SNU - [2018] NSWCATGD 32

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: SNU [2018] NSWCATGD 32
Hearing dates: 12 June 2018
Date of orders: 25 June 2018
Decision date: 25 June 2018
Jurisdiction: Guardianship Division
Before: J S Currie, Senior Member (Legal)
Decision:
The Financial Management order for Mrs SNU made on 14 December 2017 has been reviewed. The order now is as follows:

1. The estate of Mrs SNU is subject to management under the NSW Trustee and Guardian Act 2009.

2. Ms LZU of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until she has obtained all necessary authorities from the NSW Trustee and Guardian.

3. This order is to be reviewed by the Tribunal within nine months.

RECOMMENDATIONS

The Tribunal recommends that, without limiting the powers or discretions available to NSW Trustee and Guardian under the NSW Trustee and Guardian Act 2009 and the Guardianship Act 1987 and relevant regulations, consideration should be given to an early request for review of this order from NSW Trustee and Guardian or any other person entitled under the Guardianship Act to request such a review, if:

(1) any claim is made to or approval sought from NSW Trustee and Guardian for or in respect of payment or reimbursement by the estate of any legal fees incurred by or on behalf of the financial manager or the estate (whether such fees are incurred or relate to legal work performed before or after the date of this order);

(2) any litigation involving the estate is or is proposed to be commenced, substantially varied, settled or otherwise discontinued without reasonable prior notification of the same having been given to NSW Trustee and Guardian;

(3) the financial manager is in breach of any obligation under the NSW Trustee and Guardian Act or the Guardianship Act or relevant regulations or any obligation arising under an authority or direction issued by NSW Trustee and Guardian; or

(4) without limiting the effect of (3) above, the financial manager fails to respond promptly and completely to any request for information or documentation made by or on behalf of NSW Trustee and Guardian; or
(5) the financial manager changes address or other contact details without reasonable prior notice to NSW Trustee and Guardian.
Catchwords:
GUARDIANSHIP – financial management – application to review or revoke financial management order and review of reviewable financial management order – large and complex estate – numerous current litigation matters before various courts – finding that order should not be revoked – private manager appointed to replace NSW Trustee and Guardian – suitability of existing and proposed new manager and best interests of subject person – role of Case Manager of litigation not necessarily compatible with that of financial manager – recommendations made to encourage early review of order in particular circumstances – 9-month reviewable order made
PRACTICE AND PROCEDURE – application that…

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

AGLC: SNU [2018] NSWCATGD 32
Case: [2018] NSWCATGD 32
Decision Date: 25 June 2018

CaseChat Overview and Summary

The case involved an application to review or revoke a financial management order and a review of a reviewable financial management order concerning Mrs SNU. The application was heard by the Civil and Administrative Tribunal of New South Wales. The primary dispute centred on the suitability of the existing and proposed new financial manager and the best interests of Mrs SNU, given the complex estate and ongoing litigation matters. Additionally, the application sought a private hearing for part of the proceedings.

The legal issues before the court included determining whether the existing financial management order should be revoked and appointing a suitable financial manager to replace the NSW Trustee and Guardian. The court also considered whether the role of the Case Manager of the litigation was compatible with that of the financial manager and whether an early review of the order should be requested under specific circumstances.

The court found that the financial management order should not be revoked. Instead, it appointed Ms LZU as the financial manager of the estate, replacing the NSW Trustee and Guardian. The court acknowledged that the role of the Case Manager in the ongoing litigation was not necessarily compatible with that of the financial manager. Furthermore, the court made recommendations to encourage an early review of the order if certain conditions were met, such as claims for legal fees or changes in litigation without prior notification. The court made a nine-month reviewable order to ensure ongoing oversight of the estate's management.

The orders made by the tribunal included the appointment of Ms LZU as the financial manager of Mrs SNU's estate, subject to obtaining necessary authorities from the NSW Trustee and Guardian. The tribunal also recommended early review of the order under specific conditions, such as claims for legal fees, changes in litigation, breaches of obligations, or changes in contact details.

Orders

Orders of the court

The Financial Management order for Mrs SNU made on 14 December 2017 has been reviewed. The order now is as follows:

1. The estate of Mrs SNU is subject to management under the NSW Trustee and Guardian Act 2009.

2. Ms LZU of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until she has obtained all necessary authorities from the NSW Trustee and Guardian.

3. This order is to be reviewed by the Tribunal within nine months.

RECOMMENDATIONS

The Tribunal recommends that, without limiting the powers or discretions available to NSW Trustee and Guardian under the NSW Trustee and Guardian Act 2009 and the Guardianship Act 1987 and relevant regulations, consideration should be given to an early request for review of this order from NSW Trustee and Guardian or any other person entitled under the Guardianship Act to request such a review, if:

(1) any claim is made to or approval sought from NSW Trustee and Guardian for or in respect of payment or reimbursement by the estate of any legal fees incurred by or on behalf of the financial manager or the estate (whether such fees are incurred or relate to legal work performed before or after the date of this order);

(2) any litigation involving the estate is or is proposed to be commenced, substantially varied, settled or otherwise discontinued without reasonable prior notification of the same having been given to NSW Trustee and Guardian;

(3) the financial manager is in breach of any obligation under the NSW Trustee and Guardian Act or the Guardianship Act or relevant regulations or any obligation arising under an authority or direction issued by NSW Trustee and Guardian; or

(4) without limiting the effect of (3) above, the financial manager fails to respond promptly and completely to any request for information or documentation made by or on behalf of NSW Trustee and Guardian; or

(5) the financial manager changes address or other contact details without reasonable prior notice to NSW Trustee and Guardian.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SNU [2018] NSWCATGD 32
Hearing dates:	12 June 2018
Date of orders:	25 June 2018
Decision date:	25 June 2018
Jurisdiction:	Guardianship Division
Before:	J S Currie, Senior Member (Legal)
Decision:	The Financial Management order for Mrs SNU made on 14 December 2017 has been reviewed. The order now is as follows: 1. The estate of Mrs SNU is subject to management under the NSW Trustee and Guardian Act 2009. 2. Ms LZU of [Address removed for publication.] is appointed as the financial manager of the estate. NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until she has obtained all necessary authorities from the NSW Trustee and Guardian. 3. This order is to be reviewed by the Tribunal within nine months. RECOMMENDATIONS The Tribunal recommends that, without limiting the powers or discretions available to NSW Trustee and Guardian under the NSW Trustee and Guardian Act 2009 and the Guardianship Act 1987 and relevant regulations, consideration should be given to an early request for review of this order from NSW Trustee and Guardian or any other person entitled under the Guardianship Act to request such a review, if: (1) any claim is made to or approval sought from NSW Trustee and Guardian for or in respect of payment or reimbursement by the estate of any legal fees incurred by or on behalf of the financial manager or the estate (whether such fees are incurred or relate to legal work performed before or after the date of this order); (2) any litigation involving the estate is or is proposed to be commenced, substantially varied, settled or otherwise discontinued without reasonable prior notification of the same having been given to NSW Trustee and Guardian; (3) the financial manager is in breach of any obligation under the NSW Trustee and Guardian Act or the Guardianship Act or relevant regulations or any obligation arising under an authority or direction issued by NSW Trustee and Guardian; or (4) without limiting the effect of (3) above, the financial manager fails to respond promptly and completely to any request for information or documentation made by or on behalf of NSW Trustee and Guardian; or (5) the financial manager changes address or other contact details without reasonable prior notice to NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – financial management – application to review or revoke financial management order and review of reviewable financial management order – large and complex estate – numerous current litigation matters before various courts – finding that order should not be revoked – private manager appointed to replace NSW Trustee and Guardian – suitability of existing and proposed new manager and best interests of subject person – role of Case Manager of litigation not necessarily compatible with that of financial manager – recommendations made to encourage early review of order in particular circumstances – 9-month reviewable order made PRACTICE AND PROCEDURE – application that…