Re PDC

Case [2021] NSWSC 1701 23 December 2021

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Re PDC [2021] NSWSC 1701
Hearing dates: 22 October 2021
Date of orders: 23 December 2021
Decision date: 23 December 2021
Jurisdiction: Equity
Before: Lindsay J
Decision:
Orders made, pursuant to section 86A of the Trustee Act 1925 NSW, to approve an arrangement for transfer of the management of an incapable person’s interest in a non-compliant Special Disability Trust (formerly governed by the Social Security Act 1991 Cth) to a regime of protected estate management under the NSW Trustee and Guardian Act 2009 NSW

Catchwords:
MENTAL HEALTH — Management of estate — Person incapable of managing her affairs — Approval of transfer of management of incapable person’s interest in a Special Disability Trust to a protected estate management regime
EQUITY — Trusts and trustees — Variation of trusts — Revocation of Special Disability Trust — Inherent and statutory jurisdiction — Trustee Act 1925 NSW, s 86A

Legislation Cited:
Civil Procedure Act 2005 NSW
Guardianship Act 1987 NSW
Infants Custody and Settlement Act 1899 NSW
NSW Trustee and Guardian Act 2009 NSW
Powers of Attorney Act 2003 NSW
Social Security Act 1991 Cth
Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 NSW
Succession Act 2006 NSW
Trustee Act 1925 NSW
Trustee Act 1958 Vic
Uniform Civil Procedure Rules 2005 NSW
Variation of Trusts Act 1958 (Eng)
Uniform Civil Procedure Rules 2005 NSW

Cases Cited:
Ability One Financial Management Pty Ltd and Anor v JB by his Tutor AB [2014] NSWSC 245
AC v OC (a minor) [2014] NSWSC 53
Chapman v Chapman [1954] AC 430
Cisera v Cisera Holdings (2018) 98 NSWLR 747
CJ v AKJ [2015] NSWSC 498
CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98
David by her tutor the Protective Commissioner v David (1993) 30 NSWLR 417
Fountain v Alexander (1982) 150 CLR 615
Gibbons v Wright (1954) 91 CLR 423
In re New [1901] 2 Ch 534
In re Seale’s Marriage Settlement [1961] Ch 574
In re Tollemache [1903] 1 Ch 457
In re Weston’s Settlements [1969] 1 Ch 223
In re Windeatt’s Will Trusts [1969] 1 WLR 692
IR v AR [2015] NSWSC 1187
McNee v Lachlan McNee Family Maintenance Pty Ltd [2020] VSC 273
PB v BB [2013] NSWSC 1223
Perpetual Trustee Co Ltd v Fairlie-Cunningham (1993) 32 NSWLR 377
Perpetual Trustees Victoria Ltd v Barns (2012) 34 VR 387; [2012] VSCA 77
Re AAA; Report on a Protected Person’s Attainment of the Age of Majority [2016] NSWSC 805
Re Eve at [1986] 2 SCR 408
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Saunders v Vautier (1841) 4 Beav 115; 49 ER 282
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218
Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406

Texts Cited:
Lewin on Trusts (Thomson Reuters, London, 20th edition, 2020)
Jacobs’ Law of Trusts in Australia…

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 PDC

Details

AGLC: Re PDC [2021] NSWSC 1701
Case: [2021] NSWSC 1701
Decision Date: 23 December 2021

CaseChat Overview and Summary

In the case of Re PDC, the matter was brought before the court concerning the management of the estate of an individual deemed incapable of managing her affairs. The dispute involved the transfer of management of the incapable person's interest in a Special Disability Trust to a protected estate management regime. The decision was made by the Supreme Court of New South Wales, Equity Division.

The court was required to determine whether the transfer of management of the Special Disability Trust to a protected estate management regime was appropriate and lawful, considering the individual's incapacity. Additionally, the court had to examine the inherent and statutory jurisdiction to revoke the Special Disability Trust under the Trustee Act 1925 (NSW), section 86A, and whether this could be exercised in the circumstances of the case.

The court found that the individual was indeed incapable of managing her affairs and that the transfer of management to a protected estate management regime was in her best interests. The court considered the inherent jurisdiction to manage the estate of an incapable person and determined that it was appropriate to revoke the Special Disability Trust under section 86A of the Trustee Act 1925 (NSW). The court found that the revocation was necessary to ensure that the individual's interests were adequately protected and managed.

The court granted the application to transfer the management of the Special Disability Trust to a protected estate management regime and revoked the trust under section 86A of the Trustee Act 1925 (NSW). The decision was made in the best interests of the incapable person, and the court emphasised the importance of protecting the rights and interests of individuals who are unable to manage their own affairs.

Orders