Re Application of Martin Fowler - [2015] NSWSC 466

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 245
Category: Procedural and other rulings
Parties: Martin Fowler (Plaintiff)
ES (Defendant)
Representation:
Counsel:
D B Beukes (Plaintiff)
C Phang (NSW Trustee & Guardian)
Solicitors:
Streeterlaw (Plaintiff)
C Phang, NSW Trustee & Guardian (NSW Trustee & Guardian)

File Number(s): 2014/376547

JUDGMENT

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].
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…

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: [2015] NSWSC 466
Decision Date: 24 April 2015

CaseChat Overview and Summary

The case of Re Application of Martin Fowler was heard in the Supreme Court of New South Wales. Martin Fowler, the financial manager of the protected estate of a person under guardianship, applied for remuneration out of the estate pursuant to the orders made in Re Managed Estates Remuneration Order. The plaintiff, who holds an interest in the estate, opposed the application. The central legal issue before the court was whether Martin Fowler, as the financial manager, was entitled to just and reasonable remuneration from the estate, as provided for in the Managed Estates Remuneration Order, and if so, under what conditions and with what liberty to apply.

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.

Orders