2. Order that the plaintiff's costs on the indemnity basis be paid out of the plaintiff's estate to the plaintiff's solicitor up to the sum of $5,000.
Catchwords:
GUARDIANSHIP - protected person - financial management - application for revocation of management order - whether plaintiff capable of managing affairs - consideration of meaning of "capable of managing his or her affairs" - whether plaintiff able to make judgments concerning ordinary routine affairs of living - whether plaintiff has rational view of assets under management - where plaintiff does not appreciate existing liabilities - where unacceptable risk that plaintiff would incur expenses that could not be met - held plaintiff could not deal with ordinary routine affairs of her life
COSTS - exception to the general rule that costs follow the event - where plaintiff had no capacity to enter into contract of retainer with solicitor - where proceedings initiated and costs incurred for benefit of plaintiff - unjust for plaintiff's solicitors to be out of pocket - costs ordered on indemnity basis out of plaintiff's estate to plaintiff's solicitor
Y v Protective Commissioner (Supreme Court of New South Wales, 8 February 1996, unreported) PY v RJS [1982] 2 NSWLR 700 Re An Alleged Incapable Person (1959) 76 WN (NSW) 477 Re MacGregor [1985] VR 861 In the Matter of Case (1915) 214 NY 199 Re M and The Protected Estates Act 1983 (1988) 12 NSWLR 96 Re GHI (a protected person) [2005] NSWSC 581 H v H (Supreme Court of New South Wales, Young J, 20 March 2000, unreported) P v R [2003] NSWSC 819
Category:
Principal judgment
Parties:
D (Plaintiff) NSW Trustee & Guardian (Defendant)
Representation:
Counsel: C J Othens (Plaintiff) D French, solicitor (Defendant) Solicitors: City Lawyers & Consultants (Plaintiff) NSW Trustee & Guardian (Defendant)
File Number(s):
2012/59307
Judgment
HIS HONOUR: The plaintiff (who for the purpose of these proceedings is to be called D) seeks a declaration that she is capable of managing her affairs and an order revoking any earlier declaration that she is incapable of managing her affairs. She seeks the revocation of an order made on 1 December 1989 that her affairs be under the management of the Protective Commissioner (now the NSW Trustee and Guardian). She seeks an order that the NSW Trustee and Guardian deliver to her the certificate of title for a property she owns at Castle Hill and pay a sum of $5,000 to her solicitors for her costs of these proceedings and the balance to an account she has with the ANZ Bank. She also seeks an order that the NSW Trustee and Guardian inform Centrelink that the management of her affairs has been terminated.
The plaintiff…
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
AGLC
Re D [2012] NSWSC 1006
Case
[2012] NSWSC 1006
Decision Date
CaseChat Overview and Summary
The case of Re D involved the plaintiff, a protected person under a guardianship and management order, and her daughter, the defendant, who sought revocation of the management order concerning the plaintiff's financial affairs. The dispute came before the Supreme Court of South Australia. The central issue was whether the plaintiff had the capacity to manage her financial affairs, specifically if she could make judgments concerning the ordinary routine affairs of her life and had a rational view of her assets under management. Additionally, the court had to determine if the plaintiff's lack of appreciation of her existing liabilities and the risk of incurring expenses she could not meet affected her ability to manage her affairs.
The court considered the definition of "capable of managing his or her affairs" and concluded that the plaintiff could not manage her ordinary routine affairs of life. The plaintiff did not appreciate her existing liabilities and faced an unacceptable risk of incurring expenses that she could not meet, which undermined her ability to make sound judgments concerning her financial matters. The court emphasised the importance of a rational view of assets and liabilities in determining capacity. Consequently, the court found that the plaintiff was not capable of managing her financial affairs.
Based on the findings, the court ordered the revocation of the management order concerning the plaintiff's financial affairs. Additionally, the court addressed the issue of costs, noting that the plaintiff lacked the capacity to enter into a contract of retainer with her solicitor. Given that the proceedings were initiated and costs incurred for the plaintiff's benefit, the court deemed it unjust for the plaintiff's solicitors to be out of pocket. Consequently, the court ordered costs on an indemnity basis out of the plaintiff's estate to the plaintiff's solicitor.