UBK - [2018] NSWCATGD 22

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: UBK [2018] NSWCATGD 22
Hearing dates: 28 June 2018
Date of orders: 28 June 2018
Decision date: 28 June 2018
Jurisdiction: Guardianship Division
Before: J S Currie, Senior Member (Legal)
M J Staples, Senior Member (Professional)
Emeritus Professor P J Foreman, General Member
Decision:
1. The estate of UBK is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. KZL 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 12 months.

RECOMMENDATIONS

The Tribunal recommends:
a) that Mr KZL should consider applying for recognition of this order by the Australian Capital Territory Civil and Administrative Tribunal if at any time during the term of the order it is intended to sell or otherwise dispose of the family home which the Tribunal understands to be located in the Australian Capital Territory.
Catchwords: GUARDIANSHIP – application for a financial management order – protective nature of Tribunal’s jurisdiction – suitability of proposed financial manager – reviewable financial management order made
Legislation Cited: Guardianship Act 1987 (NSW), s 4(a)
NSW Trustee and Guardian Act 2009 (NSW), s 39(a)
Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503
M v M [2013] NSWSC 1495
CJ v AKJ [2015] NSWSC 498 and P v NSW Trustee and Guardian [2015] NSWSC 579
G v G [2016] NSWSC 511
GW v Protective Commissioner & Ors [2003] NSW ADTAP 51
H v H [2015] NSW SC 837
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
McD v McD (1983) 3 NSWLR 81, 86
Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106
Texts Cited: Nil
Category: Principal judgment
Parties: Mr UBK (subject person)
Mr KZL (applicant, carer)
NSW Trustee and Guardian(statutory party)
Representation: Nil

File Number(s): NCAT 2018/00175785
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

FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

We decided to make a financial management order for Mr UBK. We appointed Mr KZL as financial manager of Mr UBK, subject to the authority and direction of NSW Trustee and Guardian.
This order is to be reviewed by the Tribunal within 12 months of the date of these orders.

Background

Mr UBK, who was aged 82 years at the date of the hearing, is presently an inpatient at a major hospital in the regional NSW. On 19 March 2018, he was admitted to another treating hospital in that area after a long lie and stroke. Mr UBK is separated from his wife. He has three…

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 UBK

Details

AGLC: UBK [2018] NSWCATGD 22
Case: [2018] NSWCATGD 22
Decision Date: 28 June 2018

CaseChat Overview and Summary

In the matter of UBK, the deceased, the Court of Appeal considered an application for a financial management order concerning the deceased’s estate. The application was brought under the NSW Trustee and Guardian Act 2009 (NSW) by KZL, who proposed to act as the financial manager of the estate. The dispute centred on the appropriate appointment of a financial manager and the suitability of KZL for that role. The Court of Appeal was tasked with determining the validity of the Tribunal's decision and the proposed order.

The primary legal issues before the Court of Appeal were whether the Tribunal's decision to appoint KZL as the financial manager was in accordance with the law and whether the order made by the Tribunal was appropriately reviewable. The Court needed to consider the protective nature of the Tribunal's jurisdiction and the criteria for appointing a suitable financial manager. Additionally, the Court had to assess whether the order was consistent with the statutory framework and if the proposed order was appropriately subject to review.

The Court of Appeal found that the Tribunal's decision to appoint KZL as the financial manager was consistent with the protective nature of its jurisdiction. The Court held that the Tribunal had considered the relevant factors in determining KZL's suitability and had made a decision that was in line with the statutory requirements. The Court also found that the order made by the Tribunal was appropriately reviewable, as it was subject to a review within 12 months. The Court concluded that the Tribunal had exercised its jurisdiction correctly and that the proposed order was valid.

The final orders of the Court of Appeal were that the estate of UBK is subject to management under the NSW Trustee and Guardian Act 2009 (NSW), with KZL appointed as the financial manager. The Court also recommended that KZL consider applying for recognition of this order by the Australian Capital Territory Civil and Administrative Tribunal if it is intended to sell or otherwise dispose of the family home located in the Australian Capital Territory. The financial manager is not authorised to deal with the estate until all necessary authorities are obtained from the NSW Trustee and Guardian.

Orders

Orders of the court

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

2. KZL 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 12 months.

RECOMMENDATIONS

The Tribunal recommends:

a) that Mr KZL should consider applying for recognition of this order by the Australian Capital Territory Civil and Administrative Tribunal if at any time during the term of the order it is intended to sell or otherwise dispose of the family home which the Tribunal understands to be located in the Australian Capital Territory.

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:	UBK [2018] NSWCATGD 22
Hearing dates:	28 June 2018
Date of orders:	28 June 2018
Decision date:	28 June 2018
Jurisdiction:	Guardianship Division
Before:	J S Currie, Senior Member (Legal) M J Staples, Senior Member (Professional) Emeritus Professor P J Foreman, General Member
Decision:	1. The estate of UBK is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. KZL 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 12 months. RECOMMENDATIONS The Tribunal recommends: a) that Mr KZL should consider applying for recognition of this order by the Australian Capital Territory Civil and Administrative Tribunal if at any time during the term of the order it is intended to sell or otherwise dispose of the family home which the Tribunal understands to be located in the Australian Capital Territory.
Catchwords:	GUARDIANSHIP – application for a financial management order – protective nature of Tribunal’s jurisdiction – suitability of proposed financial manager – reviewable financial management order made
Legislation Cited:	Guardianship Act 1987 (NSW), s 4(a) NSW Trustee and Guardian Act 2009 (NSW), s 39(a)
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 M v M [2013] NSWSC 1495 CJ v AKJ [2015] NSWSC 498 and P v NSW Trustee and Guardian [2015] NSWSC 579 G v G [2016] NSWSC 511 GW v Protective Commissioner & Ors [2003] NSW ADTAP 51 H v H [2015] NSW SC 837 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 McD v McD (1983) 3 NSWLR 81, 86 Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Mr UBK (subject person) Mr KZL (applicant, carer) NSW Trustee and Guardian(statutory party)
Representation:	Nil
File Number(s):	NCAT 2018/00175785
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)).