SMM v GE - [2025] NSWSC 1184

Supreme Court

New South Wales

Medium Neutral Citation: SMM v GE [2025] NSWSC 1184
Hearing dates: 30 June 2025 plus written submissions
Decision date: 10 October 2025
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Orders to be made for transfer of management of a protected estate from NSW to Tasmania

Catchwords:
GUARDIANSHIP – Protected Person – Interstate domicile – Transfer of estate to place of domicile – Principles to be applied – Governed by protective purpose of jurisdiction

Legislation Cited:
Civil Procedure Act 2005 NSW
Guardianship and Administration Act 1995 Tas
Guardianship Act 1987 NSW
NSW Trustee and Guardian Act 2009 NSW

Cases Cited:
Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417
Ex parte Whitbread in the Matter of Hinde, a Lunatic (1816) 2 Mer 99
Holt v Protective Commissioner (1993) 31 NSWLR 227
Hospital Products Ltd v US Surgical Corporation (1984) 156 CLR 41
PB v BB [2013] NSWSC 1223
Re KT and JC, Protected Persons [2025] NSWSC 306
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218
W v H [2014] NSWSC 1696

Category: Principal judgment
Parties: Plaintiff: SMM (sister of a protected person)
First Defendant: GE, a protected person
Second Defendant: JE (father of the plaintiff and the first defendant)
Third Defendant: NSW Trustee
Representation:
Counsel:
Plaintiff: Mr D Yazdani
First Defendant: No separate representation
Second Defendant: Submitting Appearance
Third Defendant: Ms J Gardiner, solicitor
Solicitors:
Plaintiff: PB Ritz Lawyers
Third Defendant: Luke Williams, NSW Trustee

File Number(s): 2025/00063134

JUDGMENT

INTRODUCTION

In broad terms, these proceedings concern an application by the family of a person who is a “protected person” within the meaning of the NSW Trustee and Guardian Act 2009 NSW (the first defendant) for the management orders affecting him to be discharged on terms designed to permit his NSW estate to be administered by a nominee of the family (the plaintiff in these proceedings) as an Administrator appointed by the Tasmanian Civil and Administrative Tribunal (TASCAT) pursuant to the Guardianship and Administration Act 1995 Tas.
The protected person’s estate in NSW largely represents an investment of funds derived from awards of personal injury compensation made by this Court, the Supreme Court of NSW. A small part of the estate is presently managed by the protected person’s father (the second defendant), with the assistance of his sister, the plaintiff. The larger part of the estate is held on trust by the NSW Trustee (the third defendant). The two parts taken together, the protected person’s NSW estate has a value of approximately $1.6 million.
The protected person and his family (elderly parents and his sister) all now reside permanently in Tasmania. It is for that reason that the family seeks a discharge of the management orders made by the Court on the basis that his whole estate be administered under Tasmania’s protective regime.
Any decision made affecting the welfare or interests of a protected person must be made in a manner, and for…

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 SMM v GE

Details

AGLC: SMM v GE [2025] NSWSC 1184
Case: [2025] NSWSC 1184
Decision Date: 10 October 2025

CaseChat Overview and Summary

The matter of SMM v GE involved the question of whether a court of the Australian state of Queensland should transfer the estate of a protected person to a jurisdiction in another state, where the protected person had their domicile. The dispute arose from the need to manage the assets and affairs of a person who, due to their incapacity, required a legal guardian. The court had to determine the appropriate jurisdiction to manage these affairs, considering the principles guiding such decisions in the context of guardianship and the protective purpose of the jurisdiction.

The central legal issue before the court was whether the Queensland court should retain jurisdiction over the estate of a protected person or transfer it to another state where the protected person resided. The court was required to balance the principles of guardianship, which emphasise the protection of the interests of the incapacitated person, against the practical considerations of managing the estate in the state of the protected person's domicile. The court had to consider the extent to which the protective purpose of the jurisdiction should influence the decision to transfer the estate.

The court, in delivering its judgment, focused on the protective purpose underlying the jurisdiction to manage the affairs of a protected person. It held that the primary consideration must be the welfare and best interests of the incapacitated person. The court determined that transferring the estate to the state of the protected person's domicile was in line with the protective purpose of the jurisdiction. This decision was based on the premise that managing the estate in the state where the protected person was domiciled would better facilitate the protection of their interests and ensure that their affairs were handled in accordance with the relevant laws of that jurisdiction. The court concluded that such a transfer was warranted in this case.

Orders