Holt v The Protective Commissioner

Supreme Court of NSW|2011-05-20

The Application 1HIS HONOUR: Having regard to the legal status of the Defendant, to whom I have assigned the initials "SAM": s 72 of the Civil Procedure Act 2005, 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, her. 2This is an application, by notice of motion, filed on 14 March 2011, by the brother ("AMAM") of SAM seeking the removal of the Plaintiff ("MWM") as manager of the estate of SAM, and for the appointment of himself in MWM's place. An order for costs is also sought. The NSW Trustee and Guardian ("the NSW Trustee"), has been served with the notice of motion. 3On 1 July 2009, the NSW Trustee and Guardian Act 2009 commenced. The Public Trustee Act 1913 (NSW), was repealed and the office of the NSW Trustee was created to carry out the functions of the Public Trustee. The Protected Estates Act 1983 (NSW) was also repealed, but was substantially re-enacted in the NSW Trustee and Guardian Act . 4MWM who now lives in Syria, and has done so since about August 2008, does not appear in response to the notice of motion. The evidence reveals that he has no intention of returning to New South Wales. The evidence also reveals that he does not oppose AMAM's application and, in fact, consents to the appointment of AMAM in his place. 5A copy of the notice of motion and the principal affidavits relied upon were served upon SAM on 29 March 2011. The solicitor acting for AMAM read the documents to her and they were translated for her by AMAM.

The Principles 24There can be no doubt that the court has the power to remove the MWM as manager of SAM's estate and to appoint another person in his place: s 41(2) and s 64(1) of the NSW Trustee and Guardian Act ; MB v Protective Commissioner [2000] NSWSC 717; 50 NSWLR 24; Application of J & K [2009] NSWSC 1453 at [4].) 25Although not regarded as rules, or even guidelines, the framework within which the court is to approach a matter such as this is: (a) An application to remove the financial manager is one that invites the exercise of a judicial discretion. That discretion is conferred on the court in the exercise of a special jurisdiction. It derives from legislation. It must, therefore, be exercised keeping in mind the purposes of that legislation. The general principles, set out in s 39 of the NSW Trustee and Guardian Act should be remembered. Particularly relevant to this case are the matters in s 39(a) and (e). (b) The abiding rule in the exercise of powers under the Act is the achievement of best interests of the managed person; the court's overriding duty is to see that the managed person's estate is so managed as to serve the protected person's best interests. (c) An application for the removal of a person validly appointed as a manager, will not invoke the same discretion as the initial appointment of such a person, or another, as manager. As in any application, it will normally be necessary, at least forensically, for the party seeking a change in the status quo to show some reason why the court should so order. (d) It is not necessary for the applicant to establish that the relevant respondent has misconducted herself, or himself, or that she, or he, has not acted competently in the management of the estate. However, where it is shown that a person appointed as manager is incompetent or has acted in a relevant way improperly, or unlawfully, the Court may terminate the appointment and appoint another manager. (e) Ordinarily, a person who would face a conflict of interest and duty would not be appointed a manager of a managed person's estate. However, such a conflict does not, necessarily, present an absolute bar to appointment as a manager, for otherwise, this would exclude from consideration a range of family members who are, in every other way, appropriate. 26I accept that there are inherent advantages in SAM's estate being continued to be managed by a family member, with appropriate advice, rather than by a statutory body, particularly since the estate is of modest size, if there is no conflict of interest and duty, and where a relationship of love and affection between the applicant and the managed person is established. 27I remind myself, also, that when exercising the discretion, the Court bears in mind that, ordinarily, members of the community consider that an outside manager is a measure of last resort: see Re M (1988) 2 VAR 213; Re R [2000] NSWSC 886 at [32]. 28In Re L [2000] NSWSC 721, at [7] and [12], Young J (as his Honour then was) recognised that a responsible family member will often be best placed to manage an incapable person's affairs provided there are minimal conflicts of interest or, if there are conflicts of interest, that they are properly dealt with. 29In Holt v The Protective Commissioner (1993) 31 NSWLR 227, Kirby P (as his Honour then was), with whom Sheller JA and Windeyer AJA agreed, identified the advantages to a protected person of having a family member appointed as manager of his estate as including: "(b) to the appointment of a family member, the following advantages: ... (ii) the capacity of the protected person, if disabled, to interact with his or her manager so that, so far as possible, within the disability which has led to the appointment, such person may remain in charge of, or at least able to influence, the broad directions of the management of the estate; (iii) the ingredient of love and affection and unquestioning devotion to the protected person which an appropriate family member can add to the task of management. Whilst the office of manager is, by its definition, concerned with proprietary and financial matters and involves the prudent control of the property and like interests of the protected person, in the nature of things the manager of the estate of a protected person is more likely than a general trustee or receiver to become involved in decisions which affect the protected person's quality of life. A lifetime knowledge of the person and a devotion to his or her interest may contribute to that quality. It may more readily be secured by the appointment as manager of a family member with the requisite knowledge and motivation." 30In Holt , the Court of Appeal rejected the principle that the person applying for a change of manager bears the onus of demonstrating a "clear and convincing" case that the form of management proposed would better advance the interests of the protected person than the existing arrangements. In relation to onus of proof, as stated above, the Court put it no higher than saying that, generally, a person who seeks the removal of a manager needs to show "some reason" why the Court should so order (at 241). 31The "reason" advanced in this case is the delinquency of MWM in lodging the accounts, and more importantly, that he no longer lives within the jurisdiction. 32Before making any orders, I must be satisfied that to make such orders are in the best interests of SAM. If I come to that view, I am "duty bound" to revoke the order previously made and make another order. 33This requires me to consider whether AMAM is a "suitable person" to be appointed as the financial manager. There is no indication given in the Act to what factors enable me to determine whether a person is "a suitable person". 34It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend upon its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests. 35I am satisfied, in this case, that there is an available basis for a change of the financial manager of SAM. I am also satisfied that AMAM is a suitable person who ought to be appointed. The speed with which he adopted the suggestion, and complied with the court's request, to file the accounts, together with the NSW Trustee's acceptance of him being ready, willing and able to comply with the obligations of a financial manager, demonstrate that he has the best interests of SAM in mind. 36I am also satisfied that a relationship of love and attention between SAM and AMAM has been established. 37The lack of opposition by any other person, or the NSW Trustee, fortifies this conclusion.

Conclusion 38I order: (a) The Plaintiff be discharged from the office of manager of the Defendant's estate. (b) Subject to the giving of security if required by, and to, the satisfaction of the NSW Trustee and Guardian, AMAM be appointed manager of the Defendant's estate to act in relation to her estate in accordance with the order and direction of the Court. (c) The costs of the Applicant of and incidental to the Applicant's notice of motion filed 14 March 2010 be paid from the Defendant's estate. (d) A copy of the orders should be served, by post, or by e-mail, on MWM, together with a copy of this Judgment, within 21 days of the delivery of reasons from Judgment.

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: 07 June 2011

Public Trustee Act 1913(NSW)

Protected Estates Act 1983(NSW)

At a glance

Court

Decision date

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (5)

Cited By (32)