hearing dates: 13 April 2015 and on papers Date of orders: 24 April 2015 Decision date: 24 April 2015 Jurisdiction: Equity Division Before: White J Decision: See para [14] of judgment.
Catchwords: GUARDIANSHIP – remuneration of financial managers – application by financial manager of a protected estate to be remunerated out of the estate pursuant to orders made in Re Managed Estates Remuneration Order –NSW Trustee and Guardian provided a report stating that, subject to the plaintiff’s insurance position being clarified, it is not aware of anything which might ground an objection to the application – held that the plaintiff is entitled to just and reasonable remuneration out of the estate, subject to conditions and with liberty to apply Legislation Cited: NSW Trustee and Guardian Act 2009 (NSW) Cases Cited: Re Managed Estates Remuneration Orders [2014] NSWSC 383
Ability One Financial Management Pty Ltd v JB by his tutor AB [2014] NSWSC 245Category: Procedural and other rulings Parties: Martin Fowler (Plaintiff)
ES (Defendant)Representation: Counsel:
Solicitors:
D B Beukes (Plaintiff)
C Phang (NSW Trustee & Guardian)
Streeterlaw (Plaintiff)
C Phang, NSW Trustee & Guardian (NSW Trustee & Guardian)
File Number(s): 2014/376547
JUDGMENT
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HIS HONOUR: This is an application by a private financial manager for an order authorising him to charge fees for the performance of his functions as manager of a protected estate being managed pursuant to the NSW Trustee and Guardian Act 2009 (NSW). The application is made pursuant to orders made by Lindsay J in Re Managed Estates Remuneration Orders [2014] NSWSC 383 at [12].
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In Ability One Financial Management Pty Ltd v JB by his tutor AB [2014] NSWSC 245 Lindsay J addressed the practice and procedure to be followed where the appointment was sought of a private financial manager to a protected estate where the manager was expected to seek remuneration. In the course of his Honour’s reasons he proposed that consideration be given to the Court’s making an order under s 64 of the NSW Trustee and Guardian Act to the effect that, subject to any order of the Court, the NSW Trustee be authorised to allow just and reasonable remuneration out of the estate of a protected person, subject to the NSW Trustee’s being satisfied that the manager has duly performed his or her functions and that it is in the best interests and for the benefit of the protected person for the manager to be remunerated. In Re Managed Estates Remuneration Orders Lindsay J ordered, amongst other things, that:
“(2) Order, subject to further order, that Order 3 applies if and only if, in relation to the particular estate of a managed person in respect of which a claim for remuneration is made by a manager of the estate, the manager has been authorised, by an order of the Court or by legislation governing a ‘Trustee Company’ within the meaning of the Trustee Companies…
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- Case
- [2015] NSWSC 466
- Decision Date
CaseChat Overview and Summary
The court considered the arguments from both sides and the report provided by the NSW Trustee and Guardian. The report stated that, subject to the clarification of the plaintiff's insurance position, there were no grounds for objection to the application for remuneration. The court found that Martin Fowler was indeed entitled to just and reasonable remuneration from the estate, subject to certain conditions, and with the liberty to apply for further remuneration if necessary. The court emphasised that the remuneration should be fair and reasonable, taking into account the services provided and the overall circumstances of the estate.
The court's decision was that Martin Fowler is entitled to remuneration from the estate, subject to the conditions set out in the Managed Estates Remuneration Order. The court granted the application for remuneration, with the liberty to apply for further remuneration if required, subject to the plaintiff's insurance position being clarified. This ruling ensures that the financial manager can be appropriately compensated for their services, while also protecting the interests of other parties involved in the estate.
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