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Cases Cited: CJ v AKJ [2015] NSWSC 498
Fardous v Dan [2013] NSWSC 581
Small v Phillips (No 3) [2020] NSWCA 24

Category: Principal judgment

Parties: Soraya Fardous (Plaintiff)
Australian Executor Trustees Ltd (Defendant)

Representation: Counsel:
W Carney (Plaintiff)
N McColl (solicitor) (Defendant)
Solicitors:
Kheir Lawyers (Plaintiff)
Australian Executor Trustees Ltd (Defendant)

File Number(s): 2025/00493440

JUDGMENT

1. By Summons filed 19 December 2025, the Plaintiff, Ms Soraya Fardous, seeks that certain financial orders made in May 2013 (the 2013 orders) be set aside, a declaration that the Court is satisfied she is capable of managing her own affairs and further orders by which her estate would no longer be managed by the Defendant, Australian Executor Trustees Ltd, and the Defendant transfer to her the property comprising her estate.

2. The history of this matter is most unfortunate. Justice Beech-Jones, in Fardous v Dan [2013] NSWSC 581 (the 2013 Judgment), approved a proposed settlement and made the orders Ms Fardous seeks to have set aside. The following background is largely drawn from his Honour’s judgment.

3. In April 2004, aged approximately 24, Ms Fardous underwent surgery for the removal of a dermoid cyst in her brain. The surgery was unsuccessful and a different surgeon eventually removed the cyst in March 2005.

4. In 2008, Ms Fardous, by her tutor, commenced proceedings against the surgeon who performed the April 2004 surgery. The basis of the claim was that during the April 2004 operation, the surgeon injured Ms Fardous’ pituitary stalk, frontal lobe and basal ganglia. Those injuries were said to have had significant effects on her endocrinological function as well as, significantly, emotional and cognitive impairment which rendered Ms Fardous unable to work and in need of significant personal care.

5. On 16 May 2013, Beech-Jones J approved a proposed settlement in the negligence proceedings. Pursuant to that settlement, judgment was entered for Ms Fardous in the sum of $4 million. The sum was paid to her trustee, the Defendant in these proceedings. In the 2013 Judgment, Beech-Jones J observed at [2] that Ms Fardous was incapable of managing her affairs.

6. These proceedings arise out of Ms Fardous’ assertion that she is now capable of managing her own affairs. Because of this, she says, there is no need for the Defendant trustee to control and manage her estate. The Defendant has filed a submitting appearance and does not oppose the orders Ms Fardous seeks.

Evidence

7. In addition to her written submissions, at the hearing, Ms Fardous read the following affidavits in support of this application:

8. the affidavit of Ms Fardous affirmed 17 December 2025, containing seven annexures;

9. the first affidavit of Mr Gassan Fardous, Ms Fardous’ father, affirmed 25 March 2026;

10. the affidavit of Dr Ahmed Elarif, Ms Fardous’ general practitioner, affirmed 7 April 2026; and

11. the affidavit of Dr Sara Lucas, clinical neuropsychologist, dated 15 April 2026, containing three annexures.

12. At the hearing, I raised several concerns about Ms Fardous’ evidence and ordered that further evidence and submissions be supplied. Shortly thereafter, in accordance with my orders, Ms Fardous provided short submissions and the following material:

13. the affidavit of Mr James Gerrard, Ms Fardous’ financial adviser, dated 22 July 2026; and

14. the second affidavit of Mr Fardous, affirmed 28 July 2026.

The application

9. In her affidavit, Ms Fardous states that she has “worked hard” to overcome the cognitive impairments to which Beech-Jones J adverted in the 2013 Judgment. That much is borne out by the evidence before me.

10. As to Ms Fardous’ domestic circumstances, she says that she has lived with only her son for the last ten years. Over the last two years, she has worked with her doctors and family on living independently and taking care of herself. She now undertakes all household chores and domestic tasks.

11. Ms Fardous’ father was given power of attorney “some years” before 2009. His appointment was in response to her spending money on “stupid things” and losing money. I digress to note that, although the status of that power of attorney was unclear at the hearing, Mr Fardous, in his 28 July affidavit, deposed that the power of attorney was no longer valid.

12. In addition to providing academic and extracurricular support to her son, Ms Fardous provides physical and emotional support to her sister, who has cerebral palsy. Ms Fardous has travelled extensively. On her most recent trip, she prepared the travel itinerary and cared for her father, who has been diagnosed with cancer.

13. Ms Fardous has undertaken a number of volunteer roles, for her son’s “water scouts” group and a local community organisation. She also enrolled in a Diploma of Counselling at TAFE, though she has paused those studies to care for her father.

14. Ms Fardous worked full-time as a pharmacy assistant from 2013 until 2021, when she sustained a back injury for which she receives WorkCover payments. She has saved a not insubstantial amount of money, though there is some conflict in the evidence as to whether that is from her salary, as Ms Fardous deposes, or from her weekly benefits, as contained in Dr Lucas’ 2024 report (discussed below).

15. As to her current physical condition, Ms Fardous states that she still experiences headaches and muscle soreness. Although she used to manage these with medication, infrequent reflexology appointments are now sufficient. Regarding her mental condition, Ms Fardous accepts that she still struggles with short-term memory loss; however, she manages this with a diary, calendar and mobile phone. Ms Fardous says she has significantly improved her memory, such that she now independently travels to her medical and legal appointments and manages her own medication.

Dr Elarif’s affidavit

16. Dr Elarif, in his affidavit, opines that Ms Fardous is capable of managing her own affairs. He continues that Ms Fardous both attends medical appointments and organises her medication without assistance, and that she recognises when an activity is beyond her capacity and asks for assistance. Dr Elarif regards Ms Fardous as able to seek and act upon independent financial and investment advice.

17. Dr Elarif concludes that Ms Fardous has the same capacity and ability to manage her estate as the average person in her age group and that she is at no greater risk of loss or dissipation of her assets than the average person of her age.

Dr Lucas’ reports

18. Dr Sara Lucas, clinical neuropsychologist, provided, as Annexure “C” of her affidavit, a report dated 7 November 2024. Comparing that report to one prepared by Dr Lucas in 2009 in support of Ms Fardous’ negligence claim is enlightening.

19. The 2009 report was based on two in-person assessments, the first in 2006 and the second in 2009.

20. In the 2009 report, Dr Lucas described Ms Fardous’ presentation as “very chaotic and tangential in her behaviour and thinking”. Ms Fardous was highly distractible and had “immense trouble” concentrating on tasks, becoming frustrated and anxious when trying to complete them. Dr Lucas noted that, although Ms Fardous used a diary, such use was “haphazard” and Ms Fardous struggled to find or understand her own notes.

21. The intellectual and emotional impairments Ms Fardous reported to Dr Lucas in 2009 were serious. Her memory problems led to her frequently missing appointments. She had trouble keeping track of the date and could not cook because she would forget about items left on the stove. Ms Fardous was heavily reliant on her mother reminding her about simple daily tasks.

22. In addition to the above, Ms Fardous reported low motivation and depression. She clearly struggled with the significant changes in her emotional landscape. She had become moody and angry, especially with her son, and she felt she was no longer a good mother.

23. In the 2009 report, Dr Lucas concluded that Ms Fardous’ cognitive impairments were likely permanent. She qualified this by noting it was possible Ms Fardous’ psychological state would improve over time, but maintained that her “distress levels, anger outbursts and mood swings are likely to remain a problem permanently” as they were caused by both “organic and permanent psychological factors.” She did, however, add that Ms Fardous’ cognition might improve “mildly”.

24. In preparing the 2024 report, Dr Lucas saw Ms Fardous twice: first via audiovisual link (AVL) for an interview and then, six days later, in person for testing. The content and conclusions of the 2024 report are far removed from those in the 2009 report.

25. Dr Lucas describes Ms Fardous’ presentation via AVL as “bright and bubbly and quite talkative”. Dr Lucas continued that this was not dissimilar to her presentation when preparing material for the negligence proceedings, but she was now less distressed and chaotic. Ms Fardous arrived early for the in-person testing and was neatly presented. She comprehended test instructions without difficulty and worked with good speed and focus. Although Ms Fardous’ attention waned on some tasks, she did her best to “monitor and check her work”. She did not show much sign of fatigue after two-and-a-half hours of testing.

26. In the 2009 report, Dr Lucas’ tests indicated that Ms Fardous’ premorbid cognitive function as “average”, while her post-surgery function “showed severe an quite global impairment of cognitive function. Dr Lucas in the 2024 report noted significant improvements. She remarked that most aspects of Ms Fardous’ executive functions were “reasonable aside from difficulty with higher level planning/organisation and mental flexibility.”

27. As to whether Ms Fardous is capable of managing her own affairs, Dr Lucas noted that Ms Fardous has a good concept of incoming and outgoing amounts and shows reasoning in her decision to move to a more appropriate home given her back injury. She also appears, on Dr Lucas’ assessment, to have an understanding of how she would manage moving to a new home financially. Dr Lucas continued, when asked whether Ms Fardous has the capacity and ability to manage her estate, by saying that while Ms Fardous’ “residual cognitive deficits” may influence the efficiency with which she would make financial decisions, she mostly appears to have good strategies in place and shows awareness of when she should seek further information or assistance. Dr Lucas concluded that Ms Fardous has capacity to manage her estate with the supports presently in place.

28. Regarding whether Ms Fardous is competent to seek and act upon independent financial and investment advice in relation to her estate, Dr Lucas says that, although Ms Fardous does not have full insight into her cognitive difficulties, she is aware of some ongoing issues and applies compensatory strategies appropriately. Ultimately, Dr Lucas opines that Ms Fardous is competent to seek and act upon such advice.

29. The 2024 report ends with appropriate caution. Dr Lucas notes that in preparing that report, she has largely relied upon information provided by Ms Fardous and her solicitors (presumably on Ms Fardous’ instructions). She recommends a feedback session to assist Ms Fardous in understanding the nature and extent of her cognitive deficits, but otherwise describes “many aspects” of her cognitive function as reasonable, with memory and verbal reasoning assessed as “functional”.

Ms Fardous’ financial future

30. Should the Court make the orders Ms Fardous seeks, she intends to retain the services of Mr James Gerrard, a financial adviser. Ms Fardous feels that Mr Gerrard has always looked after her interests and advised her on potential investments. They have an open working relationship characterised by collaborative discussions about potential investments. Ms Fardous intends to purchase a “forever home” and otherwise simply maintain her lifestyle and Mr Gerrard will advise her to that end.

Property

31. This brings me to a theme which recurred throughout the evidence: Ms Fardous’ interest in property. Ms Fardous owns, and until January 2025 resided in, a unit in Bankstown. In January 2025, she moved into a duplex in Revesby where she now lives while out leasing the Bankstown unit . Ms Fardous receives and manages the rental payments herself. In addition to those properties, Ms Fardous in 2017 purchased a property in Illawong and, despite encountering barriers to further renovating or developing the property, was able to subdivide and renovate it being selling the land in 2022 for a profit.

32. While property is clearly of significant interest to Ms Fardous, it has been a source of frustration in her dealings with the Defendant. This application, and the effort Ms Fardous has gone to in overcoming her cognitive impairments, stems from those frustrations.

33. Ms Fardous states that the Defendant has “continually resisted [her] intentions to purchase a forever home” in which she can live. She characterises the budget the Defendant has allocated to the purchase of a “forever home” as “extremely limited” and says that even that amount would come with further restrictions. She feels that the allocated amount neither reflects the Sydney real estate market nor recognises her successful property investments.

34. In October 2024, Ms Fardous, assisted by Mr Gerrard, lodged a complaint with the Defendant. That complaint, together with the Defendant’s response, is contained in Annexure “G” to Ms Fardous’ affidavit. The complaint concerns annual management fees which the Defendant has charged Ms Fardous since 2013. The 2013 Judgment and accompanying orders, the complaint claimed, never appointed the Defendant to a “formal management or guardianship role”. Therefore, in controlling the money granted to Ms Fardous and charging her fees, the Defendant “has unilaterally appointed itself as [Ms Fardous’] financial manager” without authorisation.

35. In November 2024, the Defendant responded. It acknowledged that the 2013 orders were “not standard form”, but it had no doubt that it had been appointed to a trustee role for Ms Fardous’ judgment sum. In that capacity, the Defendant maintained, it was entitled to charge its trustee management fees, which were disclosed to the Court before the 2013 orders. At the hearing before me, Counsel for Ms Fardous did not seek to press her 2024 complaints. It was further conceded that the Defendant had answered Ms Fardous’ queries “quite adequately”.

Principles

36. At the hearing, I raised my concern that the Summons, as drafted, gave no indication of the power by which the Court would make the orders sought. Counsel for Ms Fardous, in supplementary written submissions, argued that the orders would be made pursuant to s 86 of the NSW Trustee and Guardian Act 2009 (NSW) (the TGA). That provision reads as follows:

86 Revocation of orders by Supreme Court

(1) The Supreme Court, on application by a protected person and if the Court is satisfied that the protected person is capable of managing his or her affairs, may—

(a) revoke any declaration made that the person is incapable of managing his or her affairs, and

(b) revoke the order that the estate of the person be subject to management under this Act, and

(c) make any orders that appear to it to be necessary to give effect to the revocation of the order, including the release of the estate of the person from the control of the Court or the manager and the discharge of any manager.

(2) For the purposes of this section—

(a) evidence of a person's capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and

(b) the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with any such examination, and

(c) the Court may otherwise inform itself as to the person's capability to manage his or her own affairs as it thinks fit.

37. There is some slight awkwardness in that submission. Justice Beech-Jones did not declare Ms Fardous to be incapable of managing her own affairs (though, as I have noted above, his Honour did in his reasons observe that to be the case). There is thus no formal declaration to be revoked pursuant to s 86(1)(a).

38. In the same way, there was no formal order that Ms Fardous’ estate be subject to management. His Honour simply ordered, relevantly, that the judgment monies were to be paid to the Defendant and that the Defendant was to invest those monies “in accordance with statute”. Ms Fardous submits that those orders created a trust pursuant to the TGA, as no other statute gives guidance on how trust monies should be invested. While I am not certain that no other statute gives such guidance, I accept the effect of that submission. The orders, as well as the context of the case in which they were made, clearly indicate that Ms Fardous’ estate was to be managed by the Defendant in accordance with the TGA.

39. I am satisfied that, although it is not expressly drafted as such, this is an application under s 86 of the TGA.

40. Section 86 is within Chapter 4 of the TGA. The principles applicable to that Chapter are contained in s 39 of the TGA, which provides as follows:

39 General principles applicable to Chapter

It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles—

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation.

41. The Court should also be guided by the principles underlying the Court’s parens patriae jurisdiction: CJ v AK**J [2015] NSWSC 498 at [17]–[39] (Lindsay J). As Lindsay J stated in that passage, the general law prescribes no fixed standard of capacity. Rather, the required standard is flexible, and will be relative to the complexity of the person’s affairs, both financial and otherwise. His Honour at [38] emphasised the following:

“(a) a focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation; and

(b) in considering whether a person is “able” in this sense, attention may be given to: (i) past and present experience as a predictor of the future course of events; (ii) support systems available to the person; and (iii) the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests.”

Consideration

42. I wish to first observe that Ms Fardous’ determination, in recent years, to become self-reliant is laudable. It is clear to me that her efforts have resulted in substantial, perhaps even remarkable, improvements in her capacity. In the years after the 2013 settlement, Ms Fardous managed her financial affairs with admirable diligence.

43. Ms Fardous has, for several years, managed her own daily living. Since the 2013 settlement, she has attended to the needs of her son. Furthermore, she seems to have made her own enquiries and reached her own appropriate conclusions concerning local government restrictions on her Illawong property before eventually selling it at a profit. Each of these matters suggests to me that Ms Fardous is capable of managing her own affairs.

44. There is little in the evidence to suggest that Ms Fardous will be profligate. It was concern over her profligacy that led to Mr Fardous gaining her power of attorney; however, her ability to manage her own finances has evidently improved.

45. I have had regard to the medical evidence, though that evidence is not determinative. As I have already said, Dr Elarif is unequivocal in his conclusion that Ms Fardous is capable of managing her own affairs. Dr Lucas reached a similar conclusion with two qualifications. First, that Ms Fardous was able to manage her own affairs “[w]ith the assistance of experts that she knows she requires to advise her” and, secondly, that this was based largely on information provided by Ms Fardous and her solicitors. Despite those qualifications, I am satisfied that the medical evidence supports Ms Fardous’ application.

46. I have had regard to Ms Fardous’ father’s evidence. He is clearly proud of her and pleased with Ms Fardous' efforts to improve her physical and mental wellbeing. He strongly supports her application.

47. At the hearing, I raised my concern about Mr Gerrard’s role in Ms Fardous’ application. Pursuant to s 39(a) of the TGA, the welfare and interests of Ms Fardous are the paramount consideration. Having regard to s 39(g) of the TGA, it is essential in the circumstances that I satisfy myself that Ms Fardous has not been inveigled by a financial adviser who seeks only to further their own interests. To be clear, I do not suggest that Mr Gerrard has done any such thing. Nevertheless, at the close of the hearing, I made an order that Mr Gerrard prepare an affidavit setting out the history and nature of his dealings with Ms Fardous.

48. Mr Gerrard’s affidavit discloses that he has known Ms Fardous since 2013. He was first approached by her family, who hoped that he would provide her with financial advice. Since then, he has taken on a long-term advisory role and is clearly an important figure in her life. Mr Gerrard deposes that his fees are asset-based, but that he will only calculate those fees by reference to Ms Fardous’ remaining assets after she purchases her “forever home”.

49. Nothing before me indicates a clear risk of neglect, abuse or exploitation. I am satisfied that this application was prompted by Ms Fardous’ own plans, hopes and aspirations, not those of Mr Gerrard or any other person.

50. The principles contained in s 39 of the TGA, especially the objectives of minimally restricting Ms Fardous’ decisions and freedom of action, her own views on the management of her affairs, and the desirability of encouraging Ms Fardous to be self-reliant, strongly militate in favour of making the orders sought

51. In light of the above, I am satisfied that Ms Fardous is capable of managing her own affairs.

Costs

52. The Court’s discretion to order costs is contained in s 98 of the Civil Procedure Act 2005 (NSW). Ordinarily, costs are to follow the event unless it appears to the Court that some other order should be made: r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW). However, as I have said at [41] above, these proceedings are in the Court’s parens patriae jurisdiction. Such proceedings are not adversarial. Rather, they have a strong public interest element, meaning that the Court, when exercising that jurisdiction, is less likely to order costs to follow the event. It should instead consider the proper order for costs in all the circumstances: Small v Phillips (No 3) [2020] NSWCA 24 at [2] (Brereton and McCallum JJA, Emmett AJA).

53. In the circumstances, I will order that both Ms Fardous’ costs and those of the Defendant be paid out of Ms Fardous’ estate.

Orders

54. I make the following orders:

55. The Court declares, pursuant to s 86(1)(a) of the NSW Trustee and Guardian Act 2009 (NSW) (the TGA), that the Plaintiff is now a person who is capable of managing her affairs.

56. Pursuant to s 86 of the TGA, order that the Defendant:

(a) take such steps as may be necessary or expedient to transfer the management of the Plaintiff’s estate from itself to the Plaintiff within 28 days; and (b) be discharged as trustee of the Plaintiff’s estate.

3. The costs of the Plaintiff and the Defendant are to be paid out of the Plaintiff’s estate on an indemnity basis.
4. The Summons is otherwise dismissed.

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