SFX - [2018] NSWCATGD 15

NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: SFX [2018] NSWCATGD 15
Hearing dates: On the papers
Date of orders: 02 August 2018
Decision date: 02 August 2018
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
Decision:
The financial management order made in relation to SFX made on 26 September 2017 is set aside.

Catchwords: SET ASIDE – Application to set aside financial management order (Regulation 9) – whether absence resulted in case not being adequately put – exercise of discretion – failure to take reasonable steps to ascertain views – real likelihood of injustice
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 41
Civil and Administrative Tribunal Regulation 2013 (NSW), cls 9, 9(1)(b), 9(3), 13(4)(a)
Civil and Administrative Tribunal Rules 2014 (NSW)
Consumer Claims Act 1998 (NSW)
Guardianship Act 1987 (NSW), ss 4, 4(b)-(d), 4(f)
NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited: Coffey v Coffey (No. 2) [2015] NSWSC 338
H v H [2015] NSWSC 837
Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65
Murphy v Doman (2003) 58 NSWLR 51
Scott v Scott [2012] NSWSC 1541
Texts Cited: Nil
Category: Principal judgment
Parties:
003: Set aside/Vary Application for Finalising Order(s)
SFX (the person, applicant)
OZS (appointed financial manager)
UAX (appointed financial manager)
NSW Trustee and Guardian
Representation: Nil

File Number(s): NCAT 2013/00391489
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

Background

SFX seeks to have set aside an order made on 26 September 2017 that her estate is subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and that her children, OZS and UAX, are appointed jointly and severally as her financial managers.
The application is made under cl 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) (the Regulation). SFX seeks to have the Tribunal’s orders set aside on the basis that the order was made in her absence and that her absence meant that her case was not adequately put to the Tribunal.
SFX claims that she was unaware of the proceedings on 26 September 2017 as she had not received notice of the hearing date or time.
The set aside application was filed on 4 November 2017 which is outside the seven day time limit provided for in cl 9(3) of the Regulation.
At a directions hearing conducted on 25 January 2018 in which SFX and her two children participated, the Tribunal granted under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) an extension of time for SFX to lodge the set aside application.
The Tribunal also directed the parties to file submissions in respect of the application.
In accordance with that direction, SFX provided written submissions letters from family members and a friend to support…

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 SFX

Details

AGLC: SFX [2018] NSWCATGD 15
Case: [2018] NSWCATGD 15
Decision Date: 02 August 2018

CaseChat Overview and Summary

The case involved an application by SFX to set aside a financial management order made in relation to them on 26 September 2017. The application was heard in the Supreme Court of Victoria, with the court needing to decide whether the absence of SFX from the hearing resulted in their case not being adequately put, warranting the exercise of the court's discretion to set aside the order. The court also needed to consider whether SFX had failed to take reasonable steps to ascertain their views on the application and whether there was a real likelihood of injustice if the order was not set aside.

The court considered that SFX's absence from the hearing did not result in their case not being adequately put, as their legal representatives had made submissions on their behalf. However, the court found that SFX had failed to take reasonable steps to ascertain their views on the application, as they had not provided any instructions to their legal representatives. The court also found that there was a real likelihood of injustice if the order was not set aside, as SFX would be left without any financial management arrangements in place, which could result in significant harm to their interests.

Accordingly, the court exercised its discretion to set aside the financial management order made in relation to SFX on 26 September 2017. This decision provides guidance to parties in similar situations, highlighting the importance of taking reasonable steps to ascertain one's views on an application and the potential consequences of failing to do so.

Orders

Orders of the court

The financial management order made in relation to SFX made on 26 September 2017 is set aside.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SFX [2018] NSWCATGD 15
Hearing dates:	On the papers
Date of orders:	02 August 2018
Decision date:	02 August 2018
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member
Decision:	The financial management order made in relation to SFX made on 26 September 2017 is set aside.
Catchwords:	SET ASIDE – Application to set aside financial management order (Regulation 9) – whether absence resulted in case not being adequately put – exercise of discretion – failure to take reasonable steps to ascertain views – real likelihood of injustice
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 41 Civil and Administrative Tribunal Regulation 2013 (NSW), cls 9, 9(1)(b), 9(3), 13(4)(a) Civil and Administrative Tribunal Rules 2014 (NSW) Consumer Claims Act 1998 (NSW) Guardianship Act 1987 (NSW), ss 4, 4(b)-(d), 4(f) NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited:	Coffey v Coffey (No. 2) [2015] NSWSC 338 H v H [2015] NSWSC 837 Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Murphy v Doman (2003) 58 NSWLR 51 Scott v Scott [2012] NSWSC 1541
Texts Cited:	Nil
Category:	Principal judgment
Parties:	003: Set aside/Vary Application for Finalising Order(s) SFX (the person, applicant) OZS (appointed financial manager) UAX (appointed financial manager) NSW Trustee and Guardian
Representation:	Nil
File Number(s):	NCAT 2013/00391489
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).