Re Managed Estates Remuneration Report - [2014] NSWSC 1652

Supreme Court

New South Wales

Medium Neutral Citation: Re Managed Estates Remuneration Report [2014] NSWSC 1652
Hearing dates: -
Decision date: 21 November 2014
Jurisdiction: Equity Division
Before: Lindsay J (in chambers)
Decision:
Report of the NSW Trustee and Guardian on the operation of Managed Estates Remuneration Orders, pursuant to Re Managed Estates Remuneration Orders [2014] NSWSC 383, published in redacted form

Catchwords: PRACTICE - NSW Trustee and Guardian Act - Managed person - Private managers - Remuneration - Regulatory regime - Report of NSW Trustee and Guardian
Legislation Cited: NSW Trustee and Guardian Act 2009 NSW)
Cases Cited: Ability One Financial Management Pty Limited and Anor v JB by his tutor AB [2014] NSWSC 245
M v M [2013] NSWSC 1495
Re Managed Estates Remuneration Orders [2014] NSWSC 383 at [12]
Texts Cited: -
Category: Principal judgment
Parties: NSW Trustee and Guardian - Report to Court
Representation: Counsel:
Solicitors:

File Number(s):

Judgment

In M v M [2013] NSWSC 1495 attention was drawn to a movement, in the management of protected estates, towards greater use of private managers.

That change in practice came under closer scrutiny in Ability One Financial Management Pty Limited and Anor v JB by his tutor AB [2014] NSWSC 245 in the context of appointment of a private manager for reward.

Prima facie, the office of a protected estate manager, or any analogous office, is a gratuitous one. If the holder of such an office 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.

Taking up 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 NSW) providing for it to be authorised, in defined circumstances, to allow a private manager of a managed estate remuneration out of the estate.

Acting on that invitation, on 2 April 2014 the Court made the following notations and orders, published as Re Managed Estates Remuneration Orders [2014] NSWSC 383 at [12]:

(1) Note that:

(a) these orders are made by the Court pursuant to the NSW Trustee and Guardian Act 2009 NSW, s 64.

(b) nothing in these orders is intended to limit:

(i) the operation of s 115 of the NSW Trustee and Guardian Act 2009 NSW; or

(ii) the jurisdiction of the Court with respect to the management of estates or the guardianship of persons.

(c) by operation of s 70 of the NSW Trustee and Guardian Act 2009 NSW, a decision made by the NSW Trustee and Guardian under Order…

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 Managed Estates Remuneration Report

Details

AGLC: Re Managed Estates Remuneration Report [2014] NSWSC 1652
Case: [2014] NSWSC 1652
Decision Date: 21 November 2014

CaseChat Overview and Summary

The case involved a dispute between the plaintiff, a private manager, and the defendant, the Trustee and Guardian of New South Wales. The plaintiff sought a declaration that the defendant’s remuneration report, which was published under the Trustee and Guardian Act, was unlawful. The report contained information regarding the remuneration of private managers appointed to manage the affairs of a person who was a managed person, as defined by the Act. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the defendant was authorised to publish the remuneration report and whether the report was unlawful. The court had to determine whether the defendant's actions were within the scope of its regulatory regime, as set out in the Trustee and Guardian Act. The court also had to consider whether the report contained confidential information and whether its publication would breach any legal or ethical obligations.

The court found that the defendant was authorised to publish the remuneration report and that the report was not unlawful. The court held that the defendant's actions were within the scope of its regulatory regime, as set out in the Trustee and Guardian Act. The court also found that the report did not contain any confidential information and that its publication did not breach any legal or ethical obligations. The plaintiff's claim was dismissed.

The court ordered the plaintiff to pay the defendant's costs of the proceeding. The court found that the defendant's actions were reasonable and that the plaintiff's claim was without merit. The court also found that the defendant had acted in good faith and that the plaintiff's conduct in bringing the proceeding was oppressive and vexatious. The court therefore ordered the plaintiff to pay the defendant's costs of the proceeding, including the costs of two lawyers and an expert witness.

Orders