TZF - [2020] NSWCATGD 22

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: TZF [2020] NSWCATGD 22
Hearing dates: 10 February 2020
Date of orders: 10 February 2020
Decision date: 10 February 2020
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
Associate Professor C Willcox, Senior Member (Professional)
J Cootes AM, General Member (Community)
Decision:
1. The estate of TZF is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of TZF is committed to the NSW Trustee and Guardian.
3. This order be reviewed by the Tribunal within two years.
4. The following specified part of the estate is excluded from this financial management order:
Centrelink benefits and employment income.

Catchwords:
FINANCIAL MANAGEMENT – application for a financial management order – potential for large compensation payout – whether appropriate timing to bring application – consideration of H v H [2015] NSWSC 837 – court proceedings not formally commenced – advantageous for a financial manager to negotiate and agree to settlement – subject person developing independence but vulnerable to exploitation – subject person would be incapable of managing large sum payout as a result of mediation – no private person willing to be appointed financial manager – NSW Trustee and Guardian appointed – order made – order excludes Centrelink and employment income.
PROCEDURAL FAIRNESS – hearing rule – s 4(d) of the Guardianship Act 1987 – subject person voluntarily opted out of attending hearing – subject person’s views able to be ascertained through other evidence – no adjournment.

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 74, 75, 82
Guardianship Act 1987 (NSW), ss 4(b)-(d), 4(f), 25E(2)
NSW Trustee and Guardian Act 2009 (NSW), ss 17(2), 38

Cases Cited:
CJ v AKJ [2015] NSWSC 498
H v H [2015] NSWSC 837
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106

Texts Cited:
Nil

Category: Principal judgment
Parties: TZF (the person)
DYJ (applicant)
NSW Trustee and Guardian
Representation:
Counsel:
Solicitors:

File Number(s): NCAT 2019/00343302
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

What the Tribunal decided

The Tribunal committed the estate of TZF to the management of the NSW Trustee and Guardian. The Tribunal excluded from the order Centrelink benefits and employment income. We also ordered that the order is to be reviewed in two years’ time.

Background

TZF is a 21-year-old Aboriginal man who for the past 12 months or so has lived in rental accommodation in regional NSW. TZF has the support of his former foster carer, DYJ, and her family who live near to where TZF lives.
DYJ is the applicant for a financial management order for TZF. The application explains that TZF will potentially receive…

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 TZF

Details

AGLC: TZF [2020] NSWCATGD 22
Case: [2020] NSWCATGD 22
Decision Date: 10 February 2020

CaseChat Overview and Summary

The case involved an application for a financial management order for the estate of TZF. The primary concern was the potential for a substantial compensation payout, which raised questions about the appropriate timing for the application and the suitability of appointing a financial manager. The court had to consider whether the subject person was developing independence yet remained vulnerable to exploitation, as well as their capacity to manage a large sum of money. The application was brought before the court as formal proceedings had not yet been commenced, and it was deemed advantageous for a financial manager to negotiate and potentially agree to a settlement.

The legal issues before the court included whether it was appropriate to make the order at that time and who would be suitable to manage the estate. The court considered the principles from H v H [2015] NSWSC 837, which suggested that the timing of such applications should be carefully evaluated. Additionally, the court had to determine if the subject person could manage the payout effectively and if there were any willing private individuals to take on the role of financial manager. After assessing the evidence, the court concluded that no private person was willing to be appointed and that the NSW Trustee and Guardian was the most suitable entity for managing the estate.

The court found that the subject person, while developing independence, remained vulnerable to exploitation and would be incapable of managing a large sum payout due to their condition. Given the absence of a private person willing to take on the role, the NSW Trustee and Guardian was appointed as the financial manager. The court made an order subjecting the estate of TZF to management under the NSW Trustee and Guardian Act 2009, with the management of the estate committed to the NSW Trustee and Guardian. The order also excluded Centrelink benefits and employment income from the financial management order. The court scheduled a review of this order by the Tribunal within two years.

Orders

Orders of the court

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

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

3. This order be reviewed by the Tribunal within two years.

4. The following specified part of the estate is excluded from this financial management order:

Centrelink benefits and employment income.

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

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Medium Neutral Citation:	TZF [2020] NSWCATGD 22
Hearing dates:	10 February 2020
Date of orders:	10 February 2020
Decision date:	10 February 2020
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member Associate Professor C Willcox, Senior Member (Professional) J Cootes AM, General Member (Community)
Decision:	1. The estate of TZF is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of TZF is committed to the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within two years. 4. The following specified part of the estate is excluded from this financial management order: Centrelink benefits and employment income.
Catchwords:	FINANCIAL MANAGEMENT – application for a financial management order – potential for large compensation payout – whether appropriate timing to bring application – consideration of H v H [2015] NSWSC 837 – court proceedings not formally commenced – advantageous for a financial manager to negotiate and agree to settlement – subject person developing independence but vulnerable to exploitation – subject person would be incapable of managing large sum payout as a result of mediation – no private person willing to be appointed financial manager – NSW Trustee and Guardian appointed – order made – order excludes Centrelink and employment income. PROCEDURAL FAIRNESS – hearing rule – s 4(d) of the Guardianship Act 1987 – subject person voluntarily opted out of attending hearing – subject person’s views able to be ascertained through other evidence – no adjournment.
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 74, 75, 82 Guardianship Act 1987 (NSW), ss 4(b)-(d), 4(f), 25E(2) NSW Trustee and Guardian Act 2009 (NSW), ss 17(2), 38
Cases Cited:	CJ v AKJ [2015] NSWSC 498 H v H [2015] NSWSC 837 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Texts Cited:	Nil
Category:	Principal judgment
Parties:	TZF (the person) DYJ (applicant) NSW Trustee and Guardian
Representation:	Counsel: Solicitors:
File Number(s):	NCAT 2019/00343302
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.