TKD - [2020] NSWCATGD 1

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: TKD [2020] NSWCATGD 1
Hearing dates: 22 January 2020
Date of orders: 22 January 2020
Decision date: 22 January 2020
Jurisdiction: Guardianship Division
Before: J Claridge, Senior Member (Legal)
Dr L Tong AM, Senior Member (Professional)
S Bullock, General Member (Community)
Decision:
1. The estate of TKD is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of TKD is committed to the NSW Trustee and Guardian.
Catchwords: FINANCIAL MANAGEMENT – application for financial management order – whether there is a need for another person to manage the subject person’s affairs on their behalf – where subject person has an acquired brain injury – where subject person is the beneficiary of a trust administered by the NSW Trustee and Guardian as a result of a Supreme Court order – where subject person has multiple sources of income – subject person unable to manage his own affairs – beneficial for a financial manager to be appointed – financial management order made – NSW Trustee and Guardian appointed.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 77(4)
Guardianship Act 1987 (NSW), ss 4, 25M
Cases Cited: CJ v AKJ [2015] NSWSC 498
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
Re Tracey [2016] QCA 194
Texts Cited: Nil
Category: Principal judgment
Parties:
005: Financial Management Application
TKD (the person)
TZM (applicant)
WBX (carer)
NSW Trustee and Guardian (proposed financial manager)
Representation: Nil

File Number(s): NCAT 2005/00374404
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

TKD, 51 years old, is currently living in southwest Sydney, in accommodation provided by Housing NSW.
It is reported that TKD has a mild intellectual disability, a brain injury from a motor vehicle accident and mental illness.
It is reported that TKD is supported by his long-term friend WBX, who is also his carer.
On 5 December 2019 the Tribunal received an application for financial management for TKD from TZM, social worker.

Does the Tribunal have jurisdiction to hear this matter?

By consent judgement made in the District Court of NSW on 13 October 2017, $100,000, less specified deductions, was paid into court for the benefit of TKD, following a personal injures claim made on his behalf.
By order of the District Court under s 77(4) of the Civil Procedure Act 2005 (NSW) (“Civil Procedure Act”), the amount of $98,899.68 was paid into an account of the NSW Trustee and Guardian to be applied by them as trustee on behalf of TKD.
The terms of the trust are for the trustee to hold the funds and “apply any trust income or capital for the maintenance, education, benefit and advancement of TKD in such…

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: TKD [2020] NSWCATGD 1
Case: [2020] NSWCATGD 1
Decision Date: 22 January 2020

CaseChat Overview and Summary

TKD brought an application for a financial management order, where the central issue was whether a financial manager was necessary to oversee the affairs of the subject person, who had an acquired brain injury. The dispute arose in the context of the subject person being the beneficiary of a trust managed by the NSW Trustee and Guardian pursuant to a Supreme Court order. The subject person, while receiving multiple sources of income, was deemed unable to manage his own affairs effectively. The court had to determine if appointing a financial manager would be beneficial. The court concluded that given the subject person's incapacity to manage his own financial matters, the appointment of a financial manager was indeed necessary. The NSW Trustee and Guardian was appointed to manage the subject person's estate under the NSW Trustee and Guardian Act 2009. The order mandated that the management of the estate of TKD be committed to the NSW Trustee and Guardian, providing the necessary oversight and administration of the subject person's financial affairs.

Orders

Orders of the court

1. The estate of TKD is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. The management of the estate of TKD is committed to the NSW Trustee and Guardian.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	TKD [2020] NSWCATGD 1
Hearing dates:	22 January 2020
Date of orders:	22 January 2020
Decision date:	22 January 2020
Jurisdiction:	Guardianship Division
Before:	J Claridge, Senior Member (Legal) Dr L Tong AM, Senior Member (Professional) S Bullock, General Member (Community)
Decision:	1. The estate of TKD is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of TKD is committed to the NSW Trustee and Guardian.
Catchwords:	FINANCIAL MANAGEMENT – application for financial management order – whether there is a need for another person to manage the subject person’s affairs on their behalf – where subject person has an acquired brain injury – where subject person is the beneficiary of a trust administered by the NSW Trustee and Guardian as a result of a Supreme Court order – where subject person has multiple sources of income – subject person unable to manage his own affairs – beneficial for a financial manager to be appointed – financial management order made – NSW Trustee and Guardian appointed.
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 77(4) Guardianship Act 1987 (NSW), ss 4, 25M
Cases Cited:	CJ v AKJ [2015] NSWSC 498 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 Re Tracey [2016] QCA 194
Texts Cited:	Nil
Category:	Principal judgment
Parties:	005: Financial Management Application TKD (the person) TZM (applicant) WBX (carer) NSW Trustee and Guardian (proposed financial manager)
Representation:	Nil
File Number(s):	NCAT 2005/00374404
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)).