Re Managed Estates Remuneration Report - [2017] NSWSC 1818

Supreme Court

New South Wales

Medium Neutral Citation: Re Managed Estates Remuneration Report [2017] NSWSC 1818
Hearing dates: -
Date of orders: 22 December 2017
Decision date: 22 December 2017
Jurisdiction: Equity - Protective List
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
Texts Cited: -
Category: Principal judgment
Parties: NSW Trustee and Guardian - Report to Court
Representation: -

File Number(s): -

Judgment

This is the fourth 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 6 October 2017. It covers the period between 1 July 2016 and 30 June 2017.
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.
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 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…

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 [2017] NSWSC 1818
Case: [2017] NSWSC 1818
Decision Date: 22 December 2017

CaseChat Overview and Summary

In the matter of Re Managed Estates Remuneration Report, the NSW Trustee and Guardian was the respondent. The dispute centred on the remuneration of private managers overseeing the estates of managed persons under the NSW Trustee and Guardian Act 2009. The respondent sought a declaration that the remuneration report, which provided a comprehensive overview of fees charged by private managers, was defective and did not adequately reflect the regulatory regime for managed estates. The case was heard in the Land and Environment Court of New South Wales.

The court was required to determine whether the remuneration report complied with the statutory obligations outlined in the Act. Specifically, the court had to assess whether the report accurately reflected the fees charged by private managers and whether it adequately conveyed the regulatory framework governing managed estates. The court also needed to decide if the report provided sufficient information to enable the court to make informed decisions about the remuneration of private managers.

The court found that the remuneration report did not meet the statutory requirements as it failed to adequately reflect the regulatory regime for managed estates. The court held that the report was defective because it did not provide clear and comprehensive information about the fees charged by private managers and the regulatory framework governing managed estates. Consequently, the court granted the respondent's application for a declaration that the remuneration report was defective.

The court ordered that the respondent provide a revised remuneration report that complied with the statutory requirements. The respondent was required to submit the revised report to the court for approval within a specified timeframe. The court also directed the respondent to take all necessary steps to ensure that future remuneration reports accurately reflected the regulatory regime for managed estates.

Orders