YKM - [2023] NSWCATGD 9

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

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.
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.
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

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

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…

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 YKM

Details

AGLC: YKM [2023] NSWCATGD 9
Case: [2023] NSWCATGD 9
Decision Date: 19 April 2023

CaseChat Overview and Summary

In this case, the applicant, YKM, sought the review of a financial management order made over the estate of the subject person. The dispute centred on whether the order should be revoked given that a portion of the subject person's estate was excluded from its scope. The matter was heard in the Supreme Court of Queensland, where the court was required to determine the implications of section 25E(2) of the Guardianship Act 1987 in the context of the subject person's purchase of property while under the financial management order, and the role of the NSW Trustee and Guardian in managing the subject person's compensation payment. The court needed to weigh whether revoking the financial management order would be in the best interests of the subject person, particularly in light of the necessity to access the compensation payment to settle the mortgage on the purchased property.

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

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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.