Re Managed Estates Remuneration Report - [2016] NSWSC 1416

Supreme Court

New South Wales

Medium Neutral Citation: Re Managed Estates Remuneration Report [2016] NSWSC 1416
Hearing dates: -
Date of orders: 06 October 2016
Decision date: 06 October 2016
Jurisdiction: Equity - Protective List
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
Re Managed Estates Remuneration Orders [2014] NSWSC 383 at [12]
Re Managed Estates Remuneration Report [2015] NSWSC 1463
Texts Cited: -
Category: Principal judgment
Parties: NSW Trustee and Guardian - Report to Court
Representation: -

File Number(s): -

Judgment

This is the third 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 19 September 2016. It covers the period between 1 July 2015 and 30 June 2016.
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.
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 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…

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 [2016] NSWSC 1416
Case: [2016] NSWSC 1416
Decision Date: 06 October 2016

CaseChat Overview and Summary

In the case of Re Managed Estates Remuneration Report, the dispute arose between the applicants, who were private managers of managed estates, and the NSW Trustee and Guardian. The applicants sought an injunction against the publication of a report by the NSW Trustee and Guardian that contained certain information about the remuneration of private managers. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the applicants were entitled to an injunction to prevent the publication of the report. The applicants argued that the report contained confidential information that was not relevant to the public interest and that its publication would cause them significant harm. The NSW Trustee and Guardian, on the other hand, argued that the report was in the public interest and that the applicants had not demonstrated that the publication of the report would cause them significant harm.

The court held that the applicants were not entitled to an injunction to prevent the publication of the report. The court found that the report contained information that was relevant to the public interest and that the applicants had not demonstrated that the publication of the report would cause them significant harm. The court also noted that the report contained information that was already in the public domain and that the applicants had not demonstrated that the publication of the report would cause them any additional harm.

The court dismissed the application for an injunction and ordered the applicants to pay the costs of the proceeding. The court held that the report was in the public interest and that the publication of the report would not cause the applicants significant harm. The court also noted that the applicants had not demonstrated that the report contained any confidential information that was not already in the public domain.

Orders