Re S, an incapacitated young person - [2017] NSWSC 859

Supreme Court

New South Wales

Medium Neutral Citation: Re S, an incapacitated young person [2017] NSWSC 859
Hearing dates: 22 June 2017
Date of orders: 29 June 2017
Decision date: 29 June 2017
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Orders made (some with immediate effect, others with postponed effect) to aid an orderly transition from management of an incapacitated person’s estate via a trust to management as a protected estate, subject to the NSW Trustee and Guardian Act 2009 NSW

Catchwords:
GUARDIANSHIP – Protected person – Financial management – Appointment of manager – Private manager – Transition from trust regime to protected estate management regime – Protective orders made to facilitate orderly transition
MENTAL HEALTH – Protected person – Financial management – Management of trust property – Management of protected estate – Transition from trust regime to protected estate management regime – Form of orders
Legislation Cited: Civil Procedure Act 2005 NSW
Corporations Act 2001 Cth
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
AG v AP-G [2013] NSWSC 272
CJ v AKJ [2015] NSWSC 498
GAU v GAV [2016] 1 Qd R 1
Holt v Protective Commissioner (1993) 31 NSWLR 227
Holt v Protective Commissioner (1993) 31 NSWLR 227
JP v CP [2013] NSWSC 273
JP v CP [2013] NSWSC 373
Letterstedt v Broers (1884) 9 App Cas 371
M v M [2013] NSWSC 1495
McLean v Burns Philp Trustee Co Pty Limited (1985) 2 NSWLR 623
Miller v Cameron (1936) 54 CLR 572
Re AAA; Report on a protected persons attainment of the age of majority [2016] NSWSC 805
Re Eve [1986] 2 SCR 388 at 407-411; 31 DLR (4th) 1
Re LSC and GC [2016] NSWSC 1896
Re Managed Estates Remuneration Orders [2014] NSWSC 383
Re TLH, a protected person [2017] NSWSC 737
Re W and L (Parameters Of Protected Estate Management Orders) [2014] NSWSC 1106
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218
SLJ v RTJ [2017] NSWSC 137
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Mother of First Defendant
First Defendant (“S”): A Minor physically incapable of managing her affairs
Second Defendant: Equity Trustees Wealth Services Limited ACN 006 132 332
Representation:
Counsel:
Plaintiff: G Burton SC
First Defendant (“S”): No appearance
Second Defendant: GJ Basha, Solicitor
NSW Trustee (Amicus Curiae): C Phang
Solicitors:
Plaintiff: McLaughlin & Riordan
First Defendant (“S”): No appearance
Second Defendant: Bartier Perry

File Number(s): 2016/00191323

Judgment

INTRODUCTION

By these proceedings, the parents of an incapacitated young person (their 16-year old daughter) seek:

to replace the trustee of a trust fund that represents the substance of the wealth of their daughter;

in anticipation of a determination of the trust when she attains the age of majority (18 years), if not earlier, to have her estate brought under a regime of management governed by 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.

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Details

Case: [2017] NSWSC 859
Decision Date: 29 June 2017

CaseChat Overview and Summary

The parties involved in the case were a young person, referred to as S, who lacked capacity due to mental health issues, and the Public Advocate of New South Wales. The dispute centred around the management of S's financial affairs during a transition from a trust regime to a protected estate management regime. The case was heard in the Supreme Court of New South Wales, specifically within the Guardianship Division.

The primary legal issues the court had to address were whether the existing trust arrangement was appropriate for S's current needs and whether the transition to a protected estate was warranted. Additionally, the court had to determine the form of orders necessary to facilitate an orderly transition and ensure S's financial interests were adequately managed.

The court found that the existing trust arrangement, while initially suitable, was no longer appropriate due to changes in S's circumstances. The transition to a protected estate was deemed necessary to better safeguard S's financial interests. The court issued several protective orders to facilitate the transition, including appointing a private manager to oversee S's financial affairs. These orders were designed to ensure that S's financial management was handled in a manner that protected her interests and provided for her needs. The court's decision underscored the importance of adapting financial management arrangements to the evolving needs of protected persons.

The final orders included the appointment of a private manager to administer S's financial affairs under the new protected estate regime. The court also mandated that the transition be conducted in a manner that ensured continuity and stability in S's financial management, with specific provisions for the orderly transfer of assets and responsibilities from the trust to the protected estate. The orders were crafted to provide clear guidance and support for the ongoing care and financial oversight of S.

Orders