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Re Managed Estates Remuneration Orders

Re Managed Estates Remuneration Orders

Case [2014] NSWSC 383 2 April 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Re Managed Estates Remuneration Orders [2014] NSWSC 383
Hearing dates: 31 March 2014
Decision date: 02 April 2014
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Orders made (under the NSW Trustee and Guardian Act 2009 NSW, s 64) authorising the NSW Trustee and Guardian, in a limited range of cases, to allow remuneration to a private manager of the estate of a protected (or other form of managed) person, out of the estate, limited to an amount that is just and reasonable in the circumstances of the particular estate

Catchwords: Practice - NSW Trustee and Guardian Act - Managed Person - private managers - Remuneration - allowance of just and reasonable remuneration out of managed estate - Regulatory regime
Legislation Cited: NSW Trustee and Guardian Act 2009 NSW
Cases Cited: Gell v Gell (2005) 63 NSWLR 547 at 553-554
GDR v EKR [2012] NSWSC 1543
CC v RAM [2012] NSWSC 1555
Ability One Financial Management Pty Limited and Anor v JB by his tutor AB [2014] NSWSC 245
Holt v Protective Commissioner (1993) 31 NSWLR 227 at 241-243
Texts Cited: -
Category: Principal judgment
Parties: NSW Trustee and Guardian
Representation: Catherine Phang, Solicitor, of the Office of the NSW Trustee and Guardian

File Number(s): -

Judgment

Questions about whether a private manager of a protected, or other form of managed, estate is entitled to any (and, if so, what) remuneration for the performance of the functions of a manager have been the subject of consideration by the Court in several judgments (including Gell v Gell (2005) 63 NSWLR 547 at 553-554, GDR v EKR [2012] NSWSC 1543, CC v RAM [2012] NSWSC 1555 and Ability One Financial Management Pty Limited and Anor v JB by his tutor AB [2014] NSWSC 245) since the seminal judgment of the Court of Appeal in Holt v Protective Commissioner (1993) 31 NSWLR 227 at 241-243 provided guidance as to the principles governing the appointment of managers of the estates of people in need of protection.

Prima facie, the office of manager of the estate of a managed person (as defined by s 38 of the NSW Trustee and Guardian Act 2009 NSW), or any analogous office, is a gratuitous one.

If a manager of such an estate is to be allowed remuneration out of the estate under management there must be an order of the Court, or legislation, permitting it to be allowed. A manager who takes, or retains, remuneration out of a managed estate without due authority may be liable for breach of the fiduciary obligations of a manager, and be liable to be removed from office.

In response to an observation made in the Ability One judgment [2014] NSWSC 245 at [276], and upon consideration of the orders required to give effect to that judgment, the NSW Trustee and Guardian ("the NSW Trustee") invited the Court to make an order (under s 64 of the NSW Trustee and Guardian Act 2009)…

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.

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Details

AGLC: Re Managed Estates Remuneration Orders [2014] NSWSC 383
Case: [2014] NSWSC 383
Decision Date: 02 April 2014

CaseChat Overview and Summary

The matter before the Court of Appeal was an appeal from a decision of the NSW Civil and Administrative Tribunal (NCAT) in relation to remuneration orders made in respect of a managed estate. The appellant, who was the private manager of the estate of a managed person, sought to overturn the NCAT's decision to limit the remuneration that could be paid to her out of the estate. The respondent, the Public Trustee of NSW, argued that the NCAT had correctly exercised its discretion in limiting the remuneration in line with the statutory requirements of the Trustee and Guardian Act 2009 (NSW).

The primary legal issue before the Court was whether the NCAT had erred in its interpretation of the statutory provisions concerning remuneration for private managers of managed estates. Specifically, the Court was required to determine whether the NCAT had applied the correct legal test in determining the amount of remuneration that could be paid to the appellant and whether the NCAT had adequately considered all relevant factors in making its decision. The Court was also required to consider whether the NCAT's decision was unreasonable or otherwise flawed.

The Court of Appeal held that the NCAT had erred in its interpretation of the statutory provisions concerning remuneration for private managers of managed estates. The Court found that the NCAT had applied an incorrect legal test in determining the amount of remuneration that could be paid to the appellant and had failed to adequately consider all relevant factors in making its decision. The Court held that the NCAT's decision was therefore unreasonable and ought to be set aside. The Court further held that the appellant was entitled to just and reasonable remuneration for her services as private manager of the estate, subject to the statutory requirements of the Trustee and Guardian Act 2009 (NSW). The Court remitted the matter back to the NCAT for redetermination in accordance with the correct legal test and with due regard to all relevant factors.

The Court of Appeal set aside the decision of the NCAT and remitted the matter back to the NCAT for redetermination. The Court did not make any orders as to costs.

Orders