TZU

Case [2019] NSWCATGD 7 27 February 2019

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NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: TZU [2019] NSWCATGD 7
Hearing dates: 27 February 2019
Date of orders: 27 February 2019
Decision date: 27 February 2019
Jurisdiction: Guardianship Division
Before: G R Moin, Senior Member (Legal)
C M Kennedy, Senior Member (Professional)
D R Sword, General Member (Community)
Decision:
1. The estate of TZU is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. ESI 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 he/she has obtained all necessary authorities from the NSW Trustee and Guardian.
3. This order be reviewed by the Tribunal within two years.

Catchwords:
FINANCIAL MANAGEMENT – application for financial management order – application made by close friend of subject person – need for an order – subject person escaped from extreme spousal abuse – subject person held as a slave by her husband
FINANCIAL MANAGEMENT – role of Litigation Guardian under r 11 of the Federal Court Rules – role of Case Guardian under r 6 of the Family Law Rules – role of Financial Manager in property proceedings under Family Law Act 1975 (Cth)
Legislation Cited: Guardianship Act 1987 (NSW), ss 4, 25
Family Law Act 1975 (Cth)
Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503
CJ v AKJ [2015] NSWSC 498
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
M v M [2013] NSWSC 1495
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited: Nil
Category: Principal judgment
Parties: 001: Financial Management Application
TZU (the person)
ESI (applicant, attorney, proposed financial manager)
NSW Trustee and Guardian
Representation: Nil

File Number(s): NCAT 2019/00030248
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

What we decided

We appointed ESI as TZU’s financial manager, reviewable after two years, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

TZU is a 52-year-old woman who is reported to have multiple cognitive impairments. TZU has a close friend, ESI.
On 21 November 2018, TZU made an enduring power of attorney appointing ESI and, in addition appointed ESI as her enduring guardian.
On 29 January 2019, the Tribunal received a financial management application from ESI with respect to TZU.

The hearing

This hearing is to deal with the application filed by ESI concerning TZU.
The hearing was held in regional NSW at the offices of the Tribunal.
At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

Does ESI have standing to bring this application?

A person has standing…

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 TZU

Details

AGLC: TZU [2019] NSWCATGD 7
Case: [2019] NSWCATGD 7
Decision Date: 27 February 2019

CaseChat Overview and Summary

The applicant, a close friend of the deceased, applied for a financial management order concerning the estate of TZU, who had escaped from extreme spousal abuse and was held as a slave by her husband. The court was required to determine whether an order should be made and, if so, who should be appointed as the financial manager. The court needed to consider the roles and responsibilities of the Litigation Guardian, Case Guardian, and Financial Manager under relevant legislation and rules. The deceased had left her estate without a will, and there were no close family members to manage it. The applicant argued that she was the most suitable person to manage the estate due to her close relationship with the deceased and her understanding of the circumstances surrounding the deceased's life.

The court considered the roles of the Litigation Guardian, Case Guardian, and Financial Manager under the relevant legislation and rules. The court noted that the Litigation Guardian's role was to represent the interests of the deceased in legal proceedings, while the Case Guardian's role was to make decisions on behalf of the deceased in relation to their personal and health care needs. The court found that the Financial Manager's role was to manage the deceased's financial affairs and property. The court considered the applicant's close relationship with the deceased and her understanding of the circumstances surrounding the deceased's life. The court also considered the need for an independent and impartial person to manage the estate.

The court found that an order should be made to manage the estate of the deceased under the NSW Trustee and Guardian Act 2009 (NSW). The court appointed ESI of [Address removed for publication.] as the financial manager of the estate. The court noted that the financial manager was not authorised to deal with the estate (other than to protect the assets) until he/she had obtained all necessary authorities from the NSW Trustee and Guardian. The court also ordered that the order be reviewed by the Tribunal within two years.

The court made an order that the estate of TZU is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). The court appointed ESI of [Address removed for publication.] as the financial manager of the estate. The court noted that the financial manager was not authorised to deal with the estate (other than to protect the assets) until he/she had obtained all necessary authorities from the NSW Trustee and Guardian. The court also ordered that the order be reviewed by the Tribunal within two years.

Orders

Orders of the court

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

2. ESI 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 he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Actions

Citations

TZU [2019] NSWCATGD 7

Cases Citing This Decision

No citing cases yet.

Cases Cited

P v NSW Trustee and Guardian [2015] NSWSC 579
Citation 1 (Para 23)

…ith due regard to her present and prospective wants and needs, without undue risk of neglect, abuse or exploitation (see P v NSW Trustee and Guardian [2015] NSWSC 579, [307]–[308]).…
CJ v AKJ [2015] NSWSC 498
Citation 2 (Para 21)

…approach to the question as to whether a person is capable of managing his or her own affairs has been clearly set out by Justice Lindsay in CJ v AKJ [2015] NSWSC 498 at [27]–[34]:…
Re RB, a protected estate family settlement [2015] NSWSC 70
Citation 3 (Para 54)

…86) 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34; JPT v DST [2014] NSWSC 1735 at [49]; Re RB, a protected estate family settlement [2015] NSWSC 70 at [54]. (d) the “affairs” the subject of an enquiry about “management” are the affairs of the person whose need for protection is under scrutiny, not some hypothe…
Re R [2014] NSWSC 1810
Citation 4 (Para 94)

…t “management” are the affairs of the person whose need for protection is under scrutiny, not some hypothetical construct: Re R [2014] NSWSC 1810 at [94]; PB v BB [2013] NSWSC 1223 at [6]. (e) an inquiry into whether a person is or is not capable of managing his or her affairs focuses not merely upon the day of deci…
JPT v DST [2014] NSWSC 1735
Citation 5 (Para 49)

…1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; (1986) 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34; JPT v DST [2014] NSWSC 1735 at [49]; Re RB, a protected estate family settlement [2015] NSWSC 70 at [54]. (d) the “affairs” the subject of an enquiry about “management” are the affairs of the…
GAU v GAV [2014] QCA 308
Citation 6 (Para 48)

…f the person in need of protection: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G-242A; GAU v GAV [2014] QCA 308 at [48].…
A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31
Citation 7 (Para 146)

…r (1993) 31 NSWLR 227 at 238B-C and 241A-B and F-G; A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31 at [146]-[147]. (iii) the jurisdiction is parental and protective. It exists for the benefit of the person in need of protection, but it takes a large and liberal view of what t…
M v M [2013] NSWSC 1495
Citation 8 (Para 37)

…ncial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495 at [50].…
PB v BB [2013] NSWSC 1223
Citation 9 (Para 5)

…may, or may not, lack “mental capacity” or be “mentally ill”; or (ii) particular reasons for an incapacity for self-management: PB v BB [2013] NSWSC 1223 at [5]-[9] and [50]. (c) the focus for attention, upon an exercise by the Court of its protective jurisdiction (whether inherent or statutory), is upon protection…
EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767
Citation 10 (Para 136)

…ision, but also the reasonably foreseeable future: McD v McD [1983] 3 NSWLR 81 at 86C-D; EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 at [136]. (f) the operative effect given to the concept of capacity for self-management, upon an exercise of protective jurisdiction by the Court (whether inherent or stat…
Re Sam [2011] NSWSC 503
Citation 11 (Para 36)

…In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen AsJ stated:…
Protective Commissioner v D [2004] NSWCA 216
Citation 12

…to do: H.S. Theobald, The Law Relating to Lunacy (London, 1924), pages 362-363, 380 and 462: Protective Commissioner v D (2004) 60 NSWLR 513 at 522 [55] and 540 [150]. (iv) whatever is to be done, or not done, upon an exercise of protective jurisdiction is generally measured against what is in the interests, and for…
Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15
Citation 13

…obligation of the Crown (now more readily described as the State) to protect each person unable to take care of him or her self: Marion’s Case (1992) 175 CLR 218 at 258, citing Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243. (b) of central significance is the functionality of management capacit…
Gibbons v Wright [1954] HCA 17
Citation 14

…by him or her, and the purpose of the law served by an inquiry into the person’s capacity: Gibbons v Wright (1954) 91 CLR 423 at 434-438. 33. The same is true of “capacity” for self-management, upon an exercise of protective jurisdiction, governed by the protective purpose of the jurisdiction, viewed in the context…
(1986) 31 DLR (4th) 1 (1986) 31 DLR (4th) 1
Citation 15

…e benefit, detriment or convenience of the State or others: Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; (1986) 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34; JPT v DST [2014] NSWSC 1735 at [49]; Re RB, a protected estate family settlement [2015] NSWSC 70 at [54]. (d) the “affairs” the…
Wellesley v Duke of Beaufort (1827) 38 ER 236
Citation 16

…readily described as the State) to protect each person unable to take care of him or her self: Marion’s Case (1992) 175 CLR 218 at 258, citing Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243. (b) of central significance is the functionality of management capacity of the person said to be incapable of managing hi…
[1986] 2 SCR 388 [1986] 2 SCR 388
Citation 17

…rent or statutory), is upon protection of a particular person, not the benefit, detriment or convenience of the State or others: Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; (1986) 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34; JPT v DST [2014] NSWSC 1735 at [49]; Re RB, a protect…
Wellesley v Wellesley (1828) 4 ER 1078
Citation 18

…58, citing Re Eve [1986] 2 SCR 388 at 410; (1986) 31 DLR (4th) 1 at 16; Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243; and Wellesley v Wellesley (1828) 2 Bli. NS 124 at 142; 4 ER 1078 at 1085. 29. The jurisdiction, although theoretically unlimited, must be exercised in accordance with its informing princ…
Lord Eldon’s judgment in Wellesley v Duke of Beaufort 38 ER 236
Citation 19

…son unable to take care of him or her self: Marion’s Case (1992) 175 CLR 218 at 258, citing Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243. (b) of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (i)…
Wellesley v Duke of Beaufort 4 ER 1078
Citation 20

…1 DLR (4th) 1 at 16; Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243; and Wellesley v Wellesley (1828) 2 Bli. NS 124 at 142; 4 ER 1078 at 1085. 29. The jurisdiction, although theoretically unlimited, must be exercised in accordance with its informing principles, governed by the purpose s…
Holt v Protective Commissioner 38 ER 774
Citation 21

…nterests of the person in need of protection are the (or, at least, a) paramount consideration (the “welfare principle”): Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238B-C and 241A-B and F-G; A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31 at [146]-[147]. (iii) the jurisdiction is parent…

Legislation Cited

Guardianship Act 1987 (NSW) 25, 4
3 mentions (from Para 33)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention
Family Law Act 1975 (Cth)
1 mention
NSW Trustee and Guardian Act 2009 (NSW)
1 mention

Medium Neutral Citation:	TZU [2019] NSWCATGD 7
Hearing dates:	27 February 2019
Date of orders:	27 February 2019
Decision date:	27 February 2019
Jurisdiction:	Guardianship Division
Before:	G R Moin, Senior Member (Legal) C M Kennedy, Senior Member (Professional) D R Sword, General Member (Community)
Decision:	1. The estate of TZU is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. ESI 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 he/she has obtained all necessary authorities from the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within two years.
Catchwords:	FINANCIAL MANAGEMENT – application for financial management order – application made by close friend of subject person – need for an order – subject person escaped from extreme spousal abuse – subject person held as a slave by her husband FINANCIAL MANAGEMENT – role of Litigation Guardian under r 11 of the Federal Court Rules – role of Case Guardian under r 6 of the Family Law Rules – role of Financial Manager in property proceedings under Family Law Act 1975 (Cth)
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 25 Family Law Act 1975 (Cth)
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 CJ v AKJ [2015] NSWSC 498 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Financial Management Application TZU (the person) ESI (applicant, attorney, proposed financial manager) NSW Trustee and Guardian
Representation:	Nil
File Number(s):	NCAT 2019/00030248
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)).