Re R

[2000] NSWSC 886

CITATION:	Re R [2000] NSWSC 886
CURRENT JURISDICTION:	Equity Division Protective List
FILE NUMBER(S):	SC 5/2000
HEARING DATE(S):	16/08/2000 and 17/08/2000
JUDGMENT DATE:	17 August 2000
PARTIES :	EAR (P) GGR (D1) Guardianship Tribunal of New South Wales (D2) Protective Commissioner of New South Wales (D3) JR (D4)
JUDGMENT OF:	Young J

COUNSEL :	S Winters (P) J Sexton SC (D3) L Ellison (D4)
SOLICITORS:	Muggenthaler & Associates (P) Connery & Partners (D3) John Fisicaro & Co (D4)
CATCHWORDS:	ADMINISTRATIVE LAW [109]- Appeal- Extent to which decision of Tribunal should be respected - MENTAL HEALTH [9]- Protection order- Appeal from Guardianship Board- Incapable person empowering son- Son validly using power of attorney for both father and son's benefit- Whether conflict of interest sufficiently serious to pass over son- Tribunal could properly find affirmatively.
LEGISLATION CITED:	Guardianship Act 1987, s 25G, s 67 Conveyancing Act, 1919, s 163B(2)(b)
CASES CITED:	Re B [2000] NSWSC 44 Bank of Bengal v Fagan (1849) 5 Moore Indian Appeals 27; 18 ER 804 Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 Haines v Leves (1987) 8 NSWLR 442 Holt v Protective Commissioner (1993) 31 NSWLR 227 Hordern v Hordern [1910] AC 465 Ex parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31 King v The Guardianship Tribunal (Cohen J, 22.6.1998) Re L [2000] NSWSC 721 Re Mc (1989) 3 VAR 87 Re M (1988) 2 VAR 213 PY v RJS [1982] 2 NSWLR 700 Oxenden v Compton (1793) 4 Bro CC 232; 29 ER 868; (1793) 2 Ves 69; 30 ER 527 Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254 Reckitt v Barnett, Pembroke & Slater Ltd [1928] 2 KB 244 Retarded Children's Aid Society Ltd v Day [1978] 1 CR 437 Re Sefton [1898] 2 Ch 378 Vyse v Foster (1874) LR 7 HL 318 Re W [2000] 1 All ER 175
DECISION:	Appeal dismissed.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

PROTECTIVE LIST

YOUNG J

THURSDAY 17 AUGUST 2000

5/2000 - RE R

JUDGMENT

1 HIS HONOUR: This is an appeal from the Guardianship Tribunal (the “Tribunal”) in respect of its decision of 8 December 1999 whereby the Tribunal made a financial management order under the Guardianship Act 1987 subjecting the estate of the first defendant to management under the Protected Estates Act 1983 and committing the management to the Protective Commissioner of New South Wales.

2 Originally the appeal was made both under section 67 of the Guardianship Act 1987 and section 21 of the Protected Estates Act 1983. However it is now acknowledged on all sides that since an amendment to the Protected Estates Act in 1997 there can be no appeal from the Tribunal under section 21 of that Act. Accordingly, I need only to consider the appeal under section 67 of the Guardianship Act. The section, so far as is relevant, provides that a party to a proceeding before the Tribunal may appeal to the Supreme Court from any decision of the Tribunal as of right on a question of law, or by leave of this Court on any other question. No leave was ever sought, so I am dealing with an appeal as of right on a question of law.

3    The grounds of appeal are set out in the summons which was filed on 3 February 2000. The grounds are:

"(a) The Tribunal lacked statutory authority to make a financial management order pursuant to s 25G of the Guardianship Act . The Tribunal's function was to consider the First Defendant's capability to manage his own affairs, but the Tribunal considered matters not relevant to its statutory function, including expressing a view that a loan agreement executed on 26 October 1999 placed the Plaintiff in a conflict of interest...

(b) The Tribunal erred in the exercise of its authority to make a financial management order in that the weight of evidence establishes that it is not in the First Defendant's best interests that the order be made.

(c) The Tribunal erred in law in misconstruing its function as determining whether or not the power of attorney executed by the First Defendant on 17 November 1997 should remain in place with the Plaintiff continuing to act as his father's attorney in relation to management of the First Defendant's estate...

(d) The Tribunal erred in law in taking into account an irrelevant consideration, namely a selected passage from a Green Paper on Powers of Attorneys released by the Land Titles Office in October 1999.

(e) The Tribunal erred in law by misconstruing the power of attorney executed by the First Defendant in that it failed to recognise that the First Defendant expressly authorised the Plaintiff to execute an assurance or other document, or do any other act, whereby a benefit is conferred on the Plaintiff.

(f) In determining who to appoint as manager of the First Defendant's estate, the Tribunal erred in having regard to evidence that in 1974 the Plaintiff was the managing director of a company which went into liquidation."

4 The Protective Commissioner filed a cross-claim seeking an order under the Protected Estates Act if the appeal were allowed, setting aside or revoking the power of attorney of 17 November 1997 and for an account. The defence to that cross-claim essentially is that the Protective Commissioner lacks standing to make those claims.

5    There is no contest that the first defendant is a person incapable of managing his own affairs. That was common ground before the Tribunal and before this Court.

6    The real people behind this litigation are the plaintiff and the fourth defendant. The plaintiff is the first defendant's son and only surviving child Edward. The fourth defendant is the widow of the first defendant's deceased eldest son John, who died on 19 September 1995.

7    A significant background factor in the case is the discretionary trust (the “Trust”) which was made by Mr Michie, solicitor, on behalf of the first defendant. The discretionary beneficiaries of the Trust are the first defendant's children or grandchildren and all their spouses. The Trust has substantial assets. It would seem that there is about $854,000 invested in mortgages or on cash management trust subject to a debt to the first defendant of $280,000. The plaintiff appears to be virtually in charge of the administration of this Trust as well as the person who receives the income.

8 On 22 October 1997 the first defendant had a stroke and was admitted to Ryde Hospital for five days. On 17 November 1997 the first defendant executed a general power of attorney in favour of the plaintiff. The power of attorney would, unless the Court made an order, continue after any loss of capacity. The power of attorney included a provision referred to in section 163B(2)(b) of the Conveyancing Act 1919, authorising the donee to execute an assurance, as a result of which a benefit could be conferred on the donee appointed by the power of attorney.

9    Commencing in March 1998, loan agreements were executed on behalf of the first defendant to lend to the plaintiff various sums. What was happening was that the first defendant had invested a considerable amount in real estate. That real estate, commencing in early 1998,was being realised and was producing a considerable amount of cash. In March 1998 $1.45 million was the subject of a loan agreement from the first defendant to the plaintiff. The documentation showed that this money was loaned to the plaintiff at 4.8 percent interest repayable - "(i) three months from the date of this agreement; (ii) such later time as decided by (the first defendant)".

10    There were further loan agreements in virtually identical form save for the amount and interest rate. The final loan document in the series bears date 26 October 1999. This appears to be a consolidation of previous loans. The amount lent was $4,861,593.33. The plaintiff signed under the power of attorney on behalf of the first defendant as lender and on his own behalf as borrower. The loan agreement was in the same form as previously: the interest rate was five percent.

11    I should mention that the plaintiff places great store on a document executed by the first defendant on 5 April 1998. Omitting the address and date it reads as follows:

"I have made my son Edward manager of my estate as long as we both live.
If I become mentally/physically incapicated [sic], Ed is to care for me in consultation with DR HANNAN or his delegates.
Ed is to act as he sees fit to protect, consolidate and expand my estate, so that it will be as fully sheltered as possible from taxation both here and abroad, when my estate passes to Ed and his heirs.
I exempt Ed and his family for the return of all loan monies and interest, Ed accrues from Trust and Sales Real Estate loans etc from my estate.
If Ed dies before me, I want Ed's wife Gwyeneth and children to take over from Ed, my health & estate care needs".

12    The document is in the plaintiff's handwriting. However, the evidence is that the first defendant asked neighbours to witness his signature to the document not in the presence of the plaintiff.

13    In November 1999 the plaintiff contracted to purchase a waterfront property in Bayview, New South Wales, for $3.6 million. The plaintiff had for some years been living in California, USA. This is significant because the plaintiff says that the arrangements with his father were that the family would be saved a lot of tax if money were lent to the plaintiff because the plaintiff was not an Australian resident, the capital would earn income, there would be no gift duty either in Australia or in the United States and the plaintiff would be able to build up the family estate.

14    Turning back to the Bayview property, the purchase was settled in January 2000 and the plaintiff has become the registered proprietor of the property. The plaintiff has signed a mortgage to the first defendant for $4,861,600 to secure the loan. The mortgage remains unregistered because it would seem there was an unsatisfied requisition from the Registrar General. The mortgage does not provide for interest and instead of repayment on demand makes repayment due on 27 January 2010.

15    Although this is an appeal on a question of law, it is necessary to set out that brief background because one needs to examine the decision of the Tribunal in light of that background. However, I regret to say that a fair amount of time was expended in cross- examination. Perhaps I permitted cross-examination to extend too long.

16    The submission was made during addresses that on this type of appeal the Court should, unless the contrary clearly appears, merely follow what the specialist tribunal has done.

17    I am not at all sure that this is correct. There are three overlapping principles:

A. Where there is a specialist tribunal, like the General Medical Council in England, where the tribunal consists of the top people in a profession, a court of review should not lightly interfere with a finding of fact made by that tribunal.

B. Where there is an Act of Parliament committing the ordinary fact finding task to a tribunal “it would not be right to upset them and have fresh hearings on points of meticulous criticism of their reasoning”. The Court should review the decision “broadly and fairly” and not interfere as long as the tribunal members have “directed themselves properly and fairly on the facts and they have not gone wrong in law”, per Lord Denning MR, Retarded Children’s Aid Society Ltd v Day [1978] 1 CR 437, 443.

C. Where a referee makes a finding or exercises a discretion on behalf of the Court, that decision should be accepted by the Court on review unless shown to be so flawed as to warrant reconsideration: Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409, 420.

18    The Guardianship Tribunal is not a specialist tribunal in the sense of proposition A. The mere fact that it has a legal member, a medical member and a member who has had day to day experience with the problems of mental disability does not make it such. However, it does fall within proposition B. But, as this appeal is on law only, it is unnecessary to pursue this matter further.

19 I should add that there do not appear to be many appeals from the Tribunal. In King v The Guardianship Tribunal - Cohen J, 22 June 1998 (25/1998), the Court briefly considered the extent of an appeal under s 67. Unfortunately, that judgment is not readily available even in the unreported judgments on computer. That judgment did not fully canvass the extent of the nature of the appeal when leave is granted to appeal other than on law. The scope of such appeals may need to be reconsidered in the future.

20    The application before the Tribunal was made by the fourth defendant. It first came before the Tribunal on 16 September 1999 when the matter was adjourned until 19 November 1999. Having regard to the material before the Tribunal at that date it determined that there was no need to appoint a guardian for the first defendant. However, between 19 November 1999 and 8 December 1999 the Bayview transaction was reported to the Tribunal. The Tribunal seems to have considered that not only did it have concern about that transaction, but it also had concern about the sincerity with which an arrangement had been worked out within the family that the existing informal protection of the first defendant by the plaintiff could continue. The Tribunal appeared to be concerned with the matter of conflict of interest, a matter to which I will return.

21    On 8 December 1999 the Tribunal did make the order to which I have already referred and which in due course I will set out verbatim. It said at page five of its judgment:

"The issue for the Tribunal was whether the Power of Attorney executed by the first defendant on 17 November 1997, should remain in place with the plaintiff continuing to act as his father's attorney in relation to the management of the first defendant's finances or whether the circumstances relating to the plaintiff's conflict of interest warrants suspending the Power of Attorney and putting in place a management order."

22 The Tribunal then referred to the Land Titles Office Green Paper and made some observations on the law regarding powers of attorney, and noted that the first defendant had received advice from his accountant that an agreement with the plaintiff who was a non-resident for tax purposes would be a good way of minimising tax. It then looked at section 25G of the Guardianship Act which it set out. The Tribunal then said at page 8 of the judgment:

"It is not in dispute that the first defendant is incapable of managing his financial affairs. On the available evidence the Tribunal was satisfied that it is in the best interests of the first defendant that the Power of Attorney executed by him on 17 November 1997 naming his son, the plaintiff, as his attorney, should be suspended and that the first defendant's affairs be placed under a formal management order.
Who Should Be The Manager?
In her application, the fourth defendant proposed that management of the first defendant's affairs be committed to the Protective Commissioner.
There was no other proposal before the Tribunal. The plaintiff and the legal representatives for the first defendant submitted that the application for a Financial Management Order be dismissed.
Usually a person who would face a conflict of interest and duty would not be appointed as a financial manager to a person who had lost capacity to manage his or her finances."

23    In the quote that I have set out I have deliberately substituted tags such as “the first defendant” instead of names to preserve confidentiality should this judgment ever be reported. The Tribunal then made the following formal findings at page 10:

"(1) The first defendant is not capable of managing his affairs;
(2) there is a need for another person to manage those affairs;
(3) that it is in the best interests of the first defendant that a financial management order be made; and
(4) Management of the property and affairs of the first defendant should be committed to the Protective Commissioner".

24    The appeal is an appeal on a question of law only. It is sometimes quite difficult to separate out what are matters of fact and what are matters of law. In dealing with an appeal from a Tribunal of this nature, as is said in Wade and Forsyth, Administrative Law, (Oxford University Press, 1994) 7th Edition at page 945:

"It is of great importance that it [the right of appeal on a point of law] should be generally available, so that the courts may give guidance on the proper interpretation of the law and so that there may not be inconsistent rulings by tribunals in different localities. It is through appeals that the courts and the tribunals are kept in touch, so that the tribunals are integrated into the machinery of justice."

This is the prime reason why there is an appeal as of right.

25 Just what is in the category of a question of law is sometimes hard to decide. However, generally speaking the matter is quite clear. If there is a question as to the meaning of an Act in the circumstances, if there are other questions of construction of the law or vital agreements, if there is a finding of fact made of which there is no evidence to support it or perhaps if so much irrelevant material enters into the decision making process that it is a nullity, then one has a question of law. Outside that field, normally one has a question of fact. This is so even if there is a finding of fact which is against the evidence and the weight of the evidence: Haines v Leves (1987) 8 NSWLR 442, 469 and 470. This is an oversimplification, but, generally speaking, is the way in which the distinction operates.

26 The first ground of appeal is phrased in such a way as to indicate that the Tribunal did not have power or jurisdiction to deal with the matter. One must always be careful of such submissions, as has been noted on many occasions. As good a reference as any is Ex Parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31, a decision of the New South Wales Full Court. In that case, Sugerman J said at page 33 that:

"The questions upon which a court of limited jurisdiction may find it necessary to adjudicate in the course of an inquiry before it may be classified for present purposes into two broad categories. Some relate to matters which are extrinsic to the subject matter of the inquiry itself but, by the terms of the conferment of jurisdiction, are essential to the competence of the court to undertake the inquiry and to carry it to a valid conclusion. Others, although related to the validity of the court's conclusion, are related to validity in a different sense...
Objections founded on the personal incompetency of the Judge, or on the nature of the subject-matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which, whether apparent on the face of the proceedings or brought before the superior Court by affidavit, are extrinsic to the adjudication impeached. But an objection that the Judge has erroneously found a fact which, though essential to the validity of his order, he was competent to try, assumes that, having general jurisdiction over the subject-matter, he properly entered upon the inquiry, but miscarried in the course of it."

27    To my mind the first ground of appeal is in the second category. There is no doubt that the Tribunal was properly constituted and had general jurisdiction to consider guardianship orders. If there was any failure by the Tribunal then the failure was a mistake of law or fact in carrying out its statutory function, and those are not matters which go to jurisdiction or statutory authority.

28    The second ground of appeal as phrased is on a question of fact because it merely deals with the weight of the evidence. Even if it is construed as being an appeal over a finding allegedly against the evidence and the weight of the evidence, it would raise only a question of fact. This is immaterial as, in any event, I do not consider that that ground has been made out. Most of the facts are beyond dispute, the only point that is a matter of contention and indeed was the one on which the appeal really focused on was the way in which the Tribunal dealt with what it called “conflict of interest”.

29 It is quite clear, both from the way the Tribunal approached the matter and from the way in which the appeal was argued, that to make an order the Tribunal had to follow section 25G of the Guardianship Act 1987. That section is as follows:

"The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that:
(a) the person is not capable of managing those affairs, and
(b) there is a need for another person to manage those affairs on the person’s behalf, and
(c) it is in the person’s best interests that the order be made."

30    There is no contest about (a), but there is a contest as to the meaning of the word "need" in (b) and the words "best interests" in (c).

31    So far as "need" is concerned, Ms Winters for the plaintiff put that if the existing informal arrangement between the incapable person and somebody else is satisfactory then it cannot be said that there "is a need" for another person to manage those affairs. I have some doubt about that proposition. Indeed the way in which matters are often approached in the Protective List is that a person usually has a need for someone else to manage their affairs if he or she himself or herself cannot do it. This triggers the jurisdiction to make an order, though the personal arrangement may mean the Court in its discretion does not make the order.

32 When exercising this discretion the Court bears in mind that ordinarily members of the community consider that guardianship or an outside manager is a measure of last resort; see Re M (1988) 2 VAR 213. I merely note this in case I be later misquoted. In the present case, as the Tribunal, to my mind, actually applied the test that Ms Winters contends for and which nobody else has contradicted, she cannot complain of any error of law. The Tribunal accepted the proposition that one takes into account the current circumstances and asks in those circumstances whether there is a need for someone else to manage the affairs. If the informal arrangements are appropriate then there is no such need. Ms Winters says that the Tribunal did not approach the matter that way, but, with great respect, that is the only explanation as to why it did not make an order in November but did in December. In November the Tribunal seemed to be content that the existing arrangements and statements made to the Tribunal by members of the family were sufficient protection.

33    Once one gets to the stage that the Tribunal actually applied the right test then everything else seems to me to be within the realm of a question of fact.

34 One then turns to the words "best interests". Here there was quite a debate as to what the words meant. I have looked through judicial dictionaries and the most helpful case I have found is one of my own decided in 1986 in which I said that "It is hard to find a good definition of the words 'best interests' "; see Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254, 260. The last fourteen years have not produced any further clarification.

35 I would agree, however, with the Victorian AAT that the “best interests” must include the welfare, health and well-being of the person in a wider sense than is suggested by protection from neglect, abuse or exploitation (Re Mc (1989) 3 VAR 87).

36 I think that one needs to look at the cases decided in courts of protection over the last couple of hundred years to see the way in which the question as to what is in the interests of the incapable person has been approached. One of the basic authorities in that area is Oxenden v Compton (1793) of which there are two reports in different forms, one in 4 Bro CC 232; 29 ER 868 and the other in 2 Ves 69; 30 ER 527. That case involved the question as to whether various transactions involving the family of a lunatic were for the benefit of the heir at law of the lunatic or for the personal representative of the lunatic, that being a time, of course, when one’s land descended to one’s heir at law and one’s personal property descended to one’s executor. It is quite clear that the Lord Chancellor, Lord Loughborough, thought that all of that was quite irrelevant. He said in 30 ER at 532:

"In all these cases the Court makes an election for the lunatic, as he would have done, if in his senses. What merits have the next of kin? What equity have they? Only that the lunatic would not have applied it so."

37 In the report in Brown at 29 ER 869, again the reporter stresses that what is important is what is for the benefit of the lunatic, and what may be for the benefit of his heir or his personal representative is not a matter that comes into account. These views are picked up in other leading cases such as Re Sefton [1898] 2 Ch 378. What is in the interests of the incapable person under the general cases has been taken to mean what is for the benefit of the lunatic personally and not for his family or his friends or his estate.

38 The traditional way of treating this sort of problem is to assume that any arrangement that the incapable person has made before he became incapable to benefit a relative is not to continue. Thus, the Court appoints an administrator or a manager so that the Court can, in a proper case, give to members of the family of the incapable person a benefaction that the incapable person may well have given had incapacity not supervened. There are many cases referred to in Collinson on Lunacy (1812 edition) pp 242-5 which I noted in Re B [2000] NSWSC 44.

39 This approach is also echoed in the recent English case of Re W [2000] 1 All ER 175. In that case a power of attorney was given to Mrs X. Mrs X took advice and she found that it would be very tax effective if the estate of the donor of the power of attorney (her mother) was reduced below a certain figure. She then gave gifts to each of her brothers and sisters and herself of 20,000 pounds. The English Chancery Division said that although Mrs X did not portray a picture of greed or sought to do anything that was not within the best interests of the family, she acted misguidedly and not in the interests of her mother; see page 181. So, there is a case right in point where a person with the best will in the world, who shares things equally between herself and her brothers and sisters, and acts in what she thinks are the interests of her mother, yet the Court says she is not acting in the best interests of her mother. Indeed, cases like Re W show that there is a good argument that a person who is given a power of attorney cannot give money away, and in particular cannot give money to themselves. In Re W the solution was for the court to sanction the gifts under the usual practice of the Protective Court.

40 However, Ms Winters submits that when one has a power of attorney in the terms of the present one, the terms of the power of attorney and section 163B(2)(b) of the Conveyancing Act overcome that general principle.

41    The fallacy of that argument is that one has to distinguish carefully between two questions; (a) is the donee of the power of attorney authorised so that as between the donee and a third party the donor will be bound by a transaction? and (b) as between the donor and the donee, is the donee accountable for what he or she has done?

42    They are two completely separate questions. I do think, with respect, that the Tribunal did not clearly distinguish between the two. I also think that it is probably correct to say that the statements of law about powers of attorney made in the Tribunal’s judgment were infelicitously expressed. That in part came about by relying on a Green Paper which was published by the Land Titles Office for the purpose of considering whether there were discrete problems with the law regarding powers of attorney that the Parliament should rectify, rather than looking at some more learned general tome.

43    Be that as it may, I cannot really see how the effect of any error in that department had any real relevance to the actual decision that was made, because, despite any such error, the Tribunal did turn its mind to the key question, which was the question that I have stated as (b) in my above analysis. It was not at all relevant that the plaintiff had power under the power of attorney to make gifts to himself. He may have had that power, he may not have had that power, it does not matter. The question was whether it was in the best interests of the incapable person that that situation be permitted to continue.

44 The distinction that I have mentioned is well made by the English Court of Appeal in the case referred to by the Tribunal, Reckitt v Barnett, Pembroke and Slater Limited [1928] 2 KB 244, 255 where the English Court of Appeal points out that a power of attorney may give a person authority to rob the donor, but that does not make robbing the donor something that he should not be accountable for. As Scrutton LJ said, “It is a fraud if the attorney uses his power to rob his principal, but if he does rob him by doing the very thing he is empowered to do, it is immaterial”. See also the decision of the Privy Council in Bank of Bengal v Fagan (1849) 5 Moore Indian Appeals 27; 18 ER 804.

45    Ms Winters however says that the whole of the material shows that the first defendant was content to leave his estate in the hands of the plaintiff, that he signed the document dated 5 April 1998 in front of his neighbours that I have mentioned before, he gave a full power of attorney to the plaintiff, and he took advice from his accountant as to what was a tax effective way of doing what he wanted to do. Ms Winter further says that the Tribunal did not seem to think, because of the wrong view it took on the law of powers of attorney generally, that such consent of the first defendant was of any real moment, and accordingly, it directed its mind to the problem of conflict and not to the real question.

46 I do not think that that is a correct analysis of what the Tribunal did, but even if it were, it would seem to me that it was in the realm of a question of fact. I was referred to the decision of the Privy Council in Hordern v Hordern [1910] AC 465 which relies to a great extent on the previous decision of the House of Lords in Vyse v Foster (1874) LR 7 HL 318. Those cases deal with a situation where A and B are in partnership and A dies and appoints B his executor. In such a situation, the Court takes the view that the fiduciary duty owed by B must be measured taking into account that A made the deliberate decision to appoint his partner executor, and so must have anticipated that there would have been some conflict of duty and interest. Accordingly A's heirs cannot complain if, in fact, there is some conflict. The principle is clear. It is a principle which actually modifies the fiduciary duty rather than merely go to breach as was contendd, I think, in Mr Sexton SC's submissions for the Protective Commissioner. However, one must, when reading cases such as Hordern's case, pay particular attention to what is on page 475 which is a quote from Vyse v Foster at 332 that:

"…there might, from the peculiar position of the executor as a surviving partner, be reasons for watching narrowly the course which he would take with regard to the fulfilment of the contract".

47    Thus, even if one does take full recognition of the way in which the first defendant went about things before his supervening incapacity, to allow a person with conflicts of interest to continue is something that still has to be watched carefully. If it has to be watched carefully then it seems to me that it is just a question of fact and degree as to whether in all the circumstances it is in the best interests of the incapable person that that situation continue.

48 There are some real problems in this area that cannot be denied. The authorities show that if one can have members of the family manage an incapable person’s estate then that is often the preferred course, see eg Holt v Protective Commissioner (1993) 31 NSWLR 227. It is also true that there are some cost ramifications if an independent person has to manage the affairs. I evaluated this problem together with the countervailing problem of the expertise of private managers in Re L [2000] NSWSC 721. One does need to evaluate the cost on the one hand and the independence on the other hand of a private manager and come to a decision, but that is a matter of fact and degree.

49    As I pointed out in Re L, when private managers are to be appointed, especially when there is a large amount of money concerned, the Court or the Tribunal has to be satisfied that: (a) any so called financial expert has, in fact, expertise to allow him or her to assist the incapable person in the circumstances of the particular case; and (b) any relative has either no conflicts of interest or, alternatively, the conflicts of interest are able to be handled by appropriate guidelines from the Deputy Registrar in the Protective Division.

50    There will always be some conflict. Re W shows some of the benign conflicts that can happen. There will be problems for people working out whether small donations should be made to charities, whether gifts should be made to relatives for Christmas and things of that nature. Most of those can be dealt with sensibly by an informal arrangement under a power of attorney or under the direction of the Protective Division. However, in the instant case the real question was whether it was in the best interests of the first defendant to continue with the existing arrangement or to have an independent manager.

51 One of the key points that was made by Powell J in PY v RJS [1982] 2 NSWLR 700 when laying down the classic test regarding when a manager is to be appointed was that people who are incapable of managing their affairs are in danger of exploitation and they must be protected against the danger of exploitation.

52    It seems to me, even forgetting about what was said about the law of powers of attorney, that the Tribunal directed itself to the key question. This was whether there was going to be a danger of exploitation in the existing arrangement. Would there be a danger that even though he might be authorised to do so, the plaintiff might breach his fiduciary duties, perhaps taking the view that he was not breaching his fiduciary duties if he managed the estate in such a way that he would eventually inherit more than he had at the moment? It seems to me that the Tribunal did assess those sorts of matters when working out whether it would be in the best interests of the incapable person that a manager be appointed, and that if the Tribunal did make any error, and I do not think it did, it would be an error of fact.

53    All this leads to my view that there is no error of law in what the Tribunal did and, accordingly, the appeal should be dismissed with costs.

54    The cross-claim raises different issues, some of which are now otiose, others I do not think there was very much evidence on and I think at the moment I will merely stand the cross-claim over until at least later in the day.

55    Ms Winters has made an application for a stay. I do not know what I will do on that but I will stand that over until 12 noon today. Ms Winters has also submitted that costs should only be the costs of the Protective Commissioner as it was unnecessary for the fourth defendant to be separately represented. I will deal with that in due course and what I have already said about costs is not to preclude that argument. I also meant to say I am very grateful to Ms Winters. Although she did not succeed in the long run, she stood up extremely well to the cross-fire and I am greatly indebted to her for the assistance that she gave.

56    The plaintiff should pay 25 percent of the fourth defendant's costs and the other 75 percent should be paid out of the estate.

57    I formally affirm the decision of the Tribunal.

58    The notice of motion for a stay can be filed in Court.

59    I have now considered the question of a stay. Prima facie my decision is correct. The only "prejudice" will be that fees might be incurred and chargeable to the estate and the Protective Commissioner's actions pending the possible appeal. I regret that there might be some cost, but on balance I think it better that that be incurred than not be incurred so I decline to grant a stay.

60    I stand over the cross-claim part heard before me for mention on

10 October 2000 at 9.30 am.

61    The Certificate of Title and original mortgage being Exhibit FX03 are handed out to the solicitor for the third defendant; the other exhibits should remain with the papers for the time being.

62    I dismiss matter 5169/99 in the Equity Division as being unnecessary.

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Last Modified: 09/27/2000