RL v NSW Trustee and Guardian (No 2) - [2012] NSWCA 78

Court of Appeal

New South Wales

Case Title: RL v NSW Trustee and Guardian (No 2)

Medium Neutral Citation: [2012] NSWCA 78

Hearing Date(s): 4 April 2012

Decision Date: 04 April 2012

Jurisdiction:

Before:
Campbell JA

Decision:
(1) RNL appointed to represent the Estate of PBL, for the purposes of this appeal.
(2) Title of the proceedings to be amended.
(3) Appeal allowed.
(4) In lieu of the answer given in the court below to question 2 in the amended summons, substitute the answer: "The Court declines to answer this question."
(5) Revoke the declaration numbered 5 in the court below.
(6) Replace Order 7 in the court below with:

7. The income from the Sale Fund is to be retained in the Sale Fund, and the question of entitlement to the income is to await further determination by the NSW Trustee or the Court.

(7) Add to the orders made in the court below:

9. Without prejudice to how the moneys spent pursuant to this order are ultimately borne between the net proceeds of sale of the shares in Ansell Limited, interest that accrues on those net proceeds and other money that makes up the Other Funds, until further order of the court or further direction of the NSW Trustee moneys that are spent for PBL's benefit or on PBL's care or for the management of PBL's estate are to be paid from the Other Funds other than so much of the Other Funds as represents net proceeds of sale of shares in Ansell Limited and interest that accrues on those net proceeds.

10. Orders 6, 7 and 9 pare in substitution for previous directions of the NSW Trustee concerning the setting aside of a separate fund from the proceeds of sale of the Darlinghurst garage of PBL and the manner in which that fund should be used.

(8) RL's costs of the appeal on the indemnity basis to be paid from the estate of PBL other than the Sale Fund and so much of the Other Funds as represents the net proceeds of sale of the shares in Ansell Limited.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
MENTAL HEALTH - effect of disability on civil rights and duties - death of protected person - whether rights concerning litigation begun by manager concerning manner of administration of protected person's property survives death - who has power to continue litigation

PROCEDURE - manager of protected person brings litigation concerning administration of protected person's estate - death of protected person before orders made in litigation - procedural steps to enable litigation to be concluded

WORDS AND PHRASES - "cause…

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: [2012] NSWCA 78
Decision Date: 04 April 2012

CaseChat Overview and Summary

This matter concerned an appeal before the Court of Appeal of New South Wales, brought by RL against the NSW Trustee and Guardian. The dispute arose from litigation initiated by the manager of the estate of PBL, a protected person, concerning the administration of PBL's property. PBL died before the litigation was concluded, raising questions about the continuation of these proceedings and the rights associated with them.

The central legal issues before the Court of Appeal were whether the rights concerning the litigation, commenced by the manager regarding the administration of PBL's property, survived PBL's death. The Court was also required to determine who had the power to continue such litigation following the protected person's demise. This involved considering the nature of the "cause of action" in the context of a protected person's estate and the procedural mechanisms for concluding litigation after the death of a party.

Campbell JA allowed the appeal, finding that the litigation did not abate upon PBL's death. The Court determined that the manager's claim was not personal to PBL but rather concerned the proper administration of the estate, a matter that could survive. Consequently, the Court made various orders to facilitate the conclusion of the proceedings, including appointing a representative for PBL's estate, amending the title of the proceedings, and substituting specific answers and directions regarding the management and distribution of estate funds, including the income from a Sale Fund and other moneys. The Court also made orders concerning the costs of the appeal.

Orders

Orders of the court

(1) RNL appointed to represent the Estate of PBL, for the purposes of this appeal.

(2) Title of the proceedings to be amended.

(3) Appeal allowed.

(4) In lieu of the answer given in the court below to question 2 in the amended summons, substitute the answer: "The Court declines to answer this question."

(5) Revoke the declaration numbered 5 in the court below.

(6) Replace Order 7 in the court below with:

7. The income from the Sale Fund is to be retained in the Sale Fund, and the question of entitlement to the income is to await further determination by the NSW Trustee or the Court.

(7) Add to the orders made in the court below:

9. Without prejudice to how the moneys spent pursuant to this order are ultimately borne between the net proceeds of sale of the shares in Ansell Limited, interest that accrues on those net proceeds and other money that makes up the Other Funds, until further order of the court or further direction of the NSW Trustee moneys that are spent for PBL's benefit or on PBL's care or for the management of PBL's estate are to be paid from the Other Funds other than so much of the Other Funds as represents net proceeds of sale of shares in Ansell Limited and interest that accrues on those net proceeds.

10. Orders 6, 7 and 9 pare in substitution for previous directions of the NSW Trustee concerning the setting aside of a separate fund from the proceeds of sale of the Darlinghurst garage of PBL and the manner in which that fund should be used.

(8) RL's costs of the appeal on the indemnity basis to be paid from the estate of PBL other than the Sale Fund and so much of the Other Funds as represents the net proceeds of sale of the shares in Ansell Limited.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	RL v NSW Trustee and Guardian (No 2)
Medium Neutral Citation:	[2012] NSWCA 78
Hearing Date(s):	4 April 2012
Decision Date:	04 April 2012
Jurisdiction:
Before:	Campbell JA
Decision:	(1) RNL appointed to represent the Estate of PBL, for the purposes of this appeal. (2) Title of the proceedings to be amended. (3) Appeal allowed. (4) In lieu of the answer given in the court below to question 2 in the amended summons, substitute the answer: "The Court declines to answer this question." (5) Revoke the declaration numbered 5 in the court below. (6) Replace Order 7 in the court below with: 7. The income from the Sale Fund is to be retained in the Sale Fund, and the question of entitlement to the income is to await further determination by the NSW Trustee or the Court. (7) Add to the orders made in the court below: 9. Without prejudice to how the moneys spent pursuant to this order are ultimately borne between the net proceeds of sale of the shares in Ansell Limited, interest that accrues on those net proceeds and other money that makes up the Other Funds, until further order of the court or further direction of the NSW Trustee moneys that are spent for PBL's benefit or on PBL's care or for the management of PBL's estate are to be paid from the Other Funds other than so much of the Other Funds as represents net proceeds of sale of shares in Ansell Limited and interest that accrues on those net proceeds. 10. Orders 6, 7 and 9 pare in substitution for previous directions of the NSW Trustee concerning the setting aside of a separate fund from the proceeds of sale of the Darlinghurst garage of PBL and the manner in which that fund should be used. (8) RL's costs of the appeal on the indemnity basis to be paid from the estate of PBL other than the Sale Fund and so much of the Other Funds as represents the net proceeds of sale of the shares in Ansell Limited. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	MENTAL HEALTH - effect of disability on civil rights and duties - death of protected person - whether rights concerning litigation begun by manager concerning manner of administration of protected person's property survives death - who has power to continue litigation PROCEDURE - manager of protected person brings litigation concerning administration of protected person's estate - death of protected person before orders made in litigation - procedural steps to enable litigation to be concluded WORDS AND PHRASES - "cause…