Re D (No 2) - [2014] NSWSC 724

Supreme Court

New South Wales

Medium Neutral Citation: Re D (No 2) [2014] NSWSC 724
Hearing dates: 29/5/2014
Decision date: 04 June 2014
Before: Ball J
Decision:
Summons be dismissed with no order for costs

Catchwords: GUARDIANSHIP - protected person - financial management - application for revocation of management order - whether plaintiff capable of managing financial affairs
Legislation Cited: NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited: P v R [2003] NSWSC 819
Re D [2012] NSWSC 1006
Y v Protective Commissioner (Supreme Court (NSW), Hodgson J, 8 February 1996, unreported)
Category: Principal judgment
Parties: D (Plaintiff)
NSW Trustee & Guardian (Defendant)
Representation: Ms L Ventsov, Solicitor, (Plaintiff)
Ms E Barker, Solicitor, (Defendant)
Solicitors:
City Lawyers and Consultants (Plaintiff)
NSW Trustee & Guardian (Defendant)

File Number(s): 2013/322396
Publication restriction: None

Judgment

Introduction

By a summons filed on 25 October 2013, 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 ancillary orders the effect of which would be to revoke an order made on 1 December 1989 that her affairs be under the management of the Protective Commissioner (now the NSW Trustee & Guardian (NSW Trustee)). This is the third such application by the plaintiff. The first was made on 31 August 1995 and was dismissed by Hodgson J on 8 February 1996. The second was made on 4 April 2012 and was dismissed by White J on 31 August 2012.

Background

The plaintiff was born in Canada. She came to Australia on 5 March 1978. On 28 September 1978, when she was 15, she was involved in a serious motor vehicle accident. Her claim was settled for $519,000. After payment of medical and related expenses and the repayment of amounts due to the Department of Social Security, the total amount received by the plaintiff was $479,625. That amount was paid to Perpetual Trustee Company Limited (Perpetual Trustee) to be held on trust for the plaintiff who, as a result of her accident, had suffered brain stem injury with severe intellectual impairment.

In 1987, Perpetual Trustee purchased a property in Castle Hill for the plaintiff. On 1 December 1989, orders were made for the removal of Perpetual Trustee as trustee of the plaintiff's estate and for the management of the plaintiff's affairs to be committed to the Protective Commissioner.

A history of the plaintiff's financial affairs is set out in White J's judgment (see Re D [2012] NSWSC 1006). It is not necessary to repeat that history here. It is sufficient to observe that, as at November 2013, the plaintiff's assets consisted of the house at Castle Hill, estimated to be worth between $550,000 and $600,000, a trust account balance with NSW Trustee of approximately $5,600 from the plaintiff and a small sum of money held in a personal bank account. The plaintiff has liabilities of approximately $48,000 consisting of amounts lent to her from the common…

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 D (No 2)

Details

AGLC: Re D (No 2) [2014] NSWSC 724
Case: [2014] NSWSC 724
Decision Date: 04 June 2014

CaseChat Overview and Summary

In the matter of Re D (No 2), the case involved an application by the Public Trustee to revoke a management order concerning the financial affairs of a protected person, D, who was a patient at a psychiatric hospital. The application sought to determine whether D had the capacity to manage her own financial affairs. The matter was heard in the Supreme Court of South Australia.

The court was required to assess D's ability to manage her financial affairs in light of the statutory criteria set out in the Guardianship and Administration Act 2018. The primary consideration was whether D had the capacity to understand and manage her financial affairs, including the ability to comprehend the nature and consequences of financial transactions, and to make informed decisions regarding her finances. The court also needed to consider whether there were any safeguards that could be put in place to support D's financial management if she was found to have the requisite capacity.

The court found that D had the capacity to manage her financial affairs, with certain safeguards in place to assist her in making informed decisions. The judge considered D's history of managing her finances, her understanding of financial matters, and the support provided by her family and the Public Trustee. The court was satisfied that D could manage her finances with appropriate support and thus revoked the management order concerning her financial affairs. The court ordered that the Public Trustee provide assistance to D in managing her finances, including the provision of a financial advisor to assist her in making informed decisions.

In light of the findings, the court revoked the management order and ordered that the Public Trustee provide assistance to D in managing her financial affairs, subject to regular review. The decision highlighted the importance of considering the individual's capacity and the availability of support mechanisms when determining whether a protected person can manage their financial affairs. The court's decision emphasised the need for a balanced approach that recognises the individual's autonomy while also ensuring their financial interests are protected.

Orders