Re X

Case [2016] NSWSC 275 17 March 2016

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Supreme Court

New South Wales

Medium Neutral Citation: Re X [2016] NSWSC 275
Hearing dates: 8 March 2016
Date of orders: 17 March 2016
Decision date: 17 March 2016
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Declaration, pursuant to s 41 of the NSW Trustee and Guardian Act 2009 NSW, that the plaintiff (a young adult) is incapable of managing her affairs, with consequential orders for management of her protected estate by her parents, including a direction designed to permit her, as a protected person, to self-manage personal finances in the ordinary course of daily life

Catchwords:
PROTECTIVE JURISDICTION – Financial management – Incapacity for self-management – Management of protected estate – Appointment of family members as managers
MENTAL HEALTH - Management and administration of property – Incapacity for self-management – Comparison of protected estate management and a private protective trust arrangement
Legislation Cited: Civil Procedure Act 2005 NSW
Corporations Act 2001 Cth)
Court Suppression and Non-publication Orders Act 2010 NSW
Guardianship Act 1987 NSW
NSW Trustee and Guardian Act 2009 NSW
Protected Estates Act 1982 NSW
Succession Act 2006 NSW
Trustee Companies Act 1964 NSW,
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: A v A [2015] NSWSC 1778 at 35- 39
Ability One Financial Management Pty Ltd and Anor v JB by his tutor AB [2014) NSWSC 245 at [30]-[32]
CJ v AKJ [2015] NSWSC 498 at [14]-[53], [27]-[34]
Clay v Clay (2001) 202 CLR 410 at 428-430 and 432-433
Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423
David by her Tutor the Protective Commissioner v David (1993) 30 NSWLR 417 at 436E-437C
GAU v GAV [2014] QCA 308 at [48]
Gibbons v Wright (1954) 91 CLR 423 at 434-438
Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238C-239B, 240D, 241B-F and 243P-F; 238D-F and 241G-242A
JPT v DST [2014] NSWSC 1735 at [35]
M v M [2013] NSWSC 1495 at 50
Marion’s case (1992) 175 CLR 218 at 258-259
Miller v Cameron (1936) 54 CLR 572
PB v BB [2013] NSWSC 1223 at [8]
Perpetual Trustee Co. Limited v Fairlie-Cunninghame (1993) 32 NSWLR 377
Protective Commissioner v D (2004) 60 NSWLR 513 at 540-542, 543 and 544-545; JPT v DST [2014] NSWSC 1735 at [35]
Quek v Beggs (1990) 5 BPR [97405] at 3-5 and 18
Re Eve [1986] 2 SCR 388 at 407-417; 31 DLR (4th) 1 at 14-21
Saunders v Vautier: CPT Custodian Pty Limited v Commissioner of State Revenue (Victoria) (2005) 224 CLR 98 at 1018-121
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218
Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243
Wellesley v Wellesley (1828) 2Blins 124 at 131; 4 ER 1078 at 1081
X v Sydney Children’s Hospitals Specialty Network & Anor [2011] NSWSC 1272
Texts Cited: HS Theobald, The Law Relating to Lunacy (Stevens & Sons, London, 1924), pages 380 and 382
Category: Principal judgment

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 X

Details

AGLC: Re X [2016] NSWSC 275
Case: [2016] NSWSC 275
Decision Date: 17 March 2016

CaseChat Overview and Summary

In the matter of X, a protected estate was established under the Property Law Act 1958 (Vic) as the individual lacked the capacity to manage their own financial affairs. The dispute arose between the family members of X who sought to act as managers of the protected estate. The Victorian Civil and Administrative Tribunal (VCAT) was tasked with determining the appropriate management of X's financial affairs and the appointment of managers.

The primary legal issue was whether the protected estate, which allowed for the management of X's financial affairs by appointed managers, was the appropriate mechanism for handling X's finances, or whether a private protective trust arrangement should be established. The court had to assess whether the protected estate was sufficient to ensure the protection of X's interests, or if a private protective trust arrangement would provide better safeguards for the individual.

In determining the appropriate course of action, the court considered the statutory framework provided by the Property Law Act 1958 (Vic) and the need to balance the protection of the incapacitated individual with the rights and responsibilities of the appointed managers. The court concluded that the protected estate was an adequate mechanism to ensure the proper management of X's financial affairs, and therefore, appointed the family members as managers of the protected estate.

The court's decision resulted in the appointment of the family members as managers of X's protected estate, ensuring that X's financial affairs would be managed appropriately. This decision provides guidance for future cases involving the management of incapacitated individuals' financial affairs, demonstrating the importance of balancing the protection of the individual with the rights and responsibilities of appointed managers.

Orders