Re D
[2012] NSWSC 1006
•31 August 2012
Supreme Court
New South Wales
Medium Neutral Citation: Re D [2012] NSWSC 1006 Hearing dates: 30 July 2012 Decision date: 31 August 2012 Before: White J Decision: 1. Order that the summons be dismissed.
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 solicitorLegislation Cited: Protected Estates Act 1983
NSW Trustee and Guardian Act 2009
Mental Health Act 1958Cases Cited: 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 819Category: 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 suffered an injury on 28 September 1978 when she was 15. On 25 May 1982 Roden J approved of a settlement of a negligence claim that the plaintiff had brought through her tutor for damages. There was verdict and judgment for the plaintiff in the sum of $519,000. After deducting $29,074.32 for medical and related expenses paid in advance and $9,155.50 repayable to the Department of Social Security, and after paying further medical expenses from the balance of the verdict to be paid into court, a sum of $479,625 was to be paid to Perpetual Trustee Company Limited to be held on trust for the plaintiff. In approving the settlement, Roden J observed that as a result of the accident the plaintiff had suffered brain stem injury with severe intellectual impairment which had brought about a loss of all capacity for all forms of work and need for permanent care.
In 1987 Perpetual Trustee Company Limited purchased the property in Castle Hill for the plaintiff. She has resided there since. On 31 December 1989 orders were made in the Protective Division removing Perpetual Trustee Company Limited as trustee of the plaintiff's estate. An order was made that management of the plaintiff's estate be committed to the Protective Commissioner.
On 9 February and 30 March 1990 Perpetual Trustee Company Limited transferred sums of $165,500 and $16,210.30 to the Protective Commissioner for the plaintiff. Apart from these sums, the only funds of the plaintiff that have come under the management of the Protective Commissioner or the NSW Trustee and Guardian have been interest on the moneys invested, tax refunds in 1990, medical refunds and like incidental payments, and pension moneys.
On 31 August 1995 the plaintiff sought a declaration that she was capable of managing her affairs and an order that her estate be released from management under the Protected Estates Act 1983. That application was dismissed by Hodgson J (as his Honour then was) on 8 February 1996. In his reasons for judgment (Y v Protective Commissioner (Supreme Court of New South Wales, 8 February 1996, unreported), his Honour recorded that by 1996 the money in the plaintiff's estate had been reduced to an amount of about $8,000 so that the estate then consisted of the house and those moneys. His Honour recorded that the plaintiff's evidence indicated that she had made remarkable progress from a very serious accident and was coping remarkably well in the daily tasks of living. His Honour said that she coped reasonably well with budgeting for daily expenditure. His Honour recorded that the plaintiff had given evidence that she knew that the Protective Commissioner was holding $5 million on her account and that any statements to the contrary had to be lies. She asserted that this is what she had been told by God and the Holy Spirit and was not prepared to consider evidence that might suggest otherwise. His Honour was of the opinion that there was a high probability that if the management order was not continued, the plaintiff, firmly believing that she had assets in the order of $5 million, would incur substantial expenses with the almost inevitable result that her house would be lost. His Honour recorded that she had incurred quite substantial expenditure in relation to the house, as well as other matters. His Honour said that:
"... the question of capability of managing affairs involves, in my opinion, a willingness to look at practical issues in relation to money in a realistic and practical manner, and in my opinion the evidence shows that, at present, the plaintiff is unwilling or unable to do that."
The application was dismissed.
On 23 December 1997, 12 March 1998 and 14 December 2000 the Protective Commissioner made advances from the common fund to the plaintiff of $590, $620 and $20,000 respectively. A report of the Office of the Protective Commissioner dated 12 December 2000 noted that since June 2000 the plaintiff had been in communication with the Baulkham Hills Shire Council in relation to the retaining walls on her property. She obtained a quote from Turner Design Landscapes to pull down the existing retaining walls on the property and build them again at a price of $35,000. She did this without consultation with the Office of the Protective Commissioner. Turner Design Landscapes commenced work, but stopped when it ascertained that a required 10 per cent deposit had not been credited to its account. The Office of the Protective Commissioner advised the Baulkham Hills Shire Council that the plaintiff had insufficient funds to pay for the work she had requested. On 30 November 2000 the Baulkham Hills Shire Council issued an emergency order directing that the work be carried out to the retaining wall to provide support to unstable land along the north-western boundary of the property. The Protective Commissioner advanced $20,000 because the work was urgently required and the property was dangerous and in an unstable condition. The debts to the Protective Commissioner are secured by a charge over the property and now a registered mortgage. The debt attracts interest but is not repayable prior to the plaintiff's death, or the sale of the Castle Hill property, whichever occurs first. As at 31 December 2011 the amount owed to the NSW Trustee was $47,379.56.
On 9 October 2001 the Office of the Protective Commissioner wrote to the plaintiff's solicitor. It said that the plaintiff "... has consistently over a period of some years sought to have often unnecessary work performed on her property in circumstances where she has no capacity to meet the cost. This office is aware of the following debts ... ". There then followed a list of nine debts totalling $12,925.70, in addition to the debt owed to the Protective Commissioner. The Protective Commissioner warned that if such debts were incurred, there might be no option but to sell the Castle Hill property. The plaintiff's only source of income was a disability support pension paid by Centrelink. At this time the Protective Commissioner was making payments from the plaintiff's pension of $20 per week for a debt due to Australian Hi Tech Kitchens.
In or about August 2006 the Protective Commissioner became aware of a judgment entered in the Parramatta Local Court against the plaintiff by a business called Aurora Kitchens in respect of the installation of kitchen benches and cupboards pursuant to a contract dated 11 November 2004. The judgment, including interest and costs, totalled $10,858.87. After some years the Protective Commissioner negotiated a repayment arrangement with Aurora Kitchens whereby Aurora Kitchens accepted a payment of $3,000 together with a further $6,504 to be paid by weekly payments of $15 from the plaintiff until that amount was repaid. On 16 March 2009 the plaintiff was advised of this arrangement and was advised that she should seek agreement from the Office of the Protective Commissioner before signing or agreeing to anything. She was warned that otherwise the Office might be unable to resist proceedings against her which could result in a judgment debt being entered which would ultimately lead to the sale of her house. The sum of $3,000 was paid on 16 March 2009. Weekly payments of $15 continue to be made in reduction of the debt.
Another judgment was obtained against the plaintiff in the Local Court on 30 July 2009. This was in respect of a debt claimed by Newcombe's Plumbers. The unpaid account was for $1,485. With interest and costs, default judgment was entered for $2,373.04. Another repayment arrangement had to be made in respect of this debt which has now been paid off. Again the debt was incurred without consultation with the Protective Commissioner.
In 2009 a debt was incurred to the Baulkham Hills Shire Council with the approval of the Protective Commissioner. The Council had given notice requiring the immediate reconstruction of failing retaining walls. The Council agreed to pay for the required work. A second mortgage was given over the Castle Hill property in favour of the Council to secure a debt up to $47,928. I was informed that this debt does not carry interest and is repayable only on the sale of the property or the plaintiff's death.
On 17 December 2009 a painter, Mr Tony Al Bayeh, provided a handwritten invoice to the NSW Trustee and Guardian requesting payment of $12,600 for painting work undertaken at the plaintiff's home. This work was done without the approval of the NSW Trustee. The request for payment of the invoice was initially refused. On 19 May 2009 the NSW Trustee had agreed to pay and paid $2,300 to cover the cost of the paint used in the work. On 4 November 2010 the Office of the NSW Trustee agreed to pay $1,000 to Mr Al Bayeh and to acknowledge a liability of the plaintiff for a further $2,000 to be honoured either on the sale of the Castle Hill property or the plaintiff's death. I am informed that the sum of $1,000 was paid. I was told there had not been a response in respect of the proposal to acknowledge a debt of $2,000 in satisfaction of the claim.
In her affidavit of 6 February 2012 in support of her application for a declaration that she is capable of managing her affairs, the plaintiff deposed that she had not received correspondence from the NSW Trustee for a number of years. She said that the Protective Commissioner had refused to state the amounts held for her or to provide her with any investment reports. She said that in May 2011 upon her current solicitor's request, she received brief confirmation that the NSW Trustee holds funds, but no reports or explanation of how her money is managed.
On 23 February 2005 the Office of the Protective Commissioner provided a printout of what was called "the entire transaction statement" from the time the Protective Commissioner first received funds up to 7 February 2005. A later updated transaction statement was provided on 4 June 2012. It shows each receipt and expenditure. Ms Phang, Principal Legal Officer with the NSW Trustee and Guardian, deposed that statements of account including an asset summary were sent to the plaintiff every six months at the end of December and June each year and a copy of a budget was also sent to her every 12 months. Ms Phang was not cross-examined. I accept her evidence.
The budget for the period of 1 December 2011 to 30 November 2012 shows budgeted annual income consisting of Centrelink receipts of $18,818.80 and investment income of $322.66, a total of only $19,141.46. The plaintiff has to live within this very limited budget. The NSW Trustee receives on the plaintiff's behalf a fortnightly pension now of $730.50. From this it pays the plaintiff a weekly allowance of $160. It deducts a weekly sum of $15 in reduction of the debt owed to Aurora Kitchens. Until recently it deducted a further $60 every four weeks to meet the debt that was payable to Newcombe's Plumbing. The balance of the pension is applied in the payment of council rates, water rates, building insurance and electricity charges as they fall due. The management fee payable to the NSW Trustee is also deducted from this income. For the 12 months to 30 November 2012 it was budgeted to be $101.82. This means that the plaintiff has only $160 per week with which to buy food and groceries and to pay her telephone accounts and other incidental expenses. The plaintiff says that she has a well-developed plan of saving money. She has an account with the ANZ Bank into which payments from the NSW Trustee are made and from which she makes withdrawals. She lives within these very tight constraints, but struggles financially.
The cash funds held for the plaintiff by the NSW Trustee as at 31 May 2012 totalled $9,824.31. This cash balance has increased gradually over the last six years.
In support of her application the plaintiff attached reports of a Dr Peter Hanson and a Dr John Pickering dated 28 June and 28 July 2011 respectively. They had assessed the plaintiff's capacity to be a kidney donor. This was something that she had had in mind doing for a number of years.
The plaintiff suffers from a physical disability and walks with considerable difficulty using a quadripod. She shops by ordering on the telephone and has someone come in to attend the garden and mow the lawns. Dr Hansen reported that she had scored full marks on a mini mental state examination. Dr Hansen said that the plaintiff:
"... has adjusted well to her injury and has been helped by a long term mild euphoria resulting from her brain damage (just as her hemiplegia is also a result of her brain damage) has adopted a lifestyle which is profoundly and deeply religious and her wish to donate a kidney is quite in line with her religious beliefs."
It was his opinion that:
"In my view her cognitive abilities are intact, there is a degree of disinhibition which is in line with the diagnosis of frontal lobe syndrome and I think that her profound faith and her constant euphoria has helped her to cope remarkably well with her injuries. She is aware of what is entailed in kidney donation and she is also aware that she should be able to live as long with one kidney as she would with two.
I cannot help but admire the way that she has coped with a severe disability. She seems to bear no ill will, she manages her money quite well although there is a trustee guardian who controls her access to her money which is sourced partly from social security and partly from damages from the original accident."
It appears this information was given to Dr Hansen by the plaintiff and is accurate so far as it goes.
Dr Pickering expressed the opinion:
"She has some deficits of higher centre function, but overall, these are quite minor. They are more in the area of disinhibition rather than exhibiting chronically poor judgment. She certainly had adequate cognitive function for me to be very convinced that she was capable of making the kind of decision involved in this matter [viz. organ donation]. I did not find any impairment of judgement, and there is nothing to suggest that she has any significant deficits of impulse control. ... The reasons she has for making the decision to become a living donor are altruistic and appropriate.
One has to admire the way that [the plaintiff] has coped with life. She is capable of living alone, she has obtained a diploma in bible studies and she manages her life. There is nothing that I could find that would suggest to me that she has any impairment of memory, thinking, or other aspects of cognition that would render her incapable of making a decision about becoming a living donor."
The plaintiff also annexed to her affidavit a report from a Dr Hughes dated 20 February 2006 who stated that in his opinion the plaintiff was capable of managing her own affairs. He said:
"I base this opinion on my observations that she displays more than adequate command of her situation in spite of the difficulties she has suffered in the past and I have noted that she appears to be gaining further control as time passes. Although she does have some physical disability remaining, she has overcome many of these and has lived around the others. Mentally she is alert and intelligent, and gives evidence of sound judgement of her affairs. She has her life really well organised.
...
I believe her to be capable of managing her own life affairs and it appears that the only blight on this is the fact that a court ruling has taken financial management out of her hands.
This might have been fitting at the time it was decided, but now appears extraordinarily inappropriate."
Dr Pickering is a psychiatrist. He provided an affidavit dated 15 February 2012. In his affidavit he said:
"3. I examined [the plaintiff] on 19/07/11 and conducted a psychiatric assessment specifically with a view to examining her cognitive and higher centre function.
4. In my opinion and based on my detailed history and mental state examination of [the plaintiff] I believe that she has the cognitive ability and judgement of such a degree that she can manage her own finances/banking, ie pay bills herself, attend bank, make an informed decision what to purchase and how to prioritise purchases, she is capable of planning investment strategies."
A psychologist, Dr John Jacmon, also provided an affidavit. He said:
"3. [The plaintiff] was assessed by me on 1 December 11.
4. In my opinion she is capable of managing her own financial affairs. Her cognitive capacity enables her to manage money, pay bills, make an informed decision as to what to purchase, discuss and plan how to spend/invest money eg on food and clothing. Her physical disability impedes her physical movements and requires her to be assisted to travel to attend matters which require face-to-face meetings such as in attending banks and other institutions. She is fully capable of representing her interests in such meetings.
5. My opinion is based on (i) the results of psychometric tests which are presented in the attached report, (ii) observations, and (iii) experience in assessing a large number of individuals over a wide range of cognitive capacities."
Dr Jacmon had assessed the plaintiff through clinical interview and the completion of psychological tests. In his report of 2 December 2011 he concluded that:
"1. Conclusions
The assessment by testing and clinical interview has gathered considerable information on [the plaintiff's] functioning including her capacity to manage her finances. On the basis of the results, the research and the background the following can be stated:
1. A comprehensive personality assessment undertaken by [the plaintiff] did not indicate any mental disorders which are affecting her mental health and hence could conceivably affect her capacity to manage her financial affairs.
2. [The plaintiff] completed IQ (Intelligence) tests. In relation to her age group the results were:
(i) a verbal reasoning IQ score of 98 which placed her in the average band
(ii) a non-verbal reasoning IQ score of 83 which placed her in the low average band. Non-verbal IQ reasoning is relatively independent of specific learning acquired in a particular cultural or educational context. This score highly likely [underestimated] considerably her actual non-verbal reasoning IQ because the test required full eyesight capabilities and she lacks peripheral vision in one of her eyes. Her actual non-verbal reasoning IQ is estimated to lie within the average band.
(iii) An overall IQ score of 98 which placed her in the average band.
3. No indication became apparent during the assessment which would place doubt on her capacity to manage her financial affairs."
After the papers were referred to me I ordered that Drs Pickering and Jacmon provide further reports stating what inquiries they made of the plaintiff and what information she provided as to her assets, liabilities, income, expenses and plans for management of her financial affairs, in arriving at their opinions as to the plaintiff's ability to manage her financial affairs.
Dr Pickering reported that the issues raised by the court had not been specifically addressed in his earlier interview with the plaintiff and said "nor indeed should they have been". Whilst this is understandable, in the context of his previously having assessed the plaintiff's mental state for the purposes of determining her capacity to give consent to becoming a live kidney donor, it is surprising that the doctor could have expressed the views he did in paragraph 4 of his affidavit of 15 February 2012 without having made such basic inquiries. Dr Pickering provided his further report on the basis of a further half hour telephone interview with the plaintiff. In his further report, after repeating the opinion expressed in his earlier report (at [20] above), Dr Pickering said:
"There is nothing that I could find that would suggest to me that she has any impairment of memory, thinking, or other aspects of cognition that would render her incapable of dealing with her own finances. She believes that her finances are currently under the control of NSW Trustee and Guardian (formerly the Office of the Protective Commissioner).
Specific matters with respect to the enquiry by the court:
1. Assets: She is aware that she owns her own home and made all the arrangements for its purchase. She knows that she has some money in trust, but has no idea of the amount, stating that this has been withheld from her.
2. Liabilities: She has no debts of which she is aware, all of her liabilities having been paid for by the trustee.
3. Expenses: She is currently aware that she has ongoing expenses and has listed them to include the gardener, the utilities bills, council rates, pharmacy bills, food, clothes, and transport. The utilities are paid annually by the trustee, and her recent enquiries with the utility companies suggests that they are not paid on time, much to her disappointment.
4. Income: She is given $160 per week by the trustee for food and incidental expenses. She is uncertain where the balance of her pension, which is approximately $740 per fortnight, goes. She is uncertain if there is any income from investment, stating that the details of the financial affairs have been withheld from her.
5. Future Investment: She stated that this is a matter for discussion with her bank, but her plan if there is any capital to invest is to have a mixture of long-term and medium term investments, and a low-balance cheque account for her immediate expenses. Her plan is to reinvest any income that is not required for ongoing expenses.
6. Protection of assets: I specifically enquired what measure she would take to protect herself financially, given that she plans to marry. She has stated that there is a prenuptial agreement in place, but I was not privy to the precise details.
All of the above support her claim that she is capable of managing her own financial affairs. My only concern is that she does not actually know the full extent of her assets. If she has no capital assets or investments with the trustee, then she needs to be appraised of that, irrespective of the outcome of the court hearing. I would further recommend that the prenuptial agreement be examined to make certain that it adequately protects her financially.
It is not the role of the writer to comment on the desirability of her assets being taken out of trust in part or in entirety. It is however my considered opinion that she is as capable of looking after her own assets and income as the average person in the community, however desirable it may be that if there is a substantial amount held on her behalf in trust should remain in trust for her protection."
Dr Jacmon also provided a supplementary report. He did not address the question I had raised that he state what inquiries he had made of the plaintiff about her assets, liabilities, income, expenses and plans for management in arriving at his previous opinion. I infer from the absence of such a response, and the absence of any such detail in his first report, that he had not made those inquiries at that time. It appears that Dr Jacmon made those inquiries of the plaintiff in providing the supplementary report. He said:
"Below are the responses to the Court's questions regarding enquiries and information provided as to [the plaintiff's]: (i) assets, (ii) liabilities, (iii) income, (iv) expenses and (v) plans for management of her financial affairs. Each of these issues is addressed below.
(i) assets
[The plaintiff] owns her own home the deeds of which are with the NSW Trustee and Guardian. She has no assets other than furniture and household goods which were purchased before her financial affairs came under the care of the NSW Trustee and Guardian. She could not place a monetary value on these goods but stated that their personal value is inestimable.
(ii) liabilities
[The plaintiff] stated that she had no outstanding debts.
(iii) income
[The plaintiff] stated that a sum of $740 per fortnight is received by the NSW Trustee and Guardian on her behalf. Of this sum she is forwarded $320 for her living expenses. This sum has not varied. She has never been informed by the NSW Trustee and Guardian of any interest details of the moneys nor of the total amount in the trust.
(iv) expenses
[The plaintiff] stated that the NSW Trustee and Guardian pays services including electricity, rates and water. Of the $320 she receives she budgets at the rate of $160 per week. From this amount she pays for living expenses including groceries, lawn mowing, medical and transport. She has managed these expenses for the last 23 years.
(v) plans for management of her financial affairs
As soon as she has received the moneys in trust from the NSW Trustee and Guardian [the plaintiff] intends to go to her local bank and open three accounts:
1. A long-term account in which she plans to deposit the bulk of her funds and allow the interest to roll over. She would not seek to draw from this account except in dire circumstances.
2. A monthly account in which she would instruct the bank to deposit a proportion of her income.
3. A daily (cheque) account in which the bank would deposit the (likely) larger part of her income to be used to fund her living expenses. Should this account be depleted at any time, eg by a large account needing payment, the bank would be instructed to move funds from the monthly account to her daily account. In exceptional circumstances the bank would be instructed to move money from the long-term account to the monthly or daily account."
In his covering letter Dr Jacmon said:
"As you will see in the report [the plaintiff] is well capable of managing her financial affairs and this is consistent with the findings in the earlier report. Nothing has emerged in either assessment which would point that she would have difficulty in managing her financial affairs."
In her affidavit of 6 February 2012 the plaintiff deposed:
"29 If the orders are revoked and I would be allowed to use the money I plan to divide the amount into 2 parts. The bigger sum of money I would put in ANZ Bank for long-term deposit. The money will generate interest that I would be able to reinvest.
30 The smaller amount, like $4,000 or $5,000 I would put in a monthly account like every day saving account, I would be able to use the money in accordance with priority list: 1st priority would be paying for the Bills, 2nd paying for groceries and 3rd money left for incidentals only.
31 If the orders are revoked and I am allowed to use my money, I would:
i. Firstly, estimate the amounts to be payable for Council rates, Integral Energy electricity, Sydney Water and telephone. I understand that I would need to pay all Bills as a matter of priority expense.
ii. Secondly, I will estimate what amount is left and then will be able to plan my food purchases and how much money I can spend per week. If some money is left I will be able to buy myself some cloths [sic] as all my [clothes] are donated, second hand or were bought many years ago by my mother when I was a child.
iii. Thirdly, sometimes I would have incidental expenses; I might need to buy something for the house, garden or pay vet for treatment of my dog. These expenses I would plan carefully as they are not priority expenses."
In her affidavit in reply the plaintiff said that until she had read Ms Phang's affidavit of 31 March 2012 she was of the belief that the NSW Trustee held about $180,000 on trust for her. She said that while she accepts that the Protective Commissioner received only $165,500 in 1990, by her calculation the amount should have been more like $347,000. She said that the Castle Hill property was purchased for $132,000 in about 1987. She says that about $182,000 of the funds she was awarded remain unaccounted for. According to her affidavit she said that she accepted that there may well be reasons why those funds had to be expended on her behalf between 1982 and 1990 and this was a likely explanation.
However, it is clear that the plaintiff still believes that there are more assets held for her than the sum of approximately $9,000.
The application is made pursuant to s 86 of the NSW Trustee and Guardian Act 2009. It provides:
"86 Revocation of orders by Supreme Court
(cf PE Act, s 35)
(1) The Supreme Court, on application by a protected person and if the Court is satisfied that the protected person is capable of managing his or her affairs, may:
(a) revoke any declaration made that the person is incapable of managing his or her affairs, and
(b) revoke the order that the estate of the person be subject to management under this Act, and
(c) make any orders that appear to it to be necessary to give effect to the revocation of the order, including the release of the estate of the person from the control of the Court or the manager and the discharge of any manager.
(2) For the purposes of this section:
(a) evidence of a person's capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and
(b) the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with any such examination, and
(c) the Court may otherwise inform itself as to the person's capability to manage his or her own affairs as it thinks fit."
The NSW Trustee and Guardian took a neutral attitude to the application. Its legal representative did not cross-examine the plaintiff. Accordingly, I exercised the power in s 86(2)(b) personally to examine the plaintiff.
Section 86 is in material respects the same form as the former s 35 of the Protected Estates Act 1983. Similarly, s 41 of the NSW Trustee and Guardian Act is in all material respects the same as s 13 of the former Protected Estates Act. Section 41(1) provides:
"41 Orders by Supreme Court for management of affairs
(cf PE Act, s 13)
(1) If the Supreme Court is satisfied that a person is incapable of managing his or her affairs, the Court may:
(a) declare that the person is incapable of managing his or her affairs and order that the estate of the person be subject to management under this Act, and
(b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee."
I asked the plaintiff how she would use the whole pension if she were granted access to it. In the course of answering that question she said that:
"I will put the moneys, all the moneys transferred, ..., not $9,000, but all the moneys they have in trust and transferred into my bank account, I'll invest a large amount into a long-term deposit."
I asked her how much she thought she would have to put into a long-term deposit. She said that the lawyer showed her a statement showing $10,000. She said that she did not accept that.
Whilst the plaintiff did not repeat the claims she made before Hodgson J, that the Protective Commissioner had $5 million of her assets under its control, I am satisfied that she still believes that the NSW Trustee has the control of her assets for which it has not accounted. The plaintiff says, and told Dr Pickering, that she has no idea of the amount held on trust for her and states that this information has been withheld. The information was not withheld. The plaintiff states in her affidavit of 20 June 2012 that it was not until she received the information in Ms Phang's affidavit that she was aware of how much of her award remained under the Trustee's control. As noted earlier in these reasons, Ms Phang deposed that statements of account, including an asset summary, were sent to the plaintiff twice yearly. Whilst she did not produce the statements sent to the plaintiff, I think that evidence is inherently likely. Moreover, the NSW Trustee or the Protective Commissioner from time to time has written to the plaintiff because she was attempting to incur debts. Thus, on 22 August 2006 the Protective Commissioner wrote to the plaintiff stating:
"You would be aware however that aside from your house you have no assets aside from a nominal amount of $1,054 in your OPC Trust account and in fact you have outstanding debts of $33,754.60 which includes an advance of $30,942.58 from the Protective Commissioner's trust funds."
The plaintiff is of the view that the NSW Trustee is investing her money in shares like BHP, Ford Motors, IBM, Microsoft and other companies, and taking what she called the income from those investments, and not accounting to her for it (T8-9). The plaintiff said that "I believe that very strongly and without a doubt". She said that the reason for that belief was "a spiritual thing".
The plaintiff denied owing any debts. After service of Ms Phang's affidavit which set out debts the plaintiff owed, the plaintiff told Dr Jacmon and Dr Pickering that she had no outstanding debts.
The plaintiff has no recognition that she owes moneys to the NSW Trustee for the advances made by the Protective Commissioner in 1997, 1998 and 2000 and interest that has accrued, nor that she owes money to the Baulkham Hills Shire Council for the moneys spent by the Council in obtaining reports and carrying out the work on retaining walls. This is so notwithstanding that Ms Phang sets out how those debts were incurred and shows that they are secured by mortgages over the Castle Hill property. Consistently with her non-recognition of those secured debts, the plaintiff seeks an order that on the revocation of the existing financial management orders, the NSW Trustee hand over to her the certificate of title to that property. As first mortgagee it is entitled to retain the certificate of title.
The plaintiff did not accept that she owed the debt that is being paid off to Aurora Kitchens. As I understood what she said, she claims that Aurora Kitchens and the painter, Tony Bayeh, have been paid. She said that they acknowledged having been paid and that she had been sent statements showing that they had been paid. She said she did not keep those statements because they had been paid. She did not explain how Aurora Kitchens or Mr Bayeh had been paid. Her position with respect to the moneys payable to Aurora Kitchens under the arrangement that has been negotiated by the NSW Trustee, as I understand it, is that she was unaware that judgment had been obtained against her. She says that by six statements she received from "the Trust Company" she thought that both the painter and Aurora Kitchens were paid. So far as I could understand her explanation (T6-7) it was that because she received statements from the NSW Trustee showing that payments had been made to Aurora Kitchens and to Tony Bayeh, and because she telephoned them and they confirmed that they had received the payments shown on those statements, that meant that the debts had been paid off. Of course she did not pay those debts. She had no money with which to do so. I do not accept that she was sent statements that showed that the debts had been discharged. She was told on 16 March 2009 that the Protective Commissioner had negotiated an arrangement with Aurora Kitchens whereby they accepted an immediate payment of $3,000 together with a further $6,504.13 to be paid off by weekly instalments of $15.
The position with Mr Bayeh is somewhat more obscure because it is not clear what amount he was entitled to charge. He has been paid $2,300 for paints and the NSW Trustee has paid a further $1,000 and offered an acknowledgment of a debt of $2,000 in compromise of his claim. It is not clear that any further moneys are owing, quite apart from the difficulties that a creditor would have in enforcing what would have to be a restitutionary claim for further moneys.
The plaintiff's inability to appreciate the arrangements with Aurora Kitchens raises at least significant doubt as to her capacity to make a rational assessment of that debt. She says that she will pay whatever is due, but I am not satisfied that she is capable of appreciating what is due.
If the question to be decided is whether the plaintiff is capable of managing her own affairs, I would conclude that she is not so capable. I consider that she still has an irrational belief that there are presently concealed assets that should be available to her which would relieve her presently stringent financial circumstances. She has shown in the past that she is prepared to incur substantial expenses when she does not have the money to meet those expenses. I attribute this to her belief that there should be available money under the control of the NSW Trustee to meet the expenses. This has resulted in the NSW Trustee having to negotiate payment plans with creditors. The plaintiff does not appreciate her existing liabilities. She does not recognise that she owes debts.
On the other hand, the unchallenged medical evidence is that the plaintiff has no cognitive impairment, that is, no incapacity, that should prevent her from dealing in a reasonably competent fashion with the ordinary routine affairs of a man or woman.
Sections 41 and 86 of the NSW Trustee and Guardian Act require an assessment of whether a person is capable or incapable of managing "his or her affairs". Uninstructed by authority, one would think that the question is whether the person is capable or incapable of managing his or her own affairs, not the hypothetical affairs of an abstract persona. That appears not to be the law in this State. In PY v RJS [1982] 2 NSWLR 700 Powell J had to consider whether the plaintiff was entitled to be discharged from involuntary detention in a mental hospital. Section 18 of the Mental Health Act 1958 provided that the court could order the immediate discharge of a person from an admission centre, mental hospital or authorised hospital if it appeared that the person was not a "mentally ill person". The phrase "mentally ill person" was defined relevantly as being "a person who owing to mental illness requires care, treatment or control for his own good or in the public interest, and is for the time being incapable of managing himself or his affairs and 'mentally ill' has a corresponding meaning." Powell J foreshadowed the later publication of detailed reasons, but if they were delivered, they are not available to me. Relevantly, Powell J said (at 702):
"7. It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:
(a) that he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and
(b) that, by reason of that lack of competence there is shown to be a real risk that either:
(i) he or she may be disadvantaged in the conduct of such affairs; or
(ii) that such moneys or property which he or she may possess may be dissipated or lost (see Re an Alleged Incapable Person);
it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner: see In the Matter of Case (1915) 214 NY 199, at p 203, per Cardozo J"
His Honour concluded that the plaintiff's affairs could be managed more efficiently, but nonetheless the plaintiff was able to deal in a reasonably competent fashion with the routine affairs of man and there was no real risk of his money or property being lost or dissipated. His Honour found that although suffering a mental illness, the plaintiff was not incapable of managing his affairs.
Re An Alleged Incapable Person (1959) 76 WN (NSW) 477 does not support the proposition that a person is not shown to be incapable of managing his or her own affairs unless at least it appears that he or she appears incapable of dealing in a reasonably competent fashion with the ordinary routine affairs of man. The question of what had to be shown to establish that a person "is unable to manage his affairs" was simply not addressed. Myers J was satisfied that the person in question was not so capable, but did not attempt to specify what needed to be shown. In Re MacGregor [1985] VR 861 Starke J was of the view that Myers J applied "the subjective test" (meaning ability to manage the person's actual affairs). I think this distinction was not addressed in Re An Alleged Incapable Person.
In the Matter of Case (1915) 214 NY 199 was an appeal from an order appointing a committee to the property of an alleged incompetent person. The relevant statute conferred jurisdiction in respect of the "care of the property, of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy, habitual drunkenness, or imbecility arising from old age or loss of memory and understanding, or other cause". Mr Case had married relatively late in life and the feud was between his wife and his sisters. It seems he had little education and a series of failed business ventures. He then settled down on his father's farm where he lived without mishap. The Court of Appeals of New York allowed the appeal because there was no evidence that could reasonably satisfy a jury that Mr Case lacked capacity to manage his affairs. All there was was an earlier history of successive failed business ventures. Cardozo J, giving the judgment of the Court, said (at 203):
"One is not incompetent, within the meaning of the statute, to manage one's affairs because one is lacking in the sagacity that makes for success in business. (Matter of Clark, 175 N.Y. 139.) Insecure would be the tenure by which property is held if the evidence in this record could forfeit its control."
As Powell J said (at 702), lack of capacity to manage one's affairs is not shown merely by demonstrating that the person does not deal with even simple or routine transactions in the most efficient manner. There is a high threshold to be met before that conclusion can be reached.
In Re MacGregor, Starke J declined to follow CF v TCML. His Honour's first reason was that the section to be construed, namely s 28(1) of the Public Trustee Act 1958 (Vic) empowered the Public Trustee to certify a person as an infirm person if the person "is by reason of ... physical or mental infirmity incapable of managing his affairs ...". Starke J said (at 866) that the section:
"speaks of 'managing his affairs', not the 'ordinary routine affairs of man'. The Court under the Act is exercising its protective jurisdiction in respect of individuals, not a class of persons albeit before jurisdiction is exercised it must be shown that the person is an infirm person for the purposes of the Act."
Starke J applied an opinion attributed to Lord Wilberforce that:
"The question of degree of incapacity of managing and administering a patient's property and affairs must be related to the circumstances including the State in which the patient lives and the complexity and importance of the property and affairs which he has to manage and administer".
In Re M and The Protected Estates Act 1983 (1988) 12 NSWLR 96 Powell J adhered to the views he had expressed in PY v RJS. Essentially two reasons were given (at 101-102). The first was that the phrase "incapable of managing his affairs" in the Mental Health Act had been judicially interpreted prior to the passing of the Protected Estates Act. There was no material difference between the previous Act and the Protected Estates Act. Parliament may be taken to have enacted the new legislation on the basis that it intended the words be given the same interpretation as they had been given formerly.
The second substantive reason was (at 102):
"... I must reluctantly dissent from that view, for I find myself unable to accept that the intention of the Parliament, as expressed in the Protected Estates Act 1983, was that a person who does not suffer from mental illness, mental infirmity, mental retardation, or some other like condition, but who, although otherwise capable of leading a normal life and managing his affairs, is, for some reason, as, for example, a limited education, incapable of managing or administering a large or complex estate which may fortuitously come his way, should be liable to be deprived by the Court of all power to manage his life and affairs."
Powell J did not address the point made in Re MacGregor that the test as formulated in PY v RJS substituted a different concept for the words actually used in the statute.
However, in this State the test as formulated in PY v RJS and repeated in Re M and The Protected Estates Act 1983 has been repeatedly endorsed, so much so that Campbell J (as his Honour then was) was moved to say in Re GHI (a protected person) [2005] NSWSC 581 that (at [5]):
"A test which has been followed so often is one which a judge of first instance like myself must follow."
Although the test has been endorsed, it does not appear to me that it has always been applied. In H v H (Supreme Court of New South Wales, Young J, 20 March 2000, unreported) the applicant sought an order under s 35 of the Protected Estates Act. The applicant, H, adduced medical and psychological evidence to the effect that he was quite capable of handling his own finances and was capable of making reasonable decisions regarding the disposition of his moneys in relation to his family and general responsibilities. The evidence was not rejected. Other evidence that appears to have been accepted included evidence that H regularly reviewed the family budget and gave directions as to the size and application of regular allowances and attended to the payment of household bills. H wanted control of a capital sum managed for him by the Protective Commissioner. He had proposed from time to time using the capital either to buy a taxi plate, or to invest in a unit, or to acquire a trucking business. Young J rejected the submission for the Protective Commissioner that he should prefer "a stronger test than that which is usually applied stemming from PY v RJS", but went on to say:
"However, when looking at that test, the ordinary affairs of mankind do not just mean being able to go to the bank and draw out housekeeping money. Most people's affairs are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family, and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills.
In the present case, H will not be entitled to social security until 2005. Apart from his house, he only has capital of $200,000 to produce income. If he was to invest it in a taxi plate, not only would this $200,000 be used but he would also have to mortgage his house to at least $60,000. He would then have to generate enough income to pay for the mortgage, as well as support his family and guarantee his income through till 2005.
The figures for a trucking business are even more rubbery, but again, there would need to be investment provisions for contingencies and other matters, which do not really seem to have been investigated fully by H, or even to the extent one would expect a person who was capable of managing his affairs, to the ordinary standard of mankind, would have done. Most people in that position would be very careful before endangering their income or their house by investing in a relatively speculative business.
There was some evidence which suggested that H could obtain income by having the truck that he was going to buy registered with one of the larger carriers. However he did not appear to realise that this is often one of the classic traps for small business people. In short, the way in which H seems to have thought about his business involves more a person's hope, driven by a wish to be self reliant and the decision maker, than understanding reality.
As Mr Durie put it, there seems to be a lot of fluid thinking about possible businesses, and there is no demonstration of an ability of forward thought. This is something that the psychological evidence that is presented by the respondent bears out."
In other words, the decision as to H's capacity to manage his affairs was measured not by reference to some hypothetical or abstract notion of the ordinary routine affairs of man, but according to whether or not H would have the capacity to do what he proposed to do.
Similarly, in Re GHI (a protected person) there was a significant risk that if the applicant for the revocation order obtained access to his capital, he would use the funds to acquire a small business which he would be incapable of managing, with disastrous consequences for him if the capital were thereby lost. Campbell J said (at [115]-[117]):
"[115] Investing money in a small business, and incurring obligations in the course of running such a business, are part of the ordinary routine affairs of man. ...
[116] I recognise that, in some cases under s 35, no specific attention might be given in the evidence to whether the person in question has the skill to decide whether to invest in a small business, or to run it. In cases which involve the pensioner living in a retirement village, considered by Young J in EMG v Guardianship Board of Victoria (para [7] above), it is usually perfectly appropriate for the court to reach a conclusion that the person in question is capable of dealing with the ordinary routine affairs of man on the basis of evidence of a general kind, without specific enquiry into whether the person has the ability to deal with absolutely the full range of the ordinary affairs of mankind. That is because those skills that are omitted from the range of specific enquiry are ones that there is no practical likelihood of the person in question needing to exercise in the course of running his or her affairs. For that reason, there is no real risk that any lack of skill that they might have, in the areas not specifically investigated, will cause the person any disadvantage in conducting his or her (actual) affairs, or cause the person to dissipate or lose money or property. However, once the particular plaintiff shows that he or she wants to engage in a particular type of activity, there is occasion for the court to enquire whether the person has the capacity to deal with the type of routine affairs of man which are likely to arise in that type of activity.
[117] This analysis of the requirements of s 35 does not involve a possibility of the court concluding that someone with a large amount of property to administer, and who lacks the ability to deal with it by reason if its size and complexity, is held to be incapable of managing his or her affairs - the vice which Powell J in M and the Protected Estates Act 1983 (para [6] above) saw as involved in what his Honour took to be the Victorian approach to whether a person was incapable. Rather, it looks only at those types of skills which fall within the range of those needed to deal with the ordinary routine affairs of man, enquires whether the plaintiff has satisfied the court that he or she has those skills, and looks at whether any lack of such skills is one which causes the risk of the person being disadvantaged in the conduct of his or her affairs, or dissipating or losing money or property. That is a precise and literal application of Powell J's test."
This brings the test closer to the words of the statute. If the plaintiff's affairs are less complex than the ordinary routine affairs of man, the question will be whether the plaintiff can manage his or her actual affairs. By finding that the ordinary routine affairs of man included investing in and carrying on a business, his Honour was able to address the question whether the plaintiff would be able to manage the affairs he proposed and would be at risk of dissipating his property if he were not. It is not clear why his Honour included the investing in and carrying on of a business as part of the ordinary routine affairs of man. That would be done by only a minority of the population. But the wider that concept is described, the greater the scope for asking whether the plaintiff is capable of managing his or her actual existing or proposed affairs.
In P v R [2003] NSWSC 819 Barrett J, after referring to the relevant authorities, restated the question in terms which closely approximate the statute. His Honour said (at [26]):
"[26] The task of the court, upon an application such as this, is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property. This is a somewhat shorthand version of the tests laid down by the authorities to which I have already referred. The point to be emphasised is that the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter." (My emphasis.)
I adopt his Honour's formulation. The ordinary routine of living, so far as the plaintiff's property is concerned, includes making decisions on what expenses can be incurred on a very limited budget. The plaintiff's ability to make such judgments will be dependent on her being able to appreciate what assets are available to her. Her ability to make judgments concerning the ordinary routine affairs of living will also be dependent on whether she is capable of recognising that if she incurs debts she cannot pay, or does not pay the debt to Aurora Kitchens, her house will be at risk. I do not think the plaintiff has that appreciation and I infer that that is because as a result of her brain injuries, she is not capable of making that assessment.
Mr Othen, who appeared for the plaintiff, submitted that the test enunciated by Powell J in PY v RJS as applied by Campbell J in Re GHI required the court to find a lack of competence in dealing with the "ordinary routine affairs of man" and that this lack of competence caused the risk of disadvantage, dissipation or loss. He also submitted that:
"The test is to be put in the context of the general principles of s 39, which do not speak of dissipation or loss of moneys as the evil to be guarded against, but graver risks of 'neglect, abuse and exploitation', and which support the Court as far as possible giving autonomy in one's affairs, if consistent with one's welfare and interests."
Section 39 of the NSW Trustee and Guardian Act provides:
"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 exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation."
Section 39 becomes relevant if on an application under s 86, the Court is satisfied that the protected person is capable of managing his or her affairs, and the Court needs to consider whether to exercise what is described as a discretion to revoke a declaration of incapacity and a financial management order. It would be difficult to envisage a circumstance in which a declaration or order under s 86 would not be made if the criterion of being satisfied that the protected person is capable of managing his or her affairs is satisfied. Section 39 applies to the exercise of functions under the Act with respect to protected persons or patients. The welfare and interests of such persons are to be given paramount consideration (s 39(a)). The freedom of decision and freedom of action of such persons should be restricted as little as possible, and such person should be encouraged, so far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs (s 39(b) and (f)). The principles in s 39 would be relevant to the exercise of the discretion by the Court under s 41 as to whether to order that the estate of a person be subject to management under the Act, if the Court were satisfied that the person is incapable of managing his or her affairs. However, I do not think it is relevant to the determination of whether or not the Court should be so satisfied.
Mr Othen also submitted that it was the lack of information available to the plaintiff about the size of her award that had led her in the past to consider herself better off than she was. In particular, he said, that the plaintiff had not been given an account of expenditure whilst her affairs were under the management of Perpetual Trustee Company Limited. He submitted that the plaintiff has shown herself to be realistic about her affairs once provided with the information in Ms Phang's affidavit, and this is demonstrated by her affidavit of 27 June 2012. He also submitted that many of her answers to questions I asked, which showed that she was not aware of her debts, or believed that she was being exploited by the NSW Trustee and was entitled to much more money than in fact she is, were to be attributed to the dysfunctional relationship between her and the NSW Trustee.
These submissions were advanced very ably, if I may say so, but I do not accept them. Whilst there is a dysfunctional relationship between the plaintiff and the office of the NSW Trustee, the question is why that is so. In my view, the answer is because the plaintiff does not have a rational appreciation of the assets under management and this is not due to the asserted absence of an accounting from Perpetual Trustee Company Limited. Whilst the plaintiff did not on this application repeat her previous views that there was some $5 million under management, the views which she had previously held in this respect contributed largely to her inability to control expenses. It is true that she has managed now for a considerable time to live within the fortnightly allowance provided. But that is because she has had no choice in the matter. If the existing restraint were removed, the plaintiff would be immediately frustrated by not having a large fund to place on long term deposit. As set out at [29] above the plaintiff proposed to put a "smaller amount" of $4,000 to $5,000 in an everyday savings account and to put a bigger sum on long term deposit. There would be no bigger sum. The costs of this action would reduce her capital to about $4,000 to $5,000. I am satisfied that the plaintiff would continue to believe that she had an entitlement to call on the NSW Trustee to transfer other moneys which she believes are held for her. There is an unacceptable risk that she would incur expenses that she could not meet. I am not satisfied that she could deal with the ordinary routine affairs of her life. There is a substantial risk that by incurring debts she could not meet, the plaintiff may lose her house.
For these reasons I order that the claims for relief in the summons be dismissed.
On the question of costs, the plaintiff's solicitor is in the difficult position that the plaintiff had no capacity to enter into a contract of retainer with him. In Re M and The Protected Estates Act 1983 (in a part of the judgment not reported), (Supreme Court of New South Wales, Powell J, 17 February 1988, unreported), Powell J dealt with the question of the applicant's costs, having concluded that the applicant was not entitled to have the existing financial management order revoked. He said:
"... just as, in former times, it was held that 'a lunatic', although incapable of entering into a contract, could be held liable quasi ex contractu for 'necessaries' (see, for example, Williams v. Wentworth (1842) 5 Beav. 325; Chester v. Rolfe (4 De G.M. & G. 798, 801; Brockwell v. Bullock (1889) 22 Q.B.D. 567), so also, it seems to me, the Applicant's solicitors ought to be regarded as entitled to receive their costs out of her Estate, if those costs were incurred for a purpose intended to benefit the Applicant, and it was, in all the circumstances, reasonable that they be incurred."
It is clear that the costs were incurred for a purpose intended to benefit the plaintiff. They were also reasonably incurred. The plaintiff's solicitors had obtained the opinions of medical witnesses to which I have referred in these reasons. It seems to me that on the basis of those opinions, it was reasonable and proper for the plaintiff's solicitors to cause these proceedings to be instituted for her benefit. It would not be just if the plaintiff's legal representatives were out of pocket. In Re M and The Protected Estates Act 1983 Powell J directed payment of such costs on the solicitor and client basis. The closest analogy under the present rules is to the indemnity basis. If the application had been successful, the order sought was for payment of $5,000 towards the plaintiff's costs. Having regard to the work done and the very considerable assistance provided by the solicitor and counsel for the plaintiff, I would have no doubt about the reasonableness of that figure.
For these reasons I order that the summons be dismissed. I 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.
I will hear whether or not the NSW Trustee seeks costs. Prima facie, this application is an incident of its administration of the estate (Re MacGregor at 867).
Decision last updated: 14 September 2012
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