NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: YKM [2023] NSWCATGD 9 Hearing dates: 19 April 2023 Date of orders: 19 April 2023 Decision date: 19 April 2023 Jurisdiction: Guardianship Division Before: E M Connor, Senior Member (Legal) Decision: The financial management order made on 5 July 2022 is revoked from 19 April 2023. The person appointed as manager of the estate is to pay over or hand over the estate to: YKM
Catchwords: FINANCIAL MANAGEMENT – review of reviewable financial management order – whether financial management order should be revoked – part of the subject person’s estate is excluded from the financial management order – effect of s 25E(2) of the Guardianship Act 1987 – where the subject person purchased property while under a financial management order – where the NSW Trustee and Guardian is managing the subject person’s compensation payment – where access to the compensation payment is needed to pay off the mortgage – finding that it is in the best interests of the subject person for the financial management order to be revoked – order revoked
Legislation Cited: Guardianship Act 1987 (NSW), s 25E(2)
NSW Trustee and Guardian Act 2009 (NSW), s 71(1)
Cases Cited: Re Application for Partial Management Orders [2014] NSWSC 1468
Texts Cited: None cited.
Category: Principal judgment Parties: 002: Review of Reviewable Financial Management Order
YKM (the person)
NSW Trustee and Guardian (financial manager)
AZJ (spouse)Representation: Nil.
File Number(s): NCAT 2022/00137251 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
Background
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YKM is 52 years old and lives with his wife, AZJ, and son, Mr Z, in north-west Sydney. In 2018 YKM was injured in an industrial accident and the Tribunal has previously accepted evidence that he has significant disabilities as a result. He has been diagnosed with post-traumatic stress disorder, persistent depressive disorder and schizophrenia.
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On or about 19 April 2022 a consent order in YKM’s favour was made by the District Court of New South Wales in relation to personal injury proceedings against his employer and another person in relation to the accident.
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On 5 July 2022 the Tribunal made a financial management order for YKM and ordered a review within nine months. The financial management order excluded all YKM’s assets other than the judgment sum of approximately $450,000 payable to him in relation to District Court Proceedings [Number removed for publication.] from the order (the ‘Compensation Payment’).
The hearing
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At the end of these Reasons for Decision are lists of the parties to the review and the witnesses who attended the hearing. [Appendix removed for publication.]
Settlement
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The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was no conflict in this matter.
REVIEW OF REVIEWABLE FINANCIAL MANAGEMENT ORDER
What did the Tribunal have…
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- AGLC
- YKM [2023] NSWCATGD 9
- Case
- [2023] NSWCATGD 9
- Decision Date
CaseChat Overview and Summary
The court meticulously examined the statutory provisions and case law, focusing on the intent and purpose of the Guardianship Act 1987. It concluded that the exclusion of part of the subject person's estate from the financial management order, specifically the property and the compensation payment, was significant. The court reasoned that allowing continued access to the compensation payment for the purpose of settling the mortgage would align with the legislative intent to support the subject person's autonomy and independence. Given the subject person's need for the compensation payment to manage their financial obligations, the court found that revoking the financial management order would best serve the subject person's interests. The court ordered that the financial management order be revoked, and the manager of the estate was directed to transfer the estate to YKM.
The Supreme Court of Queensland ultimately decided that the financial management order should be revoked. The court held that revoking the order would enable the subject person to manage their financial affairs more effectively, particularly in relation to the mortgage on the property. The court acknowledged the importance of preserving the subject person's autonomy and recognised that the revocation would facilitate better financial management. The court made an order revoking the financial management order from 19 April 2023, and instructed the person appointed as manager of the estate to transfer the estate to YKM. This decision ensured that the subject person could access their compensation payment to settle the mortgage and manage their financial responsibilities independently.
Orders
Orders of the court
The financial management order made on 5 July 2022 is revoked from 19 April 2023. The person appointed as manager of the estate is to pay over or hand over the estate to: YKM
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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