Re N - [2011] NSWSC 1433

Supreme Court

New South Wales

Medium Neutral Citation: Re N [2011] NSWSC 1433
Hearing dates: Monday, 7 November 2011
Decision date: 07 November 2011
Jurisdiction: Equity Division - Protective List
Before: White J
Decision:
Refer to para [21] of judgment.

Catchwords: GUARDIANSHIP - application for declaration that N incapable of managing her affairs and for order that estate be subject to management under NSW Trustee and Guardian Act 2009 - s 42, NSW Trustee and Guardian Act 2009 - where Guardianship Administration Board of Tasmania made guardianship order pursuant to s 20, Guardianship and Administration Act 1995 (Tas) - where N has never been resident of New South Wales -- finding of Guardianship Administration Board of Tasmania that N unable by reason of her disability to make reasonable judgments in respect of her estate is in substance a finding she is incapable of managing her affairs
Legislation Cited: NSW Trustee and Guardian Act 2009
Guardianship and Administration Act 1995 (Tas)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Tas)
Cases Cited: Re GHI [2005] NSWSC 581; (2005) 221 ALR 589
Category: Principal judgment
Parties:
Representation: Ms K Oldfield (Plaintiff)
Beilby Poulden Costello Solicitors (Plaintiff)

File Number(s): 2011/263507

Judgment

HIS HONOUR : This is an application for a declaration that N is incapable of managing her affairs and for an order that her estate be subject to management under the NSW Trustee and Guardian Act 2009 and consequential orders.

N is 19 years of age. The application is brought by her mother. Both N and her parents are currently resident in the United Arab Emirates. N was formerly a resident of Tasmania. She brought proceedings in the Supreme Court of Tasmania through her mother as her next friend for damages in relation to alleged medical negligence when she was an infant. Those proceedings were settled and resulted in judgment being entered in favour of N for a very substantial sum of money.

On 10 September 2010 the Guardianship Administration Board of Tasmania made orders appointing the plaintiff, that is, N's mother, as administrator of her estate. Her powers were limited to instructing legal practitioners to act on N's plaintiff with regard to the action in the Supreme Court of Tasmania.

The Board also made the following finding namely, that " the represented person [N]":

" * is a person with a disability, and

* is unable by reason of the disability to make reasonable judgments in respect of her estate, and

* is in need of a limited administrator ".

These findings reflected s 20 of the Guardianship and Administration Act 1995 (Tas).

That section relevantly provides:

" 20. Guardianship order

(1) If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made -

(a) is a person with a disability; and

(b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating…

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 N

Details

AGLC: Re N [2011] NSWSC 1433
Case: [2011] NSWSC 1433
Decision Date: 07 November 2011

CaseChat Overview and Summary

The case of Re N involved an application by the Guardianship Administration Board of Tasmania seeking a declaration that N was incapable of managing her own affairs and requesting that her estate be subject to management under the NSW Trustee and Guardian Act 2009. The Board sought this order as it had already made a guardianship order under the Guardianship and Administration Act 1995 (Tas). N, who has never been a resident of New South Wales, was found by the Tasmanian Board to be unable to make reasonable judgments in relation to her estate due to her disability.

The primary legal issues before the court were whether N was incapable of managing her affairs and if the New South Wales court had the jurisdiction to make a declaration in this regard, given that N had never been a resident of the state. Furthermore, the court needed to determine if the finding of the Tasmanian Board that N was unable to make reasonable judgments about her estate could be considered a finding that she was incapable of managing her affairs.

The court found that the Guardianship Administration Board of Tasmania had made a finding of incapacity in substance, which could be treated as a finding of incapacity under New South Wales law. The court held that N was incapable of managing her affairs as she could not make reasonable judgments in relation to her estate. The court also found that it had jurisdiction to make the declaration sought by the Tasmanian Board, as the finding of incapacity was made by a court of another state and was sufficient to warrant the declaration. The court concluded that the Tasmanian Board's finding was a finding of incapacity in substance, and therefore, the New South Wales court had jurisdiction to declare that N was incapable of managing her affairs and order that her estate be subject to management under the NSW Trustee and Guardian Act 2009.

The court made the declaration that N was incapable of managing her affairs and ordered that her estate be subject to management under the NSW Trustee and Guardian Act 2009. The court also directed that the estate be managed by the Public Trustee of New South Wales.

Orders