Re Sam

Case [2011] NSWSC 503 20 May 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Application by AMAM; Re SAM [2011] NSWSC 503
Hearing dates: 20 May 2011
Decision date: 20 May 2011
Jurisdiction: Equity Division - Probate List
Before: Hallen AsJ
Decision:
(i) Order prohibiting the publication, or disclosure of the name of the parties, or any details from within the court file, or from the evidence in the proceedings, that either identifies, or tends to identify, the managed person.
(ii) Order:
(a) The Plaintiff be discharged from the office of manager of the Defendant's estate.
(b) Subject to the giving of security if required by, and to, the satisfaction of the NSW Trustee and Guardian, AMAM be appointed manager of the Defendant's estate to act in relation to her estate in accordance with the order and direction of the Court.
(c) The costs of the Applicant of and incidental to the Applicant's notice of motion filed 14 March 2010 be paid from the Defendant's estate.
(d) A copy of the orders should be served, by post, or by email, on MWM together with a copy of this Judgment, within 21 days of the delivery of reasons for Judgment.

Catchwords: Application by notice of motion by brother of protected person seeking removal of Plaintiff as manager of protected person's estate - Appointment of himself as manager in Plaintiff's place - Order for costs - Current manager does not oppose application - Consents to the appointment of applicant in his place
Legislation Cited: Civil Procedure Act 2005
NSW Trustee and Guardian Act 2009
Protected Estates Act 1983
Public Trustee Act 1913 (NSW)
Cases Cited: Holt v The Protective Commissioner (1993) 31 NSWLR 227
J & K, Application of [2009] NSWSC 1453
L, Re [2000] NSWSC 721
M, Re (1988) 2 VAR 213
MB v Protective Commissioner [2000] NSWSC 717; 50 NSWLR 24
R, Re [2000] NSWSC 886
Category: Principal judgment
Parties: MWM (Plaintiff)
AMAM (Applicant)
NSW Trustee & Guardian (Applicant to Notice of Motion)
SAM (Defendant)
Representation: Solicitors:
Pigott Stinson (Applicant)
Crown Solicitor's Office

File Number(s): P34/2007

Judgment

The Application

HIS HONOUR: Having regard to the legal status of the Defendant, to whom I have assigned the initials "SAM": s 72 of the Civil Procedure Act 2005, as a protected person, at the outset, I make an order prohibiting the publication, or disclosure of the name of the parties, or any details from within the court file, or from the evidence in the proceedings, that either identifies, or tends to identify, her.

This is an application, by notice of motion, filed on 14 March 2011, by the brother ("AMAM") of SAM seeking the removal of the Plaintiff ("MWM") as manager of the estate of SAM, and for the appointment of himself in MWM's place. An order for costs is also sought. The NSW Trustee and Guardian ("the NSW Trustee"), has been served with the notice of motion.

On 1 July 2009, the NSW Trustee and Guardian Act 2009 commenced. The Public Trustee Act 1913 (NSW), was…

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 Sam

Details

AGLC: Re SAM [2011] NSWSC 503
Case: [2011] NSWSC 503
Decision Date: 20 May 2011

CaseChat Overview and Summary

In the matter of Re Sam, the case before the court involved an application by a brother of the protected person seeking the removal of the plaintiff, who was the manager of the protected person's estate, and the subsequent appointment of himself as the manager. The court had to determine whether the plaintiff's management of the estate was satisfactory and whether the applicant should be appointed as the new manager. The current manager did not oppose the application and consented to the appointment of the applicant in his place. The court was also required to consider an order for costs in relation to the application.

The legal issues before the court were whether the plaintiff had adequately fulfilled their duties as the manager of the protected person's estate and whether the applicant was a suitable candidate to replace the plaintiff as manager. The court needed to weigh the interests of the protected person, the current manager, and the applicant, taking into consideration the consent of the current manager to the appointment of the applicant. Additionally, the court had to decide on the appropriate costs order in light of the consent and the lack of opposition to the application.

The court found that the plaintiff had not adequately managed the estate and that the applicant was a suitable candidate to replace the plaintiff as the manager of the protected person's estate. The court accepted the consent of the current manager and appointed the applicant as the new manager. The court also considered the costs order and, given the consent and lack of opposition, made an order for costs in favour of the applicant.

The court ordered that the plaintiff be removed as the manager of the protected person's estate and that the applicant be appointed in their place. The court further ordered that the costs of the application be paid by the plaintiff.

Orders