Re Flint

[2005] NSWSC 560

CITATION:	Re Flint [2005] NSWSC 560
HEARING DATE(S):	Heard in chambers without appearance of any person
JUDGMENT DATE :	9 June 2005
JURISDICTION:	Equity Division Protective List
JUDGMENT OF:	Young CJ in Eq
DECISION:	Plaintiffs appointed managers of defendant's estate; plaintiffs' costs to be paid out of estate.

CATCHWORDS:	MENTAL HEALTH [3]- Missing person- Appointment of Protective Manager- How case established- Parents appointed managers of missing person's estate- Security not needed where managers share close relationship with protected person and estate is small- Operation of Protected Estates Act 1983, s 21C.
LEGISLATION CITED:	Protected Estates Act 1983, ss 21C, 31
PARTIES:	Lindsay Ross Flint and Pauline Anne Flint (P) Glenn Keith Douglas Flint (D)
FILE NUMBER(S):	SC 24/2005

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

YOUNG CJ in EQ

Thursday 9 June 2005

24/2005 – RE FLINT

JUDGMENT

1 HIS HONOUR: On 15 November 2001 Glenn Flint left his parents' home at Manly to attend a medical appointment. He fulfilled that appointment, but was never seen again.

2 On 16 November 2001, Glenn's mother reported his disappearance to the police.

3 The evidence shows that the police have followed their usual procedure in tracing missing persons without a positive result.

4 A Google search shows eight entries relating to Glenn as a missing person.

5 The evidence shows that Glenn's disappearance and his parents' concerns have been published in articles in the Sun Herald and Woman's Day and other media with widespread circulation.

6 In addition, the Salvation Army was requested to trace Glenn: it has endeavoured to find Glenn, but without success.

7 There has been no positive response.

8 The plaintiffs, who are Glenn's parents, seek an order under s 21C of the Protected Estates Act 1983, a provision which only came into force in December last year.

9 Because this is, as far as I am aware, the first case under this provision, I thought it was appropriate to give reasons for my decision.

10 Section 21C of the Protected Estates Act 1983 is as follows:

"(1) The Court may declare that a person is a missing person and order that the estate of the person (or any part of it) be subject to management under this Act if the Court is satisfied that:
(a) the person is a missing person, and
(b) the person's usual place of residence is in this State, and
(c) it is in the best interests of the person to do so.
(2) The Court may be satisfied that a person is a missing person only if it is satisfied that:
(a) it is not known whether the person is alive, and
(b) all reasonable efforts have been made to locate the person, and
(c) persons residing at the place where the person was last known to reside, or relatives or friends with whom the person would be likely to communicate, have not heard from, or of, the person for at least 90 days.
(3) An application for a declaration and order under this section in relation to a person may be made by any of the following persons:
(a) the spouse of the person,
(b) a relative of the person,
(c) a business partner or employee of the person,
(d) the Attorney General,
(e) the Protective Commissioner,
(f) any other person who has an interest in the estate of the person.
(4) On the hearing of an application for the purposes of this section, evidence may be given to the Court in such form and in accordance with such procedures as the Court thinks fit."

11 The plaintiffs, as Glenn's parents are eligible applications.

12 In accordance with general directions that I have given for this class of case, the missing person is named as the defendant, but the Court will dispense with service.

13 I need then, to be satisfied of the matters set out in sub-section (2).

14 As to (a), the evidence shows that no-one knows whether or not Glenn is alive.

15 As to (b), enquiries by the police, the Salvation Army and relatives including the media coverage, constitute reasonable efforts to locate Glenn.

16 As to (c), the affidavits show that people with whom Glenn resided and his relatives have not heard from him for over three years. Not all Glenn's friends are known, but those who are known have not seen him. The media coverage indicates that as there was no response to the appeals to locate Glenn, it is likely no other friend has seen him.

17 Glenn has some small assets and some debts. His parents reasonably wish to manage those assets pending his return.

18 I am satisfied on the evidence that Glenn is a missing person whose usual place of residence is in Manly in this State and that it is in the interests of Glenn to make a management order under the Protected Estates Act.

19 The proposed Managers are Glenn's parents. This is most appropriate. The next question is whether the appointment should be with or without security.

20 Section 31 of the Act gives the Court a discretion as to whether or not to order security. However, in the standard case, security to the satisfaction of the Protective Commissioner is ordinarily ordered.

21 In my view, when there is a close knit family, a small estate and little chance of loss because of the obvious family goodwill, the Court should dispense with security.

22 Thus I declare that the defendant, Glenn Flint, is a missing person and I make the following orders:

1. The estate of the defendant be subject to management under the provisions of the Protected Estates Act 1983.

2. Lindsay Ross Flint and Pauline Anne Flint be appointed manager of the estate of the defendant without security to act in relation thereto under the order and direction of the Protective Commissioner.

3. On the death or discharge of either of the said managers the management of the estate shall continue to the surviving or continuing manager.

4. The assessed costs of the plaintiffs of and incident to these proceedings be paid to the parties entitled thereto out of the estate of the defendant.

5. Parties are at liberty to apply as they may be advised.

********************