Re Managed Estates Remuneration Report
[2014] NSWSC 1652
•21 November 2014
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 3 may be the subject of an application to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 NSW.
(d) the Court reserves an entitlement, of its own motion, or on the motion of any person interested in the estate of a managed person, to review a decision made by the NSW Trustee and Guardian under Order 3.
(2) Order, subject to further order, that Order 3 applies if and only if, in relation to the particular estate of a managed person in respect of which a claim for remuneration is made by a manager of the estate, the manager has been authorised, by an order of the Court or by legislation governing a "Trustee Company" within the meaning of the Trustee Companies Act 1964 NSW, to charge fees for performance of the functions of the manager of the estate.
(3) Order, subject to any order of the Court, that the NSW Trustee and Guardian be authorised (upon the passing of accounts of the manager of the estate of a managed person or otherwise) to allow, out of the estate of the managed person, such, if any, remuneration (including expenses) of the manager as may be just and reasonable, subject to being satisfied that:
(a) the manager has duly performed the functions of a manager; and
(b) it is in the best interests, and for the benefit, of the managed person to do so.
(4) Order, subject to further order, that, within three months after 30 June each year or within such other time as the Court may allow, the NSW Trustee and Guardian provide to the Court a written report on the operation of these orders, including a statement of the frequency, nature and quantum of any remuneration allowed by the NSW Trustee and Guardian during the immediately preceding year ended 30 June.
(5) Reserve to the NSW Trustee and Guardian liberty to apply generally for an order that these orders be discharged or varied.
The time for provision of the NSW Trustee's Report for the year ended 30 June 2014 was extended up to and including 14 November 2014.
Set out in the Appendix to this judgment is a redacted form of the NSW Trustee's Report dated 13 November 2014.
The Report has been redacted only to respect the privacy of individuals whose estates are under management .
The Report provides a practical demonstration of the substantial amount of administrative work required to underpin a regulatory regime in which private protected estate managers, beyond licensed trustee companies, may be appointed on terms that allow them to be remunerated.
Attachments to the Report provide practical guidance as to the manner in which the regulatory regime is intended to operate.
The orders made by the Court on 2 April 2014 were made with the intention of providing a framework within which the NSW Trustee can, in an appropriate case, allow remuneration to a private manager, subject to review by the NSW Civil and Administrative Tribunal, and to review by the Court in the exercise of its statutory and inherent jurisdiction.
The NSW Trustee plays a central role in the management, or monitoring, of the estates of managed persons in New South Wales. The Court is largely dependent upon the due performance of its statutory functions.
The current Report is published, for the information of the public, together with an invitation to all persons interested in the due management of a protected estate to endeavour to work constructively with the office of the NSW Trustee.
APPENDIX
For access to the Report of the NSW Trustee (dated 13 November 2014) for the year ended 30 June 2014, click on the word "APPENDIX".
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Decision last updated: 21 November 2014
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