Harris v Knight

Judgment 1HIS HONOUR: Having regard to the legal status of the Defendant as a protected person, at the outset, I make an order prohibiting the publication, or disclosure of the name of the parties, or any details from within the court file, or from the evidence in the proceedings, that either identifies, or tends to identify him. I have assigned, to the protected person, the initials "PJB": s 72 of the Civil Procedure Act 2005. 2By Notice of Motion filed 26 November 2010, DJB, as guardian of PJB, seeks various documents from Perpetual Trustee Company Limited ("Perpetual"), those documents "relating to the management of the financial affairs of PJB". 3By an amended Notice of Motion (filed pursuant to leave granted) on 17 January 2011, the relief sought by DJB against Perpetual is said to be pursuant to s 64 of the NSW Trustee and Guardian Act 2009 . 4PJB was severely injured in a motor vehicle crash in 1986. 5In 1987, an order was made appointing the Protective Commissioner the financial manager of PJB's estate. 6On 23 August 2000, the Protective Commissioner was removed as the financial manager and Perpetual was appointed, without security, under the order and direction of the Court, in its stead. At the same time, the Court made orders, it gave to Perpetual, directions and authorisations which included: "(3) ... THE COURT DIRECTS AND AUTHORISES Perpetual Trustee Company Limited - ... (i) to file accounts annually in accordance with the requirements of Supreme Court Rules Part 76, Rule 32 and to pay the fees for the filing, examining and passing of such accounts in accordance with the Protected Estates Act 1983 and the Protected Estate Regulation 1995; (j) to employ a solicitor when appropriate to carry out any necessary legal work in connection with the management of PJB and to pay the reasonable costs and disbursements of that solicitor; ... (l) to pay to [PJB's mother] the sum of $700-00 per week being $237-00 for reimbursement of care with the balance of $463-00 being reimbursement for expenses incurred on behalf of PJB; (m) to reimburse [PJB's mother] for - (i) all reasonable expenses paid for her exclusively for and on behalf of PJB; (ii) one half of the reasonable household expenses incurred by [PJB's mother], in the event that such expenses exceeded $463-00 per week; THE COURT ORDERS that the Protective Commissioner of New South Wales not exercise any of the powers, functions or jurisdiction of the Court conferred on him by S.30(1)(a) and (b) of the Protected Estates Act 1983 except in respect of passing accounts in accordance with the Supreme Court Rules Part 76, Rule 32, in respect of the estate of PJB without the leave of the Court." 7The affidavit of Shamal Dass, on behalf of Perpetual, which was not the subject of challenge, states that "annual accounts have been filed with the Office of the Protective Commissioner NSW (OPC) now the Office of NSW Trustee & Guardian (NSWT&G). The accounts have been approved annually by OPC and NSW T & G respectively". 8That affidavit went on to disclose that "[A]ll invoices submitted to [Perpetual] for payment are referred by the [Private Client Adviser] to the trust manager for the account who then considers the technical aspect of payment, that is whether the payment is appropriate and whether it may be paid from the income or capital account of the fund". 9Mr Dass also confirmed that, from 2000 until her death, a transaction summary of PJB's accounts was provided, monthly, to PJB's mother 10PJB's mother died on 14 May 2007. Without a formal order having been made, she had acted, for many years, as PJB's guardian. 11On 17 November 2008, JHB, as executor named therein, was granted probate of the Will of PJB's mother. 12On 21 June 2007, the Guardianship Tribunal made a limited Guardianship Order appointing, as PJB's guardian, his son, DJB. 13On 18 June 2008, the Guardianship Tribunal confirmed, and varied, the orders appointing DJB as PJB's guardian. 14The orders made by the Guardianship Tribunal included: "3. This is an order for continuing guardianship for a period of 5 years from the date of this order or until the Tribunal varies, suspends or revokes the order at an earlier date on request or at its own initiative. 4. This order is an order for limited guardianship giving the guardian custody of Mr PJB to the extent necessary to carry out the functions referred to below. 5. The guardian shall have the following functions in relation to Mr PJB: (a) Accommodation To determine where Mr PJB may reside. (b) Health Care To determine what health care and major minor medical and dental treatment Mr PJB may receive. (c) Medical and Dental Consent Where Mr PJB is not capable of giving a valid consent to his own treatment, to make substitute decisions on his behalf about medical or dental treatment proposed for him by others under the provisions of Part 5 of the Guardianship Act. (d) Services To make decisions on his behalf concerning major services to which he should have access." 15On 29 July 2010, the Supreme Court made orders (by consent) in Family Provision Act 1982 proceedings commenced on behalf of PJB, in which a family provision order had been sought out of the estate of his mother. The effect of those orders was to reduce the share of the mother's estate received by JHB and, accordingly, to increase the share passing to PJB. The orders made resulted in PJB's mother's Will being altered : "3. Subject to clause 4 hereof I give my whole estate to my son PJB. 4. (a) I give JHB a legacy of $400,000; (b) I give to DJB a legacy of $30,000; (c) I charge the property at ... Castlecrag with the payment of the legacy in (a) and (b) herein. ... 7. Note the agreement by the parties the payment in 6 when effected will discharge all liability howsoever arising of the Plaintiff and the Deceased and her estate to the Defendant in his personal and representative capacity including any liability for costs (howsoever arising), wages, out of pockets or other expenses or disbursements." 16In the proceedings for the family provision order, there was filed on behalf of PJB, and relied upon, a document entitled "Schedule of Contributions to Castlecrag by [PJB]". This document was prepared by Perpetual for the purpose of demonstrating that PJB had contributed substantial sums to the building up of his mother's estate. Included in the Schedule were most of the expenses the Applicant wishes to investigate further. 17Since the amended Notice of Motion was filed, a Portfolio Statement for the year ended 30 June 2007 was ordered to be, and has been, produced to DJB. However, he seeks further documents, the production of which is resisted by Perpetual. 18The documents sought now are: "(a) Portfolio statements from 1 July 2002 to 30 June 2006; (b) All quotations, invoices, supporting documents, file notes and any other documents which Perpetual relied upon in making the payments specified in Annexure E at page 47-49 of Exhibit "PDK1" to the Affidavit of Peter David Kennedy sworn 26 November 2010; (c) All quotations, invoices, supporting documents, file notes and any other documents which Perpetual relied upon in making the payment of the following reimbursements to: (i) PJB's mother, on behalf of personal and household expenses paid on behalf PJB made on 23 December 2002 in the sum of $8,426.85; (ii) PJB's mother, (being) reimbursement cost of sundry household and personal expenses paid on behalf of PJB made on 30 September 2003 in the sum of $10,682.66; (iii) PJB's mother (as a) remittance, being part reimbursement cost of sundry household and personal expenses paid on behalf of PJB for the months of April to June 2004 made on 27 July 2004 in the sum of $20,000; and (iv) PJB's mother (as a) remittance, being reimbursement of balance of sundry household and personal expenses paid on behalf of PJB for the months of April to June 2004 made on 4 August 2004 in the sum of $36,292." 19The question to be determined in this application is whether Perpetual, as manager of the estate of PJB, should be required to produce, to DJB, those documents as they relate to payments made by Perpetual, on behalf of PJB. 20It is submitted that further investigation is required by DJB either because of the nature of the documents, or the quantum of the payments, or the identity of the persons to whom payments were made, and/or because of the circumstances of the payment.