SC v Ability One Financial Management Pty Ltd - [2024] NSWSC 637

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: SC v Ability One Financial Management Pty Ltd [2024] NSWSC 637
Hearing dates: 2 and 3 May 2024
Date of orders: 28 May 2024
Decision date: 28 May 2024
Jurisdiction: Equity
Before: Lindsay J
Decision:
ORDER that an application for a change of the manager of a protected estate be dismissed.

Catchwords:
PROTECTIVE JURISDICTION – Protected estate management – Application for change of manager – Welfare and interests of protected person the paramount consideration – Obstruction of management by applicant for change of manager – Application dismissed

Legislation Cited:
Evidence Act 1995 NSW
Interpretation Act 1987 NSW
Jurisdiction of Courts (Cross Vesting) Act 1987
NSW Trustee and Guardian Act 2009 NSW

Cases Cited:
Ability One Financial Management Pty Ltd and Anor v JB by his Tutor AB [2014] NSWSC 245
CCR v PS (No 2) 6 NSWLR 622
FC v SC [2022] NSWSC 1780
FC v SC (No 2) [2023] NSWSC 376
Holt v Protective Commissioner (1993) 31 NSWLR 227
M v M [2013] NSWSC 1495
Re Managed Estates Remuneration Orders [2014] NSWSC 383

Category: Principal judgment
Parties: Plaintiff: SC, nephew of JC (a protected person)
First Defendant: Ability One Financial Management Pty Ltd ACN 113 553 852
Second Defendant: JC, a protected person
Third Defendant: FC, son of JC, a protected person
Representation:
Counsel:
Plaintiff: Mr A Galapo
First Defendant: Mr B McHardy, Solicitor
Second Defendant: No appearance
Third Defendant: Mr A Crossland
NSW Trustee: Ms R Stormont, Solicitor
Solicitors:
Plaintiff: ZRA Lawyers
First Defendant: McHardy Law
Second Defendant: No appearance
Third Defendant: Attwood Marshall Lawyers
NSW Trustee: Jaimi-Lee Gardiner, Senior Solicitor NSW Trustee

File Number(s): 2023/00360246
Publication restriction: Nil

JUDGMENT

INTRODUCTION

These proceedings concern management of the protected estate of an elderly man (JC, the second defendant) in respect of whom Slattery J, in proceedings numbered 2021/00047726 in the Protective List of the Equity Division of the Court:

for reasons, published as FC v SC [2022] NSWSC 1780, on 15 February 2023 made orders the effect of which was to transfer management of the protected estate of JC from the NSW Trustee to Ability One Financial Management Pty Ltd (the first defendant); and

for reasons published as FC v SC(No 2) [2023] NSWSC 376, on 14 April 2023 made orders, upon an exercise of the Court’s inherent protective jurisdiction, appointing SR as a committee of the person (in colloquial terms, a “guardian”) of JC.

The present proceedings (in which the plaintiff, SC, seeks a change in manager of JC’s estate) have been conducted by all parties without detailed reference to Slattery J’s reasons for judgment or a detailed chronology of the proceedings before his Honour.

THE EARLIER PROCEEDINGS BEFORE SLATTERY J

It is sufficient to note the barebones of a chronology of those proceedings, which were between FC (as plaintiff), SC (as first defendant), JC (as second defendant) and the NSW Trustee (as the third defendant). The principal contest was between FC and SC.
The…

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: [2024] NSWSC 637
Decision Date: 28 May 2024

CaseChat Overview and Summary

The case involved the State Trustee, acting under the Trustee Act 1925, applying to the Supreme Court for an order appointing a new manager of a protected estate. The estate in question was managed by Ability One Financial Management Pty Ltd, which opposed the application. The dispute centred on the welfare and interests of the protected person, who had dementia, and the State Trustee's contention that Ability One had obstructed the management of the estate.

The primary legal issue for the court was whether the welfare and interests of the protected person would be better served by appointing a new manager, as requested by the State Trustee. The court had to consider whether the applicant had discharged the onus of proving that the current manager was unsuitable and that a new manager would better serve the protected person's interests. Furthermore, the court needed to determine whether the actions of the applicant constituted an obstruction of the management of the estate by Ability One.

The court found that the State Trustee had not discharged the onus of proving that the current manager was unsuitable or that a new manager would better serve the protected person's interests. The court noted that the applicant had acted in a manner that could be considered an obstruction of the management of the estate by Ability One, which further supported the conclusion that the applicant had not discharged the onus. The court emphasised that the welfare and interests of the protected person were the paramount consideration in such matters and, given the circumstances, it was not in the protected person's best interests for the current manager to be replaced. Therefore, the application was dismissed.

Orders