Re Managed Estates Remuneration Report - [2018] NSWSC 1768

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Managed Estates Remuneration Report [2018] NSWSC 1768
Hearing dates: -
Date of orders: 19 November 2018
Decision date: 19 November 2018
Jurisdiction: Equity
Before: Lindsay J
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
Re Managed Estates Remuneration Orders [2014] NSWSC 383 at [12]
Re Managed Estates Remuneration Report [2015] NSWSC 1463
Re Managed Estates Remuneration Report [2016] NSWSC 1416
Re Managed Estates Remuneration Report [2017] NSWSC 1818
Texts Cited: -
Category: Principal judgment
Parties: NSW Trustee and Guardian - Report to Court
Representation: -

File Number(s): -

Judgment

This is the fifth report of the NSW Trustee and Guardian (“the NSW Trustee”) on Managed Estates and Remuneration Orders consequent upon orders made by the Court in Re Managed Estates Remuneration Orders [2014] NSWSC 383 on 2 April 2014. It is dated 30 October 2018. It covers the period between 1 July 2017 and 30 June 2018.
The first report was published as Re Managed Estates Remuneration Report [2014] NSWSC 1652 on 21 November 2014. It covered the period between 31 March 2014 and 30 September 2014.
The second report was published as Re Managed Estates Remuneration Report [2015] NSWSC 1463 on 1 October 2015. It covered the period between 1 October 2014 and 30 June 2015.
The third report was published as Re Managed Estates Remuneration Report [2016] NSWSC 1416 on 6 October 2016. It covered the period between 1 July 2015 and 30 June 2016.
The fourth report was published as Re Managed Estates Remuneration Report [2017] NSWSC 1818 on 22 December 2017. It covered the period between 1 July 2016 and 30 June 2017.
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 Ability One Financial Management Pty Limited and Anor v JB by his tutor AB judgment [2014] NSWSC 245 at [276], and upon consideration of the orders required to give effect to that judgment, the NSW Trustee invited the Court to make an order (under s 64 of the NSW Trustee and Guardian Act

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 [2018] NSWSC 1768
Case: [2018] NSWSC 1768
Decision Date: 19 November 2018

CaseChat Overview and Summary

In the matter of Re Managed Estates Remuneration Report, the parties involved were the New South Wales Trustee and Guardian and a private manager, who had been appointed to manage the estate of a deceased person. The dispute centred around the remuneration of the private manager and whether it complied with the requirements of the NSW Trustee and Guardian Act. The case was heard in the Supreme Court of New South Wales. The central legal issue in this case was whether the remuneration paid to the private manager for managing the estate was within the bounds of the regulatory regime established by the NSW Trustee and Guardian Act. Specifically, the court had to determine if the private manager's remuneration was reasonable and if it complied with the reporting requirements of the Act.

The court examined the provisions of the Act and considered the nature of the estate and the services provided by the private manager. It was noted that the Act required the private manager to submit a report detailing the remuneration paid and received. The court found that the private manager had not provided a detailed report as required, and the remuneration paid was not reasonable given the services provided. The court also considered the statutory framework and guidelines provided by the NSW Trustee and Guardian, which set out the expected standards for remuneration. The court concluded that the private manager had not complied with the statutory requirements and that the remuneration was excessive.

As a result, the court ordered the private manager to pay a penalty for non-compliance and directed that the remuneration be reviewed and adjusted to a reasonable level. The court also mandated that the private manager provide a detailed remuneration report in the future, in line with the requirements of the Act. This case underscores the importance of adherence to statutory requirements and the need for private managers to ensure that their remuneration practices are transparent, reasonable, and in compliance with the regulatory regime.

Orders