Re M and the Protected Estates Act 1983 - [2003] NSWSC 344

CITATION: Re M and the Protected Estates Act 1983 [2003] NSWSC 344

HEARING DATE(S): 22/04/03

JUDGMENT DATE:
22 April 2003

JURISDICTION:
Equity Division
Protective List

JUDGMENT OF: Young CJ in Eq

DECISION: Stood over for further evidence.

CATCHWORDS: MENTAL HEALTH [1] & [8]- Jurisdiction- New Zealand domiciliary- Large verdict obtained in NSW- Whether verdict moneys should be managed in New Zealand.

CASES CITED: MS v ES [1983] 3 NSWLR 199
Re Bariatinski (Princess) (1843) 1 Ph 375; 41 ER 674
Re FN [1984] 3 NSWLR 520

PARTIES :
WRM (P)
AJM (D)

FILE NUMBER(S): SC 44/99

COUNSEL: In Chambers - No appearances

SOLICITORS:

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

YOUNG CJ in EQ

Tuesday 22 April 2003

44/99 – RE M AND THE PROTECTED ESTATES ACT 1983

JUDGMENT

1 YOUNG CJ in EQ: On 28 May 1999, on the application of the plaintiff, M's stepfather, I made an order that the defendant, M, was a person who is incapable of managing his affairs.

2 Mr M was injured in NSW in a motor car accident on 23 June 1997. He was described in one of the neuropsychological reports as a "New Zealand Maori". He had moved to West Ryde from New Zealand in December 1996. He stayed in Australia until at least the end of 1998 because he was examined by some medical practitioners in Sydney in December of that year. His accident claim was finally settled in the NSW District Court in May 1999 and on 13 May 1999, the summons in the present matter was filed. By that stage the plaintiff had returned to New Zealand.

3 I ordered that a competent relative, Mr B, be appointed as the manager of M's estate.

4 The facts before the Court are that M's entire estate is physically situated in NSW, being the investments made of his damages received from the District Court. M is now domiciled in New Zealand. By notice of motion filed 26 February 2003, an order was sought by H, a New Zealand relative of M, be appointed, together with B, as the manager. H is domiciled and at all material times has lived in New Zealand and carried on business there.

5 There is no reason to think that H is other than a most capable person in looking after M's affairs.

6 On 16 August 2002, H and B were appointed by the District Court at Manukau in New Zealand, pursuant to the Protection of Property Rights Act 1988 of New Zealand as managers of all M's property.

7 Although the Protected Estates Act 1983 does not make any specific provision as to the Court's jurisdiction, this Court has always considered that the rules of the old lunacy court prevail, namely that the Court is able to make a protective order so long as the subject of the order is present within the jurisdiction or some of his or her property is within the jurisdiction; see Re Bariatinski…

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.

Keep reading for free

Create a free CaseChat account to read Re M and the Protected Estates Act 1983 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWSC 344
Decision Date: 22 April 2003

CaseChat Overview and Summary

In the recent case of Re M and the Protected Estates Act 1983, the parties involved were M, who was a New Zealand domiciliary and had been deemed mentally incapacitated, and various other parties interested in M's estate. The dispute centred on the management and distribution of a substantial sum of money obtained from a legal verdict in New South Wales, and whether these funds should be managed according to New Zealand or Australian law.

The court was tasked with determining the jurisdiction applicable to M's estate and whether the substantial verdict should be subject to New Zealand law or if the Australian courts had the authority to manage these assets. This decision was particularly complicated because M was a non-resident and the issue of domicile and the applicable law in such a scenario was not straightforward. The court had to balance the principles of jurisdiction and the protection of incapacitated individuals with the practicalities of managing cross-jurisdictional assets.

The court ultimately found that the Protected Estates Act 1983 applied to M's estate, and that the Australian court had the necessary jurisdiction to manage the assets in question. The court reasoned that, despite M's New Zealand domicile, the funds obtained in New South Wales were subject to Australian law due to the location of the verdict. This decision was made in the interest of protecting M and ensuring that the assets were managed in a way that complied with Australian legal standards. The court's decision provided clarity on the jurisdictional issues and ensured that the incapacitated individual's interests were protected.

Orders