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Re LSC and GC

Re LSC and GC

Case [2016] NSWSC 1896 23 December 2016

Corporate Law & Governance

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re LSC and GC [2016] NSWSC 1896
Hearing dates: 10 October and 23 November 2016, and written submissions
Date of orders: 23 December 2016
Decision date: 23 December 2016
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
In each of two protected estates, orders made (under s 86 of the NSW Trustee and Guardian Act 2009 NSW) for revocation of management orders made under s 41 of the Act, together with remedial orders consequent upon management of the estate by Perpetual Trustee Company Limited as legal successor of The Trust Company (by virtue of voluntary transfer determinations made by the Australian Securities and Industries Commission under Part 5D.6 of the Corporations Act 2001 Cth) without any order of the Court discharging or varying the order made under s 41(1)(b) of the NSW Trustee and Guardian Act 2009 for the appointment of The Trust Company as manager

Catchwords:
PROTECTIVE JURISDICTION – Protected estate management order - Voluntary transfer determination made by ASIC under the Corporations Act 2001 Cth Part 5D.6 does not, of itself, displace an order made by Court for ongoing management of a protected estate – Remedial orders made on exercise of protective jurisdiction
MENTAL HEALTH - Guardians, committees, administrators, managers and receivers – Financial management orders - Revocation
Legislation Cited: Corporations Act 2001 Cth
Guardianship Act 1987 NSW
Interpretation Act 1987 NSW
NSW Trustee and Guardian Act 2009 NSW
Trustee Companies Act 1964
Cases Cited: Ability One Financial Management Pty Limited and Anor v JB by his tutor AB [2014] NSWSC 245
C v W (No. 2) [2016] NSWSC 945
GDR v EKR [2012] NSWSC 1543
Holt v Protective Commissioner (1993) 31 NSWLR 27
JJK v APK (1986) Aust Torts Reports 80-042
M v M [2013] NSWSC 1495
Re The Trust Company [2013] NSWSC 1680
Re The Trust Company [2013] NSWSC 1946
Re The Trust Company Ltd [2013] NSWSC 1947
Texts Cited: H S Theobald, The Law Relating to Lunacy (London, 1924
Category: Principal judgment
Parties:
The plaintiff (in each set of proceedings): An applicant for a Revocation Order.
Putative Protected Estate Manager: Perpetual Trustee Company Limited ACN 000 001 007.
Representation:
Counsel:
Plaintiff LSC (2016/00161585): I King
Plaintiff GC (2016/00241612): P Li, solicitor
Perpetual Trustee Company Limited: M K Meek SC
NSW Trustee: C Phang, solicitor
Solicitors:
Plaintiff LSC (2016/00161585): Roderick Storie
Plaintiff GC (2016/00241612): Stephen Smart & Associates
Perpetual Trustee Company Limited: Makinson D’Apice (2016/00161585) and Diamond Conway (2016/00241612)

File Number(s): 2016/001615852016/00241612

Judgment

INTRODUCTION

Before the Court are two applications, each by a different “protected person” (within the meaning of section 38 of the NSW Trustee and Guardian Act 2009 NSW) , in separate proceedings under section 86 of the Act, for an order to the effect that management orders made under section 41 of the Act be revoked.
On the face of the Court’s Protective List records, each application appears to be irregular because the manager appointed under section 41 (a licensed…

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 LSC and GC

Details

AGLC: Re LSC and GC [2016] NSWSC 1896
Case: [2016] NSWSC 1896
Decision Date: 23 December 2016

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Re LSC and GC involved the dispute concerning the management of a protected estate. The court was required to determine whether a voluntary transfer determination made by the Australian Securities and Investments Commission (ASIC) under the Corporations Act 2001 (Cth) could displace an order made by the Court for the ongoing management of the estate. The court was also required to determine whether it had the jurisdiction to make remedial orders in this context.

The central legal issue before the court was whether the ASIC's voluntary transfer determination, made under Part 5D.6 of the Corporations Act, could override a court-made order for the management of a protected estate. Additionally, the court had to consider whether it could exercise its protective jurisdiction to make remedial orders in this matter. The court examined the statutory framework and case law to resolve these issues.

The court held that the ASIC's determination did not, of itself, displace a court-made order for the ongoing management of a protected estate. The court emphasised the importance of its protective jurisdiction in managing protected estates and found that it could make remedial orders as necessary. The court revoked the financial management orders previously made, finding that they were no longer appropriate given the current circumstances of the estate. The court's decision underscored its role in safeguarding the interests of the protected estate and its flexibility in exercising its protective jurisdiction.

The court ordered the revocation of the financial management orders and directed that the estate be managed according to the new terms set out in the judgment. The decision affirmed the court's authority in managing protected estates and its capacity to adapt its orders to the evolving needs of the estate.

Orders