T v M - [2022] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
T v M & ANOR
[2022] SASC 16
Judgment of the Honourable Justice Stein
HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY - ADMINISTRATION AND FINANCIAL MANAGEMENT - REVIEW, REVOCATION, ETC
HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY - GUARDIANSHIP AND SIMILAR APPOINTMENTS - REVIEW, REVOCATION, ETC
EQUITY - TRUSTS AND TRUSTEES - APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY
The Present Manager, manager of the Protected Person’s estate, sought advice and directions from the Court (“Advice Application”) concerning issues related to the estate. The Protected Person sought to replace the Present Manager with a new manager (“Manager Replacement Application”). The Advice Application was amended (“Amended Advice Application”) to seek advice and directions in relation to whether the Present Manager should defend the Manager Replacement Application.
Upon considering the Amended Advice Application and the Manager Replacement Application together, held:
1.It was reasonable and appropriate for the Present Manager to have filed the Advice Application and the Amended Advice Application in relation to issues of concern arising in the management of the estate of the Protected Person.
2.The relationship between the Present Manager and the Protected Person had irretrievably broken down and therefore there was good cause to replace the Present Manager, and he should not actively defend the Manager Removal Application.

Orders made for the replacement of the Present Manager, ancillary orders and orders for costs.
Administration and Probate Act 1919 (SA) s 69; Aged and Infirm Persons' Property Act 1940 (SA) s 32, s 11; Protected Estates Act 1983 (NSW) (NSW) s 22; Trustee Act 1925 (NSW) (NSW) s 63; Trustee Act 1936 (SA) s 91, referred to.
Holt v Protective Commissioner (1993) 31 NSWLR 227; M v Protective Commissioner [2002] NSWSC 421; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand and Another (2008) 237 CLR 66; MB v Protective Commissioner (2000) 50 NSWLR 24, applied.

T v M & ANOR
[2022] SASC 16
Civil
STEIN J:
Overview

In 1993, the Protected Person suffered a tragic accident which resulted in her suffering significant injuries, including a severe traumatic brain injury. In 1997, a medical practitioner diagnosed the Protected Person with permanent and severe brain damage resulting in significant cognitive and physical impairment. In 1999, this Court made an order appointing a manager to take possession and control of and manage the estate of the Protected Person. On 3 March 2006, Judge Withers made an order varying the previous order made in 1999 and appointing the Present Manager as manager of the estate of the Protected Person from 1 April 2006.
The Present Manager was the manager from that date.
In 2021, the Present Manager sought advice and directions from this Court in relation to issues concerning the estate of the Protected Person. The Protected Person sought to replace the Present Manager…

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 T v M

Details

AGLC: T v M [2022] SASC 16
Case: [2022] SASC 16
Decision Date: 2 March 2022

CaseChat Overview and Summary

The case of T v M involves a dispute concerning the management and administration of the estate of a person with impaired capacity. The Present Manager filed applications for advice and directions from the Court regarding issues concerning farming equipment and whether to defend an application for his replacement. The Protected Person, represented by a litigation guardian, filed a counter-application for the replacement of the Present Manager. The court had to decide whether to provide advice and directions to the Present Manager on the issues raised in the applications, and whether there was good cause to replace the Present Manager. The court considered the submissions of both parties, the relevant legislation, and the authorities on advice and direction. The court found that it was reasonable for the Present Manager to have filed the applications, and that there was good cause to replace him. The court made orders for the replacement of the Present Manager, ancillary orders, and orders for costs.

The legal issues in this case revolved around the court's discretion to provide advice and directions to a trustee in relation to adversarial litigation, and the circumstances under which a manager should be replaced. The Present Manager argued that it would be unusual for a court to decline to give advice to a trustee, even in cases of adversarial litigation. The Protected Person, on the other hand, argued that the court should exercise its discretion to decline to give advice and directions to the Present Manager, and that there was good cause to replace him. The court considered the relevant legislation, authorities on advice and direction, and the submissions of both parties in reaching its decision.

In reaching its decision, the court considered the submissions of both parties, the relevant legislation, and the authorities on advice and direction. The court found that it was reasonable for the Present Manager to have filed the applications, and that there was good cause to replace him. The court noted that the relationship between the Present Manager and the Protected Person had irretrievably broken down, and that the Protected Person had expressed a desire for a specific person to be appointed as her replacement manager. The court also considered the report of an expert in capacity assessment, which found that the Protected Person had sufficient capacity to state her needs and wants. Based on these findings, the court made orders for the replacement of the Present Manager, ancillary orders, and orders for costs.

The court's orders included the replacement of the Present Manager, ancillary orders such as the appointment of a new manager, and orders for costs. The court found that it was reasonable for the Present Manager to have filed the applications, and that there was good cause to replace him due to the irretrievable breakdown in the relationship between the Present Manager and the Protected Person. The court also found that the Protected Person had expressed a desire for a specific person to be appointed as her replacement manager, and that this person was appropriate based on the comparison of fees and charges with other potential managers. The court made orders for the replacement of the Present Manager, and for the new manager to take over the management of the estate of the Protected Person. The court also made orders for costs, with the Present Manager to bear the costs of the Manager Removal Application.

Orders

Orders of the court

Upon considering the Amended Advice Application and the Manager Replacement Application together, held:

1. It was reasonable and appropriate for the Present Manager to have filed the Advice Application and the Amended Advice Application in relation to issues of concern arising in the management of the estate of the Protected Person.

2. The relationship between the Present Manager and the Protected Person had irretrievably broken down and therefore there was good cause to replace the Present Manager, and he should not actively defend the Manager Removal Application.

Orders made for the replacement of the Present Manager, ancillary orders and orders for costs.

Background

Background to the litigation

In December 2021, following various hearings and the receipt of written submissions, I made orders in relation to the applications made by both the Present Manager and by the Protected Person. I indicated that I would subsequently give reasons and I now publish my reasons. Further Background In about 2014, the Protected Person and her partner, M, moved from a property in Streaky Bay (“Streaky Bay Property”) to a small farm on Kangaroo Island (“Kangaroo Island Property”) which the Present Manager purchased for the Protected Person. M leases part of the Kangaroo Island Property from the Protected Person for farming purposes. Farming equipment and machinery (“equipment”) owned by the Protected Person remained at the Streaky Bay Property and was not relocated to the Kangaroo Island Property. In about 2020, various requests were made to the Present Manager for expenditure in relation to the Kangaroo Island Property. The Present Manager had concerns about the requests and also developed concerns in relation to the insurance status and location of the equipment. Applications – overview From July 2021, a number of applications were filed by the Present Manager and by the Protected Person. In July 2021, the Present Manager sought advice and directions from the Court in relation to the equipment (“Advice Application”). The application was intended to be confidential. The Protected Person’s legal representatives became aware of the application. The Protected Person subsequently filed an application seeking the replacement of the Present Manager with a new manager. With leave of the Court, the Present Manager amended his application for advice and directions to also seek the advice and directions of the Court as to whether the Present Manager should defend the application for his replacement (“Amended Advice Application”). A litigation guardian was appointed for the Protected Person. The Protected Person sought orders dismissing the Amended Advice Application. A significant volume of material was filed in support of the applications. In order to understand the recent history of the matter, the relevant issues and the approach I adopted, it is necessary to set out some of the detail of some of the material which has been filed. Advice Application - equipment On 30 July 2021, the Present Manager filed the Advice Application pursuant to s 69 of the Administration and Probate Act 1919 (SA) (“AP Act”) and s 91 of the Trustee Act 1936 (SA) (“Trustee Act”). The Present Manager sought the Court’s directions as to whether to bring an application seeking orders that M disclose the location of the equipment, seeking injunctions restraining M from interfering with possession of the equipment and/or orders for delivery up so the Present Manager could make a decision as to which equipment should be sold or transferred to the Kangaroo Island Property. The Advice Application was supported by an affidavit of the Present Manager dated 29 July 2021. I set out below some of the factual matters to which the Present Manager deposed in his affidavit.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Protected Person maintained the desire for Mr Cooper to be appointed. ConsiderationThe Protected Person’s submissions – Application for Advice and Directions Counsel submitted that while seeking advice and directions concerning adversarial litigation is not an automatic bar to the exercise of the discretion to decline to give advice and directions, it is a matter which needs to be carefully considered. Counsel for the Protected Person submitted that it is within the Court’s power to decline to give advice and directions to a trustee and in this case that would be an appropriate exercise of the Court’s adjudicatory function.The Protected Person’s submissions – Replacement Manager Application Counsel for the Protected Person submitted that the report of Mr Rothwell established that the Protected Person has sufficient capacity to state her needs and wants. Counsel submitted that it is important for both the Protected Person and M to have a good relationship with the replacement manager, including for reasons of the potential costs to the estate and the importance of the care that M continues to provide to the Protected Person. Counsel pointed to the importance of considering the Protected Person’s requests. Counsel submitted that I should have no hesitation in relying on the matters to which the Protected Person deposed, including why the Protected Person feels comfortable with Mr Cooper and the circumstances in which she met him. Counsel submitted that a completely independent connection had been established as to how Mr Cooper came to meet the Protected Person. Nonetheless, proposals were sought from five potential managers with the requisite experience to be able to accept the role as manager. The solicitors for the Protected Person then reviewed the fees and charges of the potential managers and performed a detailed comparison of the likely fees and charges and submitted that material to the Litigation Guardian. The Litigation Guardian reviewed the materials and formed the view that Mr Cooper’s proposed fees are reasonable and comparable with those of other managers and that Mr Cooper was the appropriate choice of replacement manager. The Protected Person’s counsel submitted that there was good reason to replace the Present Manager and there was an appropriate basis to replace him with Mr Cooper. Present Manager’s submissions – Application for Advice and Directions Counsel for the Present Manager stated that the Present Manager had significant concerns which had put the Present Manager in a position of difficulty and doubt in respect of which the Present Manager, as a trustee, was entitled to ask the Court how he should proceed. Counsel submitted it would be unusual for a Court to decline to give advice to a trustee even where the advice sought related to adversarial litigation. Counsel for the Present Manager relied on Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand and Another[1] (“Macedonian Church case”) in support of his submissions, including that the scope of the Court’s discretion to refuse to give advice and directions is narrow. Counsel for the Present Manager submitted that the Present Manager could not be denied advice of the Court in those circumstances.[1] (2008) 237 CLR 66.Authorities on advice and direction