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SLJ v RTJ

SLJ v RTJ

Case [2017] NSWSC 137 24 February 2017

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Supreme Court

New South Wales

Medium Neutral Citation: SLJ v RTJ [2017] NSWSC 137
Hearing dates: 5 and 13 September and 11 October 2016, and consideration in chambers after receipt of a Report dated 24 November 2016 from the NSW Trustee
Date of orders: 24 February 2017
Decision date: 24 February 2017
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Orders made for removal and replacement of a protected estate manager, incorporating orders made to confirm that an estate is subject to management under the NSW Trustee and Guardian Act 2009 NSW, reserving liberty to apply for accounting or remedial orders.

Catchwords: GUARDIANSHIP — Protected person — Financial management — Change of manager — Order for discharge of private manager — Order for appointment of private manager — Principles governing a change of manager — Paramount consideration remains protection of welfare, and interests, of protected person — Prudential management requires flexibility, consultation with protected person and family, and respect for protected person’s autonomy.
PROTECTIVE JURISDICTION – Protected person – Irregularities in original financial management order – Failure to reference NSW Trustee and Guardian Act 2009 – No declaration of incapacity – No management order expressly pursuant to s41 of NSW Trustee and Guardian Act 2009 – No appointment of manager expressly pursuant to s41 of NSW Trustee and Guardian Act 2009 – Accountability of manager – Availability of remedial orders.
Legislation Cited: Civil Procedure Act 2005 NSW
Corporations Act 2001 Cth
Corporations Regulations 2001 Cth
Interpretation Act 1987
NSW Trustee and Guardian Act 2009 NSW
Supreme Court Act 1970 NSW
Cases Cited: Ability One Financial Management Pty Limited and Anor v JB by his tutor AB [2014] NSWSC 245
C v W (No. 2) [2016] NSWSC 945
M v M [2013) NSWSC 1495
MKH v JBH (No. 2) [2016] NSWSC 1103
MKH v JBH [2016] NSWSC 1031
Re LSC and GC [2016] NSWSC 1896
Re LSC and GC [2016] NSWSC 1896
Re Managed Estates Remuneration Orders [2014] NSWSC 383 (2 April 2014)
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Mother of defendant
Defendant: Person ostensibly under protective management
NSW Trustee: C Phang, Solicitor
Representation: Solicitors:
Plaintiff: Bourke Love

File Number(s): 2016/00195883

Judgment

INTRODUCTION

This judgment determines an application for the removal and replacement of a “manager” of the estate of a person in need of protection in circumstances in which the appointment of the manager (pursuant to section 41 of the NSW Trustee and Guardian Act 2009 NSW) was imperfectly expressed; the NSW Trustee was not given notice of the appointment (or management of the estate) by the Court, the manager or any interested person; and, accordingly, management of the estate was not, in a practical sense, brought under the supervision of the NSW Trustee until, following a change in the commercial identity of the manager, the mother of the person in need of protection applied to the Court for a…

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 SLJ v RTJ

Details

AGLC: SLJ v RTJ [2017] NSWSC 137
Case: [2017] NSWSC 137
Decision Date: 24 February 2017

CaseChat Overview and Summary

In the case of SLJ v RTJ, the matter before the court involved a dispute regarding the management of a protected person's financial affairs. The protected person, SLJ, was under the care of RTJ, the private manager appointed to oversee their financial matters. The court was tasked with determining whether RTJ should be discharged as the private manager and replaced by a different manager. The dispute arose from concerns about the management of SLJ's finances and the need for a change in the private manager to better protect SLJ's welfare and interests.

The primary legal issues the court had to address included whether the existing financial management order was irregular due to the failure to reference the relevant statutory provisions, specifically the NSW Trustee and Guardian Act 2009. The court also needed to determine if the lack of a declaration of incapacity and the absence of a management order expressly pursuant to section 41 of the NSW Trustee and Guardian Act 2009 constituted grounds for altering the private manager. Furthermore, the court had to consider the principles that govern a change of private manager, including the paramount consideration of protecting the welfare and interests of the protected person, and the need for prudential management that respects the protected person's autonomy.

The court found that the existing financial management order was indeed irregular due to the absence of necessary references to the statutory provisions and the lack of a formal declaration of incapacity. Despite these irregularities, the court recognised the importance of the protected person's welfare and interests and the need for flexible and respectful management. The court acknowledged that the accountability of the private manager and the availability of remedial orders could address the deficiencies in the original order. Consequently, the court discharged RTJ as the private manager and ordered the appointment of a new private manager to better safeguard SLJ's welfare and interests.

In its final orders, the court discharged RTJ from their duties as the private manager and appointed a new private manager to oversee SLJ's financial affairs. The court emphasised the need for the new manager to adhere strictly to the statutory provisions and to consult appropriately with SLJ and their family to ensure the protected person's autonomy and best interests were respected. The decision underscores the importance of ensuring that the management of a protected person's financial affairs aligns with legislative requirements and the overarching principle of protecting the welfare and interests of the protected person.

Orders