procedural. Interlocutory orders made: appointment of the NSW Trustee as receiver and manager limited to funds held in the fourth defendant's trust account (approx. $358,225.32); order for independent medical...
Key principles
Where the Court exercises its protective jurisdiction, the welfare of a vulnerable person is the dominant consideration; that jurisdiction authorises interlocutory measures...
The Court may order an independent medico-legal examination of a vulnerable person, and appointment of an authorised visitor, even where the person or those in apparent control...
A limited receivership, confined to specific trust funds held by a solicitor, may be an appropriate and proportionate mechanism to facilitate access to the person (for medical...
Issues before the court
Whether the Supreme Court in its protective jurisdiction may order an independent medical examination of a vulnerable person over the expressed...
Whether a limited receivership confined to funds held in a solicitor's trust account is an appropriate interlocutory measure to facilitate the...
What weight should be given to affidavits from those who control access to the vulnerable person when they oppose independent investigation?
Plain English Summary
The Supreme Court (Lindsay J) made interim protective orders to protect an elderly vulnerable woman (the fifth defendant) after concerns that she had been moved far from her home and isolated by persons who control her affairs. The Court appointed the NSW Trustee as a limited receiver over about $358,225 held in a solicitor's trust account, ordered an independent medical examination (with a Serbian translator if possible), and authorised an official visitor to report to the Court. The measures were limited and aimed only to obtain independent, objective information about her capacity and welfare and to preserve funds while those inquiries proceed.
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Deep Dive
1,761 words · generated 14/06/2026
What happened
An 83-year-old widow of Serbian origin (the fifth defendant) with significant assets was previously under financial management by the NSW Trustee following an NCAT order of 9 October 2015. On 29 November 2019 she executed enduring appointments (an enduring power of attorney and an enduring guardianship) that recorded her wish to remain living in her long-term home at North Bondi. On 19 June 2020 NCAT revoked the financial management order, not because it found she had regained capacity, but because the Tribunal considered revocation in her best interests to reduce care costs and help her remain at home (PROCEDURAL CONTEXT [1]–[3]; Tribunal reasons [63]–[76] as quoted).
Cited legislation
No linked legislation citations have been extracted yet.
Shortly after NCAT's revocation, the fifth defendant was relocated in mid‑August 2020 from North Bondi to a distant address in Liverpool by persons said to be her enduring appointees and associates (the first, second and third defendants). Access to her was reportedly restricted; the relocation was not communicated to the plaintiff, a former minister and friend who asserted an ongoing pastoral interest in her welfare (INTRODUCTION [3], [19]–[21]; PROCEDURAL CONTEXT [3]–[4]).
The plaintiff filed a summons (3 September 2020; amended 21 September 2020) seeking, among other things, an independent medical examination to report to the Court on the fifth defendant's capacity for self-management, a committee/guardian appointment if appropriate, and the appointment of the NSW Trustee as a receiver and manager of a specified fund to facilitate the medical examination and preserve assets (PROCEDURAL CONTEXT [1]; INTERLOCUTORY ORDERS orders 1–13).
After hearings on 30 October and 18 November 2020, Lindsay J made interlocutory orders appointing the NSW Trustee as receiver and manager limited to the sum paid into the fourth defendant's trust account (about $358,225.32), ordering an independent medical examination by Associate Professor Tuly Rosenfeld (with a Serbian translator), authorising an authorised visitor under s 123 of the NSW Trustee and Guardian Act 2009 to attend and report, and requiring cooperation and provision of trust account records (INTERLOCUTORY ORDERS orders 1–13; INTRODUCTION [1], INTERLOCUTORY ORDERS [9]–[12]).
Why the court decided this way
Three central considerations drove the outcome.
Protective jurisdiction and welfare primacy. The Court proceeded under the protective jurisdiction where the welfare of a vulnerable person is paramount. Lindsay J expressly invoked the protective jurisdiction principles identified in Marion's Case and Holt v Protective Commissioner, and emphasised that the present case is not an ordinary adversarial application but one where the Court's protective remit dominates (INTERLOCUTORY ORDERS [6]). This conceptual frame permits the Court to order measures necessary to ascertain and protect welfare, including intrusive steps, when justified.
Objective concerns arising from NCAT's unusual revocation plus subsequent events. NCAT revoked the management order for reasons of perceived best interests (to reduce costs to permit the person to remain at home) despite not being satisfied she had regained capacity (PROCEDURAL CONTEXT [2]; Tribunal reasons [63]–[76]). Shortly afterwards the person was moved away from her home and isolated. Those facts raised serious objective concerns that the person might be subject to undue influence, exploitation, or isolation. The Court considered the relocation and restricted access inconsistent with what had been put to NCAT, and placed weight on the need for independent, objective investigation (INTERLOCUTORY ORDERS [3], [8]).
Need for independent evidence where those in control may lack objectivity. The defendants proffered affidavit evidence that the fifth defendant was capable and did not wish to be examined; but the Court cautioned about taking such evidence at face value where the deponents are in close control of the vulnerable person and where the circumstances (relocation, restriction of access, inconsistent statements) give rise to doubt about objectivity. The Court concluded that the most appropriate way to resolve these conflicting claims was to order independent medical assessment and an authorised visitor's report (INTERLOCUTORY ORDERS [1]–[4]).
The Court distinguished Angliss v Urquhart, an adversarial appeal concerning medical examination where existing medical evidence and the health risk to the person were determinative, observing that the protective jurisdiction context here is materially different and supports different procedural powers to protect welfare (INTERLOCUTORY ORDERS [4]–[5]).
The orders were deliberately confined and proportionate: receivership limited to the specific trust funds and medical examination limited to capacity for self-management, with address redacted in reports, and costs to be met from the estate in the first instance (INTERLOCUTORY ORDERS orders 1, 3, 4, 6).
Before and after state of the law
Before: Authorities such as Angliss v Urquhart restrained courts from ordering intrusive medical examinations in purely adversarial contexts where there was medical risk or where existing medical evidence made such orders unnecessary or too risky. That line emphasised procedural safeguards in the adversarial arena.
During: Lindsay J reaffirmed that the adversarial constraints of Angliss do not automatically apply in protective jurisdiction proceedings. The protective jurisdiction, as articulated in Marion's Case and Holt, prioritises welfare and empowers the Court to take measures to ascertain and protect that welfare. Lindsay J cited In re WM (1903) as a historical example where the Full Court upheld examination over the opposition of persons in whose care the vulnerable person was placed, and the present facts more closely resembled that protective context than Angliss (INTERLOCUTORY ORDERS [5]–[8]).
After: The judgment clarifies that in protective-list proceedings the Court may order medical examinations and limited receivership to obtain independent evidence and to protect a vulnerable person's interests where objective concerns of isolation or undue influence arise. The decision calibrates proportionality: intrusive orders should be carefully tailored and limited to what is necessary to secure independent information and preserve assets while the question of longer-term management is resolved.
Key passages with plain-English translation
"Upon an exercise of protective jurisdiction ... I made interlocutory orders ... designed to facilitate: (a) an independent medical examination ... and (b) the appointment of a visitor ..." (INTRODUCTION [1]).
Plain English: The Court used its power to protect vulnerable people to make temporary orders to get independent medical and visitor reports so it could understand the person's capacity and wishes.
"The defendants contended that I should refrain from making an order for a medical examination of the fifth defendant against her wishes ... That case was very different from this one." (INTERLOCUTORY ORDERS [4]–[5]).
Plain English: The defendants relied on another case where a medical exam was refused; the judge said that case is different because here the Court is acting to protect a vulnerable person, not just resolving a private dispute.
"What the fifth defendant's co-defendants and DS have done ... calls for an independent review by persons unconnected with any partisan interest." (INTERLOCUTORY ORDERS [3]).
Plain English: Because people who have control over the woman may be biased, the judge said neutral people must independently evaluate her situation.
"Particular care needs to be taken to ascertain ... capacity for self-management ... decision may well have to be made ... to sell some of her real estate in order to fund the care she needs." (INTERLOCUTORY ORDERS [1] after orders).
Plain English: The judge stressed urgency: the woman's level of capacity affects personal care decisions and might require selling property, hence the need for prompt independent assessment.
What fact patterns trigger this precedent
A previously protected person has had formal financial management revoked by a tribunal for reasons other than finding regained capacity (e.g., to reduce costs), and shortly thereafter is relocated far from home without clear justification.
Significant assets are involved, and a fund or payment sits in a solicitor's trust account, creating a tangible asset that can be preserved by limited receivership.
Persons with enduring powers or close control of the vulnerable person assert the person refuses medical examination and provide affidavits asserting capacity, but there are objective reasons to doubt their objectivity (isolation, prior findings of vulnerability, inconsistent statements about relationships).
There is no up-to-date independent medical or geriatric evidence, and there exists a real possibility that the person's welfare is at risk from isolation, undue influence, or financial exploitation.
When this cluster of facts appears, a protective-list judge may order independent medical examination and a constrained receivership to enable the assessment and preserve assets.
How later courts have treated it
This judgment is an interlocutory, protective-list decision by Lindsay J that clarifies the Court's powers to order independent investigations in protective contexts. Later courts will likely treat it as an application of established protective jurisdiction principles (Marion's Case, Holt) to modern factual circumstances, reinforcing that Angliss does not preclude protective measures where welfare concerns predominate. The decision is procedural and fact-specific; as with In re WM historically, its precedential weight will be strongest where similar factual combinations (revocation without capacity, relocation and isolation, contested access, and significant assets) appear.
Readers should note that the decision confines its orders narrowly and emphasises proportionality; that approach is likely to guide later judges when balancing intrusion against welfare protection.
Still-open questions
Scope and limits of compelled examination. The judgment ordered an examination by a particular expert with translation, but it leaves open how the Court should proceed if the person absolutely refuses examination, resists physically, or if access remains denied. What coercive mechanisms short of criminal process are permissible in modern protective practice remains to be tested.
Interaction with NCAT outcomes. NCAT revoked the management order for apparent best‑interest reasons without fresh medical evidence. The judgment implicitly invites reconsideration of the Tribunal's decision when independent evidence emerges. How subsequent courts ought to treat Tribunal decisions that revoke protection without up-to-date medical input remains a live procedural question.
Confidentiality and publication. The Court ordered reports with address redactions; but the procedures and limits for publication and privacy in protective-list reporting and subsequent hearings remain practical issues that may require further guidance.
Cultural and linguistic accommodations. The judgment recognises the desirability of Serbian language capability in any examiner, but practical issues arise where suitable experts are scarce. The extent to which courts must delay protective steps to secure linguistically appropriate examiners will be a recurring tension between procedural fairness and urgency in protection.
Balance between deference to enduring appointees and independent scrutiny. The judgment treated close associates' affidavits with caution. Future cases will further define the evidentiary thresholds required before sidelining endorsed enduring appointees' decisions in favour of court-imposed protective measures.
This decision provides a clear framework for immediate, proportionate protective interlocutory relief when objective circumstances indicate a vulnerable person may be isolated and subject to influence, while leaving unresolved detailed procedural questions about enforcement, defences, and the interplay with tribunal determinations.
Judgment (5 paragraphs)
[1]
Solicitors:
Plaintiff: Turner Freeman
First to Third Defendants: Novakovic Lawyers
Fourth Defendant: P Dobrich & Co.
Fifth Defendant: (Provisionally) Novakovic Lawyers
File Number(s): 2020/00256392
[2]
INTRODUCTION
Upon an exercise of protective jurisdiction, responsive to a notice of motion filed by the plaintiff on 21 September 2020, on 18 November 2020 I made interlocutory orders (including an order for the appointment of the NSW Trustee as receiver and manager of a fund held in the trust account of the fourth defendant, the solicitor on the record for the fifth defendant) designed to facilitate: (a) an independent medical examination of the fifth defendant, directed towards provision of a report to the Court on her capacity for self-management; and (b) the appointment of a visitor to attend upon her to understand, and to report to the Court on, her current needs and her views about the conduct of her affairs generally.
The motion was heard on the basis of affidavit evidence on both sides of the record (to which evidence no objection was taken by any party) without cross examination of any deponent. The fifth defendant was not presented to the Court for examination.
The orders were made following a hearing on 30 October 2020; an adjournment of the proceedings to permit the parties to make inquiries (thus far unsuccessful) about the availability of an independent medical expert with Serbian language skills, to accommodate the fifth defendant's cultural background; the provision by the NSW Trustee to the Court, and the parties, of a report dated 15 November 2020; and a resumption of the hearing on 18 November 2020, when submissions as to the form of the Court's orders were entertained.
At the time orders were made on 18 November 2020, the parties expressed themselves to be content for the orders to be made without the publication of formal reasons.
On 20 November 2020 the solicitors on the record for the first to third and fifth defendants requested that formal reasons be published. These reasons are published in response to that request.
The defendants did not challenge: (a) the jurisdiction of the Court to make the orders made on 18 November 2020; (b) the standing of the plaintiff to apply for protective orders affecting the fifth defendant; (c) the bona fides of the plaintiff's application, beyond expression of a case that the fifth defendant wishes to have nothing to do with him; or (d) the appropriateness of receivership orders to facilitate an independent review of the fifth defendant's circumstances.
The major point of concern expressed on the defendants' side of the record about the Court's orders appears to be what is reported to the Court to be a reluctance on the part of the fifth defendant to submit to any form of medical examination. A determination that such an examination should be conducted having been made, no substantial controversy attached to the Court's other orders, all lawyers anticipating that they would work with the NSW Trustee in its performance of the limited functions conferred on it by the orders.
Nevertheless, it should be noted, part of the fifth defendant's opposition to a medical examination, as was reported to the Court, ostensibly on her behalf, may be a resistance to any ongoing engagement with the NSW Trustee.
The plaintiff is a retired minister of religion in a church to which the fifth defendant once belonged, if (in her judgement) she does not now belong. The church in question is of a denomination of respectable reputation.
The defendants have adduced affidavit evidence to the effect that the fifth defendant long ago ceased to be a member of that denomination and that she has since adopted another (equally respectable) denominational allegiance.
The plaintiff asserts an interest in the fifth defendant's personal welfare as a pastor and as a friend. He maintains that he has no personal interest in her property, and no expectation of any such interest. Through his counsel, he has informed the Court that: (a) should the fifth defendant be found, upon an independent medical examination, to be capable of managing her own affairs; (b) should she, expressing her own independent views, say that she has no desire to continue personal contact with him; and (c) should it be found that she is safe, secure and being properly cared for in her current accommodation, he will not press for further protective orders affecting her.
The first defendant is an accountant to whom the fifth defendant has ostensibly granted an enduring power of attorney. The second defendant is a solicitor ostensibly appointed by the fifth defendant as an enduring guardian, jointly and severally with her nephew, DS. The third defendant is a tenant of the fifth defendant, a restaurateur. The fourth defendant is the solicitor on the record for the first, second, third and fifth defendants. The second defendant is the solicitor on the record for the fourth defendant.
The fifth defendant's nephew, DS, currently a resident of Norway, is not presently named as a defendant in the proceedings; but he has filed an affidavit in the proceedings (through the office of the fourth defendant), ostensibly on behalf of the first, second, third and fifth defendants. He is actively involved in the proceedings.
The defendants' evidence in opposition to the plaintiff's motion comprises affidavits from each of the first defendant, the third defendant, the wife of the third defendant, the fifth defendant's nephew, DS, and the fifth defendant herself.
The NSW Trustee has familiarity with the estate of the fifth defendant, having managed it for about five years until 19 June 2020 or thereabouts.
Between 9 October 2015 and 19 June 2020 the NSW Trustee managed the estate of the fifth defendant, as the estate of a "protected person" within the meaning of section 38 of the NSW Trustee and Guardian Act 2009 NSW, as the fifth defendant's financial manager, pursuant to an order made by the Guardianship Division of the NSW Civil and Administrative Tribunal ("NCAT") under the Guardianship Act 1987 NSW.
NCAT revoked the management order affecting the fifth defendant on 19 June 2020, not because it was satisfied that she was capable of managing her own affairs, but because it deemed it in her interests to do so: in the hope of reducing the costs of her ongoing care and thereby facilitating her continuing residence in her home of many years at North Bondi.
NCAT had no up-to-date medical evidence, and no evidence from a geriatrician, before it when it nevertheless decided that the fifth defendant remained incapable of managing her own affairs. It had one psychologist's report from 2015 (which it preferred over the other available medical reports), another psychologist's report from 2018 or 2019, and a short 2019 report from a general practitioner.
The fifth defendant is a wealthy, 83 year old, childless widow of Serbian origin, without family in Australia, characterised by NCAT (in terms not disputed by any party to these proceedings) as a person vulnerable to undue influence and exploitation. By all reports, she was in fact financially exploited by a tenant, Y, who died on 14 August 2019; and a member of staff of her professional care service may also have taken advantage of her to secure a personal benefit. On 29 November 2019, at a time when her estate was under management by the NSW Trustee, she executed an enduring power of attorney in favour of the first defendant and an enduring guardianship appointment in favour of DS, and the second defendant jointly and severally. Each of those instruments expressly recorded the fifth defendant's determination to remain living in her North Bondi residence and to preserve it from sale.
On an application to NCAT by DS, filed on 9 December 2019, for revocation of the management order affecting her, the fifth defendant's three enduring appointees (DS, the first defendant and the second defendant) persuaded the Tribunal on 19 June 2020 that it was in her best interests, and a means for her to remain living in her North Bondi home, for them to be allowed to manage her affairs without the intervention of a financial manager.
Paragraph 11 of the Tribunal's reasons for decision (with editorial adaptation) provides a summary statement of the case advanced by DS in the Tribunal proceedings:
"[11] On 9 December 2019 the Tribunal received an application from [DS] to revoke the financial management order made by the Tribunal on 9 October 2015. In his application, [DS] states that the threat of financial exploitation from [Y] no longer exists and that [the fifth defendant] is able to manage her own affairs with the informal assistance of professionals. Further [DS] expresses concern about the management of [the fifth defendant's] estate by the NSW Trustee and Guardian and particularly the risk that her estate will be dissipated and decisions being made about services by [the professional care service retained by the NSW Trustee on behalf of the fifth defendant]."
The applicant before the Tribunal, DS, was represented at the Tribunal's hearing of 19 June 2020 by the fourth defendant and counsel retained by the fourth defendant.
The Tribunal's reasons for decision contain no expression of concern about the plaintiff (who was not in attendance before the Tribunal on 19 June 2020) or any person associated with him. At the hearing before the Tribunal the application of DS (represented by the fourth defendant) was supported by each of the first defendant and the second defendant, all of whom gave evidence by telephone, as did the fifth defendant.
Shortly after the management order was revoked, in mid-August 2020, the fifth defendant was relocated from her North Bondi home to an address (which the defendants have insisted remain confidential) in Liverpool, where she is said to be living alone but with private care arrangements in place.
The fifth defendant's relocation was apparently effected by the first, second and third defendants, without notice to the plaintiff, after an altercation about access to the fifth defendant at her North Bondi home, with a view to withdrawing her from any contact with people said to be associated with the church to which she once belonged, and of which the plaintiff is a retired minister. In addition to relocating the fifth defendant, the first and second defendants at about the same time applied on her behalf for apprehended domestic violence orders said to be necessary to keep church-connected individuals away from her.
No party to these proceedings advances the view that the fifth defendant is capable of managing her own affairs without assistance. In written submissions dated 29 October 2020 prepared by junior counsel for the first, second and third defendants, and (ostensibly) for the fifth defendant, the following submission was made:
"It is accepted that [the fifth defendant] has some degree of cognitive impairment and may not be in a position to make complex financial decisions. However she is assisted by [the first defendant] who is a Chartered Accountant and is able to advise her accordingly."
On one view, the fifth defendant is not only a person who is incapable of managing her own affairs, and vulnerable to undue influence and exploitation, but she is a person who has come under the influence of persons who have taken her under physical control, isolated her from people with whom she formerly associated and (contrary to what was put to NCAT, but very quickly after NCAT's decision) moved her away from her home of many years. The defendants adduced no evidence of an intention to return her to her home, with or without renovations to assist her to remain there. It evidently remains vacant.
Although the fifth defendant's will dated 15 September 2015 (witnessed and ostensibly prepared by the fourth defendant) expressly acknowledged the plaintiff as the person (her priest) to whom she then entrusted her funeral service, the affidavits sworn by and on behalf of the fifth defendant in opposition to the plaintiff's summons (and motion) attribute to the fifth defendant statements which demonise the plaintiff and the church. Those affidavits do not sit comfortably with the will, even allowing for a parting of ways between the fifth defendant and the plaintiff's church.
In my opinion, it is in the interests of the fifth defendant (and, indeed, everybody involved in management of her affairs and with her care) for a determination to be made, with the benefit of an independent medical examination and the report of an independent visitor, as to what her capacity for self-management really is and precisely what her personal circumstances, and views, really are.
[3]
PROCEDURAL CONTEXT
By a summons filed on 3 September 2020 and amended on 21 September 2020, the plaintiff seeks orders, inter alia, to the effect that:
1. the fifth defendant be examined by an independent medical expert for a report to the Court as to her capacity to manage her own affairs.
2. subject to due consideration of such a report:
1. a manager of the estate of the fifth defendant be appointed pursuant to section 41 of the NSW Trustee and Guardian Act 2009 NSW.
2. a committee of the person be appointed to act as a guardian for the fifth defendant.
1. for the purpose of facilitating an independent medical examination of the fifth defendant, and due consideration of any report consequential upon such an examination, the NSW Trustee be appointed as receiver and manager of the estate of the fifth defendant, charged with responsibility for supervising arrangements for her to be medically examined.
2. orders restraining each of the first, second, third and fourth defendants from playing a role in management of the affairs of the fifth defendant or having any contact with her.
At a directions hearing held on 14 September 2020, an order was made that the fourth and fifth defendants by themselves, their servants and agents, be restrained from disbursing, charging or otherwise dealing with the sum of $358,225.32 paid by the NSW Trustee to the fourth defendant (on trust for the fifth defendant) on or about 25 August 2020 without the prior leave of the Court or the written consent of the NSW Trustee.
Through senior counsel, the defendants have foreshadowed that, should an independent medical examination of the fifth defendant establish that she is not capable of managing her own affairs, an application may be made (on the plaintiff's amended summons or by a cross summons yet to be filed) for an order for the appointment of a protected estate manager nominated by them.
All parties to these proceedings are of Serbian heritage. I do not exclude the possibility that tensions between the parties have a cultural dimension, but I put it to one side simply noting that "access" to the fifth defendant is a live, and explosive, issue. Each side of the record has sought court orders to limit contact with the other. On 3 September 2020 I made an order, on the application of the plaintiff, that, subject to further order, the defendants by themselves, their servants and agents be restrained from communicating with, approaching or making contact with, the plaintiff, or deponents of affidavits sworn in support of the plaintiff's summons without the leave of the Court. On their side, as earlier recorded, the defendants have sought in the Local Court Apprehended Domestic Violence Orders against persons associated with the plaintiff.
[4]
INTERLOCUTORY ORDERS THE SUBJECT OF THESE REASONS FOR JUDGMENT
The defendants' affidavits in opposition to the plaintiff's motion emphatically articulate a case to the effect that the fifth defendant is capable of managing her own affairs (with the assistance of her co-defendants and DS); that she is fully able to express her own views (through them); and that (with their active support) she wants to have nothing to do with the plaintiff, members of his church, the NSW Trustee or any independent medical examination.
A problem with this evidence, however, is that, whilever the fifth defendant is kept under close quarters by or with her co-defendants and DS, their affidavits articulating an emphatic case (which does not sit comfortably with the case advanced before NCAT or with the nature of the fifth defendant's long friendship with the plaintiff as her priest) cannot be taken as definitive or relied upon with confidence.
What the fifth defendant's co-defendants and DS have done, in an apparent departure from what DS and the first and second defendants told NCAT they would do, and in taking control of the person and property of the fifth defendant to the total exclusion of the plaintiff, calls for an independent review by persons unconnected with any partisan interest.
By reference to the judgment of the Court of Appeal in Angliss v Urquhart [2001] NSWCA 441, the defendants contended that I should refrain from making an order for a medical examination of the fifth defendant against her wishes (as communicated to the Court by them, albeit with an affidavit said to have been affirmed by her).
That case was very different from this one. In adversarial proceedings the Court of Appeal was required to review orders (made by reference to Part 25 rule 5 of the Supreme Court Rules 1970 NSW, the equivalent of rule 23.4 of the Uniform Civil Procedure Rules 2005 NSW) for the medical examination of an elderly man, on the application of persons advancing their own interests, in circumstances in which there was already medical evidence available and the prospect of a court-ordered examination represented a particular risk to the old man's health.
The current proceedings involve an exercise of protective jurisdiction (of the character described in Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 128 at 258-259) in which the welfare of a vulnerable person is the dominant consideration: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238; cf, NSW Trustee and Guardian Act 2009 NSW, section 39(a).
[5]
Amendments
01 December 2020 - Para 24 first line date changed from 2002 to 2020.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 December 2020
Interlocutory orders made: appointment of the NSW Trustee as receiver and manager limited to funds held in the fourth defendant's trust account (approx. $358,225.32); order for independent medical examination of the fifth defendant by Associate Professor Tuly Rosenfeld with Serbian translator; costs to be paid from the protected estate in the first instance; directions for provision of trust account records and cooperation to enable access; authorisation for the NSW Trustee to appoint an authorised visitor to attend and report; further list for directions on 18 December 2020 (orders as set out in INTERLOCUTORY ORDERS 1–13).
The fifth defendant is said to have a reasonable command of English, but (senior counsel suggests) she might be more comfortable with the Serbian language if she were to be medically examined as to her capacity. The plaintiff and the NSW Trustee are prepared to accommodate this, if it can be accommodated, as would be desirable if it can be done.
The fifth defendant has an estate with an estimated value in excess of $6 million or thereabouts. As recorded by NCAT's reasons for decision of 19 June 2020, the real estate she owns comprises her residence at North Bondi (with an estimated value of $3 million); a commercial property at Bondi (with an estimated value of $2 million), leased and operated as a restaurant by the third defendant; and a property at Surry Hills (with an estimated value of $1.5 million), owned as a tenant in common in equal shares with Y.
On 9 October 2015 NCAT made a financial management order committing management of the fifth defendant's estate to the NSW Trustee. That order had the effect of suspending an enduring power of attorney which the fifth defendant had granted to Y on 16 February 2015.
On 26 July 2016 the Tribunal appointed DK as the fifth defendant's guardian for 12 months to make decisions about her health care and who should have access to her.
On 24 July 2017 the Tribunal reviewed that guardianship order and appointed the Public Guardian for 12 months to make decisions about the fifth defendant's health care, legal services and who should have access to her.
That guardianship order was allowed to lapse when reviewed by the Tribunal on 19 July 2018. At that time the fifth defendant was receiving support services in her home daily through a professional service provider retained by the NSW Trustee.
On 29 November 2019 (at a time when her estate was under financial management) the fifth defendant executed an enduring power of attorney appointment in favour of the first defendant. On the same date, she also executed an enduring guardianship appointment, appointing DS, and the second defendant jointly, as her enduring guardians.
The power of attorney includes an express limitation on the authority of the first defendant in the following terms (with editorial adaptation):
"The Real Property Known as … North Bondi… [the fifth defendant's home] be the last of my Real Properties that is sold".
The guardianship appointment expressly records the following limitation on the authority of the fifth defendant's guardians:
"My wishes are that I stay living in my house as long as possible. I would like to die at home."
The guardianship appointment also records, as a direction to the fifth defendant's guardians, the following:
"Please note comments [extracted in the previous paragraph of this judgment]. I want to continue to receive personal care from a carer".
If the power of attorney and the guardianship appointment are to be taken at face value, there is, at least, a doubt about whether either instrument could be said unequivocally to authorise the fifth defendant's relocation from her home to a distant suburb of Sydney. What the first and second defendants (in particular) appear to have done in effecting her relocation appears to be justified by them on the basis that the decision to relocate was hers, rather than theirs, and it was a decision made voluntarily by her and with full information about factors affecting her welfare.
In revoking the financial management order affecting the fifth defendant on 19 June 2020, the Tribunal accepted assurances from DS and the first and second defendants that it was in the best interests of the fifth defendant that the financial management order be revoked because informal arrangements for her care had been put in place and, despite her considerable wealth, it was desirable to reduce her estate's exposure to the substantial costs incurred in the provision of professional care for her, so that she could continue living in her North Bondi home.
The reasons for decision published by the Tribunal included the following (with editorial adaptation and emphasis added):
"Should the [financial management] order [affecting the fifth defendant] be revoked because [she] has regained the capability to manage her affairs?
…
[63] [The fifth defendant's] evidence to us was consistent with [Dr A's] assessment [of 2015] that her capacity to make complex decisions regarding her finances is limited. She did not really engage us on the issue about the shortfall [in her budget] apart from stating repeatedly that [the first defendant] will handle this for her. [The fifth defendant's] pronounced abdication to [the first defendant] of this most significant aspect of her financial affairs went beyond reasonably relying on professional advice.
[64] Further, we accept that [the fifth defendant] is vulnerable to undue influence and exploitation. …
[65] Taking these matters into consideration, we were not persuaded that the order should be revoked on the basis that [the fifth defendant] had regained capacity to manage her financial affairs. Our decision however turned on whether we should revoke the order on the basis that this is in her best interests.
Should the order be revoked because it is in the best interests of [the fifth defendant]?
[66] Whilst [the fifth defendant] has significant assets, she currently also has significant care costs. NSWTG's evidence is that payments to [the professional care service] total $408,000 in the last twelve months. NSWTG evidence is that the budget for care will be reviewed later this year at the time of budget review. Care costs allowed by NSWTG however have progressively increased over recent years from $236,000 in the year 2017 to 2018 to $408,160 for the current year.
[67] Decisions made regarding care costs will significant [sic] impact potentially on her ability to remain living in her own home and/or potentially in residential care.
[68] All those participating in the hearing were acknowledging of [sic] the significant impact of care costs on [the fifth defendant's] budget and benefit in there being strategies devised to try and address the substantial shortfall currently. NSWTG indicated the shortfall in this year's budget to be $370,372.
[69] The evidence from NSWTG is that whilst they would take into account whether an alternative care regime or service provider are more economically viable, they do not see it as their role to decide upon how much care [the fifth defendant] receives. NSWTG state they are guided by the person under management or from proposals from say their family about this.
[70] Currently, it appears that NSWTG are not proposing to consider an alternative care regime or service provider, notwithstanding [DS's] attempt over an extended period to communicate his concerns and [the fifth defendant's] concerns. [The fifth defendant] expresses concerns to us about costs of care being incurred.
[71] [DS] appeared to us to have a genuine concern both to ensure that [the fifth defendant] receives the care that she needs to live safely in her home, and that she is not disadvantaged by decisions about [the professional care] services to her.
[72] We accept [DS's] evidence and that of [the first defendant] and [the second defendant] about the support they can provide to [the fifth defendant] in the event that the order is revoked. An advantage of this proposal is that it is likely to facilitate better communication than is currently occurring with NSWTG as the manager. This is of benefit given the interplay between decisions about the care regime for [the fifth defendant], choice of service provider and the cost of care being incurred. We accept [the second defendant's] and [the first defendant's] evidence that the proposal will likely facilitate strategies to address the shortfall occurring. We accept that they will likely address the issue more proactively than is occurring.
[73] Significantly the proposal put forward to us accords with [the fifth defendant's] expressed issues as to who she wants to have assisting her in the management of financial affairs. We take this into account.
[74] Whilst [the second defendant] raised concerns about the conduct of litigation by NSWTG on behalf of [the fifth defendant] and management of her rental properties, there was insufficient information before us to establish a basis for his concerns. We did not take the concerns raised as a basis on which to revoke the order.
[75] Given our view that [the fifth defendant] is vulnerable to undue influence and exploitation, we took into account whether it was preferable that NSWTG continue in the role as her financial manager, given their independence and whether this would provide greater protection for [the fifth defendant]. On balance, however, we considered that this was outweighed by the benefit of facilitating better communication and proactive strategies to address the costs of care.
[76] Taking these matters into consideration our decision was that the order should be revoked on the basis that this was in [the fifth defendant's] best interests."
Notably, the Tribunal did not revoke the financial management order affecting her estate on the basis that she is capable of managing her own affairs, and its reasons included a concern to ensure that arrangements were in place to enable her to remain living in her own home.
In recognition of the Tribunal's revocation of the financial management order affecting the fifth defendant, on or about 25 August 2020 the NSW Trustee paid into the trust account of the fourth defendant (a solicitor), on the account of the fifth defendant, the sum of $358,225.32. It is that fund which has been attached by the Court's appointment of the NSW Trustee as a receiver and manager.
The facts of the present case more closely resemble the facts in the seminal judgment of the Full Court in In re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552. There, the Full Court upheld an order for examination of a vulnerable person over the opposition of the persons in whose care and control the vulnerable person was.
Mindful of the judgment of the Full Court, I did not lightly exercise the Court's discretion in favour of arrangements designed to facilitate the provision to the Court (and, through the Court, to the parties) of reports by an independent medical examiner and an authorised visitor. The circumstances in which the order for financial management of the fifth defendant's estate was discharged by NCAT were in themselves unusual (because, despite her continuing incapacity for self-management, a management order was discharged), and the course of events following NCAT's discharge of the management order suggests that closer attention needs to be given to the possibility that both her person and her property are in need of a regime of protective orders. There may be a need for orders designed to ensure that her affairs are managed under the supervision of the Court or subject to the regime for which the NSW Trustee and Guardian Act 2009 provides.
The orders made on 18 November 2020, for which these reasons provide an explanation, were in the following terms:
1. ORDER, subject to further order, that the NSW Trustee be appointed as receiver and manager of the estate of the fifth defendant (limited to that part of the estate presently held in trust by the fourth defendant, on the account of the fifth defendant) with all the powers and discretions that the NSW Trustee would have if management of the fifth defendant's estate were committed to it pursuant to section 41(1)(b) of the NSW Trustee and Guardian Act 2009.
2. NOTE that, as presently advised, the Court proceeds on the basis that (without admissions of any kind by any party) the estate of the fifth defendant, so far as not made the subject of a receivership order, is presently managed by or on behalf of the fifth defendant with the benefit of the enduring power of attorney dated 29 November 2019 granted, or purportedly granted, by the fifth defendant in favour of the first defendant.
3. ORDER, subject to further order, that the fifth defendant be medically examined by Associate Professor Tuly Rosenfeld, with a Serbian translator, pursuant to a retainer to be entered by the NSW Trustee (as receiver and manager of the fifth defendant's protected estate) subject to directions of the Court.
4. ORDER, subject to further order, that the costs of the medical examination of the fifth defendant be paid in the first instance from the protected estate of the fifth defendant under management by the NSW Trustee.
5. ORDER that each defendant co-operate with the NSW Trustee to grant the independent medical expert access to the fifth defendant.
6. ORDER that the independent medical expert provide to the NSW Trustee and the Court (in the first instance, and subject to any further orders of the Court) a written report as to the fifth defendant's capacity for self-management, such report to redact any reference to the fifth defendant's current residential address.
7. NOTE that all parties agree, in principle, that ongoing consideration be given to identification of an independent medical expert appropriately qualified and able to speak the Serbian language as an alternative to the independent medical examination contemplated by these orders to be undertaken by Associate Professor Rosenfeld.
8. ORDER that the fourth defendant provide to the NSW Trustee a trust account statement, including full ledgers, accounting for the sum of $358,225.32 paid to his trust account on or about 25 August 2020 on the account of the fifth defendant by the NSW Trustee.
9. ORDER, subject to further order, that the defendants provide to the NSW Trustee such information as to enable the NSW Trustee to contact the fifth defendant.
10. ORDER that the NSW trustee would be justified in appointing a visitor within the meaning of section 123 of the NSW Trustee and Guardian Act 2009 to attend upon the fifth defendant and to prepare a report so as to allow the NSW Trustee better to understand her current needs together with her views about the conduct of her affairs generally, including matters the subject of the NSW Trustee's Report to Court dated 15 November 2020.
11. RESERVE to all parties and the NSW Trustee (and any other interested person) liberty to apply to the Protective List Judge generally.
12. ORDER that the proceedings be listed before the Protective List Judge on 18 December 2020 at 9.00am for further consideration, or directions, as the nature of the case may require.
13. ORDER that these orders be entered forthwith.
Particular care needs to be taken to ascertain the nature and extent of any (in)capacity the fifth defendant may have for self-management, and self-expression, because she evidently needs a high level of personal care; and a decision may well have to be made, sooner or later, to sell some of her real estate in order to fund the care she needs. There is a potentially complex inter-relationship between her functional capacity, management of her person (including guardianship and access) and management of her estate.
The fifth defendant's denial of any incapacity for self-management, and her expressed reluctance to submit to an independent medical examination, are consistent with NCAT's refusal to discharge the financial management order affecting her on the ground of a present capacity for self-management. It is not unusual for a person in need of protective management to express strong opposition to any form of management regime. It is sometimes an indicator of incapacity. Whether it is so in this case remains an open question.
The opposition of the fifth defendant's co-defendants, and her nephew, to an independent medical examination of the fifth defendant invites doubt about their objectivity. If the fifth defendant is truly able to manage her own affairs, and to express her own independent views, and if the arrangements currently in place for her care are truly satisfactory, a way to demonstrate that is to facilitate her examination by an independent medical expert and to facilitate the work of an authorised visitor. Keeping her in close quarters, under the control of a small group of individuals who resist an independent review of her circumstances, carries a risk to her in management of her affairs that her welfare is not (as it should be) the paramount consideration.
The orders made on 18 November 2020 were designed to facilitate a review of her personal circumstances, allowing an independent assessment to be made of her capacity, her views, and her needs going forward. As illustrated by the limitation of the Court's receivership order to a part only of her estate, they were designed to do what appears to be necessary, but no more than presently deemed necessary, to protect her interests and her welfare.