MB v Protective Commissioner

[2000] NSWSC 717

Supreme Court of NSW|2000-07-25

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Court

Supreme Court of NSW

Decision date

2000-07-25

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

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introduction 1 I am dealing with an application by M, the mother of the protected person P, for orders removing the Protective Commissioner as manager of P's estate and appointing Perpetual Trustee Co. Limited as manager in his place. Before outlining the issues, including the grounds on which these orders are sought, I will give a very brief history of the matter. 2 P was injured in a motor vehicle accident in 1986, from which he suffered permanent severe brain damage which has left him totally dependent on others. For most of the time since he came out of hospital following the accident, he has been cared for by M in her home with the assistance of carers. 3 In 1987, this Court declared P incapable of managing his affairs, and appointed the Protective Commissioner manager of his estate. 4 In 1988, P was taken from M's home by a group of carers. Without assistance from the Protective Commissioner, M applied to this Court for an order that P be returned to M's care. In November 1988, Powell, J. ordered that, until further order, the Protective Commissioner be P's guardian and have custody of P, and that P reside in M's home and in her care. 5 In 1989, the Protective Commissioner on behalf of P commenced proceedings for damages for P's injuries from the motor vehicle accident. A firm of solicitors K acted for P in these proceedings. 6 From May 1989, out of payments received from P's workers' compensation insurer, the Protective Commissioner commenced to make weekly payments of $100.00 to M. These payments, together with superannuation of $200.00 per week which M received, were insufficient to meet M's financial needs. To meet those needs, in 1991 M borrowed $30,000.00, secured by a mortgage over her home. In December 1992, the amount secured by the mortgage was increased to $80,000.00, and during the period 1993 to 1995, M borrowed a further $50,000.00, secured by a second mortgage over her home. From October 1993, the Protective Commissioner paid $733.00 a month to the mortgagee. 7 In April 1994, the Protective Commissioner commenced proceedings in this Court seeking to vary the orders previously made concerning P's care, by deleting reference to P being in M's care. On 11th July 1994, consent orders were made providing that P would continue to reside in M's home under her primary care, but that there be an assistant primary carer employed by the Protective Commissioner. 8 The hearing of the damages proceedings commenced in September 1994, and concluded at the end of October 1994. Judgment was reserved. 9 By this time, the relationship between M and the assistant primary carer had broken down. On 4th November 1994, the Protective Commissioner wrote to M's solicitors, advising that he would seek an order that P be cared for in a house to be leased by the Protective Commissioner, unless M permitted the assistant carer to carry out her role. An application for such an order was filed in this Court at the end of November 1994. 10 On 8th December 1994, the Protective Commissioner entered into a lease of premises at Greenwich, the rent for which was paid from P's estate. The Protective Commissioner also used money from the estate to purchase furniture for use in those premises. 11 The Protective Commissioner's application was before the Court in April 1995; and at that stage it was indicated that the application to remove P from M's home would not be pressed pending finalisation of the Common Law proceedings. The lease over the Greenwich premises was not renewed after the first six months. 12 Judgment was delivered in the damages proceedings on 5th December 1995. In orders made on 11th December 1995, the plaintiff's damages were assessed at about $44 million, but there was a reduction by 25% for contributory negligence. From the resulting $33 million, there was deducted $1.5 million for workers' compensation payments. The figure of $44 million included over $400,000.00 for past gratuitous care of P by M. The judgment for about $31 million was stayed on condition that the defendant in those proceedings pay $5 million to the Protective Commissioner within 28 days. In fact, $5 million was paid to the Protective Commissioner on 27th December 1995. 13 In February 1996, the defendant in the damages proceedings filed a Notice of Appeal to the Court of Appeal. In the Notice it was claimed that the trial judge should have found higher contributory negligence by P, and that the damages were excessive. The Notice sought a re-hearing on the question of damages, or alternatively a re-assessment of damages by the Court of Appeal. 14 In May 1996, the Protective Commissioner increased the weekly payments to M. to $300.00; and this was further increased to $700.00 in August 1996. 15 In June 1996, M filed an application in this Court seeking orders that the Protective Commissioner be removed as manager of P's estate, that M be paid a sum for past gratuitous care of P, and that the mortgages over M's home be discharged out of P's estate. Thereafter, the Protective Commissioner's application that P be cared for in premises other than M's home was re-activated. 16 The appeal from the damages judgment was heard by the Court of Appeal in November 1996, and judgment was delivered in February 1997. The judgment did not disturb the finding on contributory negligence, but reduced damages to about $7.6 million. An application on behalf of P for special leave to appeal to the High Court of Australia was subsequently dismissed. The defendant paid the balance of $2.6 million to the Protective Commissioner on 12th February 1997. 17 The applications by M and the Protective Commissioner came on for hearing before me on 23rd June 1997. $200,000.00 was paid to M on account of past gratuitous care on 24th June 1997. The applications were heard for seven hearing days until 3rd July 1997, when they were stood over to 14th August 1997. During the hearing, on behalf of M there was a proposal for joint guardianship of P by M and another person T, who gave evidence before me. When the matter was adjourned, I ordered as an interim measure that M and T be joint guardians and have custody of P during the adjournment. 18 The matter did not then proceed further as a contested hearing until the most recent hearing before me on 3rd to 7th July 2000. In the meantime, the relationship between M and T broke down, and M was appointed guardian and given custody of P until further order. In May 1998, the Protective Commissioner decided not to pursue his application to have P removed from M's home, and arrangements were then put in place to make alterations to M's home so as to render it more suitable for the care of P. 19 These alterations were to take place in two stages. The first stage is now virtually complete, but there has been a dispute with the builders, and it is not clear when the remainder of the proposed work will be carried out.

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ISSUES 20 I will now set out the issues that have arisen in this contest, which I will then proceed to deal with in turn. 21 First, there has been the question of the principles on which the Court should act. There is no doubt that the Court has power to remove and replace a manager of a protected estate. However, there has been some dispute as to the principles on the basis of which this power should be exercised, and concerning the nature and extent of the duties of the Protective Commissioner and what would amount to breaches of such duties. 22 The next issue has concerned alleged breaches by the Protective Commissioner in the financial management of P's estate. The principal breach alleged is failure by the Protective Commissioner to formulate and implement a proper financial plan for the management of P's estate. It is also alleged that the Protective Commissioner failed properly to invest the proceeds of the damages judgment when they were first received. 23 Thirdly, there are issues concerning alleged breaches of duty by the Protective Commissioner in relation to the costs of the damages proceedings. It is alleged that the Protective Commissioner paid excessive solicitor/client costs in relation to those proceedings; and also that he delayed pursuing the party and party costs payable by the defendant in those proceedings. 24 Fourthly, there are issues concerning alleged wastage of assets of P's estate. First, it is alleged that assets were wasted in relation to the lease of the Greenwich premises, and the purchase and storage of furniture for them; and secondly, it is alleged that assets were wasted in the payment of commission to Macquarie Nursing Service. 25 Fifthly, there is an allegation that the Protective Commissioner failed to act in P's interests in his dealings with M. The particular complaints concerned allegedly insufficient financial support given to M, and failure to instruct the solicitors K to liaise with M's solicitors in relation to the damages proceedings. 26 Finally, there is the general issue whether, in P's interests, an order should be made for the removal of the Protective Commissioner and the appointment of Perpetual Trustee Co. Limited. The main matters to be considered in relation to this issue concern an alleged irretrievable breakdown of the relationship between M and the Protective Commissioner, and other aspects relating to the exercise of the Court's discretion.

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PRINCIPLES Legislation 27 The position and duties of the Protective Commissioner in relation to estates of protected persons are regulated by the Protected Estates Act 1983. 28 Section 5(4) of that Act provides as follows: 5(4) The Protective Commissioner shall have the functions conferred and imposed on the Protective Commissioner by or under this or any other Act or law. 29 Section 13(1) of the Act is in the following terms: 13(1) Where the Court is satisfied that a person is incapable of managing his or her affairs, it may make a declaration to that effect and order that the estate of the person be subject to management under this Act. 30 Division 3 of Pt.3 of the Act deals with the management of estates by the Protective Commissioner. The most relevant sections in this Division are ss.24, 25, 27 and 28, which are in the following terms: 24(1) In respect of the estate of a protected person the management of which is committed to the Protective Commissioner, the Protective Commissioner shall have, and may exercise: (a) all functions necessary and incidental to its management and care; and (b) such other functions as the Court may direct or authorise the Protective Commissioner to have or exercise. (2) Without limiting the generality of subsection (1) but subject to subsection (3), the Protective Commissioner shall have, and may exercise, the following functions in respect of the estate of a protected person the management of which is committed to the Protective Commissioner, that is to say, the Protective Commissioner may: (a) receive money, rent, income and profit of real and personal property; (b) grant leases of property; (c) surrender a lease and accept a new lease; (d) accept a surrender of a lease and grant a new lease; (e) execute a power of leasing vested in the protected person having a limited estate only in the property over which the power extends; (f) sell, realise, charge and mortgage real and personal property; (g) settle, adjust and compromise a demand made by or against the estate; (h) make exchange or partition of property and give or receive money for equality of exchange or partition; (i) carry on a business which the protected person had carried on, so far as may appear desirable for the purpose of more advantageously disposing of, or winding up, the business or preserving the business until the protected person is able to carry it on; (j) agree to an alteration of the conditions of a partnership into which the protected person has entered, for the purpose of more advantageously disposing of an interest in the partnership or terminating liability; (k) complete a contract for the performance of which the protected person is liable or enter into an agreement terminating the liability; (l) surrender, assign or otherwise dispose of, with or without consideration, onerous property; (m) exercise a power, or give a consent required for the exercise of a power, where the power is vested in the protected person for the benefit of the protected person or the power of consent is in the nature of a beneficial interest in the protected person; (n) sequestrate the estate under the bankruptcy laws; (o) bring and defend actions, suits and other proceedings, on behalf of the protected person; (p) bring land under the Real Property Act 1900. (3) The Protective Commissioner shall not, in the exercise of any functions referred to in subsection (2), grant or accept a lease of land for a term exceeding 5 years without the direction of the Court.

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28(1) The Protective Commissioner may apply money comprising the whole or any part of the estate of a protected person towards any one or more of the following purposes: (a) the payment of the debts and engagements of the protected person and the repayment of expenses chargeable to the estate of the protected person; (b) the maintenance, clothing, medicine and care, past and future, of the protected person and, in the event of the death of the protected person, the protected person's funeral expenses; (c) the maintenance of the spouse of the protected person or any child, parent or other person dependent upon the protected person, or for whose maintenance the protected person provided when not a protected person or would be expected to provide; (d) the payment of all proper costs, charges and expenses incurred in or about the care, protection, recovery, sale, mortgage, leasing, disposal and management of the estate of the protected person; (e) the preservation and improvement of the estate of the protected person; (f) the taking up of rights to issues of new shares, or options for new shares, to which the protected person may become entitled by virtue of any shareholdings. (g) the investment of money, being money not required for the time being for any of the foregoing purposes: (i) in any of the securities authorised by the Trustee Act 1925; or (ii) subject to subsection (2), in the purchase of real estate. (2) The Protective Commissioner shall not invest any money comprising part of the estate of a protected person in the purchase of real estate as referred to in subsection (1), unless such a purchase appears to the Protective Commissioner to be desirable for the purpose of: (a) protecting the estate from injury or deterioration in value; (b) increasing the value or facilitating the sale of other lands of the estate; or (c) providing a home for the protected person or any dependants of the protected person. 31 It will be seen that s.28(1)(g)(i) authorises investment in any of the securities authorised by the Trustee Act 1925. Prior to 13th March 1998, s.14A of the Trustee Act specified securities authorised by the Act, including, in s.14A(2)(g), the purchase of land in Australia. However, as from 13th March 1998, new provisions came into force concerning the powers and duties of trustees in relation to investment, including the following provisions in ss.14, 14A, 14B and 14C: 14 A trustee may, unless expressly forbidden by the instrument (if any) creating the trust: (a) invest trust funds in any form of investment, and (b) at any time vary any investment.

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Submissions 32 Mr. Martin SC for M submitted that the Court had power to remove the Protective Commissioner either pursuant to its inherent jurisdiction, or alternatively pursuant to s.47(1) of the Interpretation Act 1987 (power to appoint includes power to remove). He submitted that, in exercising this power, the Court would regard the welfare of P as the dominant consideration: see Miller v. Cameron (1936) 54 CLR 572 at 580-1. 33 Mr. Martin submitted that, by analogy with trust law, the Protective Commissioner was at least under a duty to exercise the same care as an ordinary prudent business person would exercise, as if the estate was his or her own property: see Fouche v. Superannuation Fund Board (1952) 88 CLR 609 at 640-641. Indeed, Mr. Martin submitted that the Protective Commissioner had a higher duty, similar to that of a professional trustee: see Australian Securities Commission v. A.S. Nominees Limited (1995) 62 FCR 504 at 516-8; Wilkinson v. Feldworth (1998) 29 ACSC 642 at 693. The Protective Commissioner in his evidence admitted that he regarded the standard of a professional trustee as the standard to be met by his office. 34 Mr. Officer QC for the Protective Commissioner submitted that the Protective Commissioner was not a trustee, but rather the holder of a statutory office, the powers, functions and duties of which were laid down by the Protected Estates Act. To a large measure, these powers were discretionary rather than being trust powers as such. The Protective Commissioner was not a trustee within the meaning of the Trustee Act, and did not have the obligations of a trustee. However, the Protective Commissioner accepted that he did have a duty to take reasonable care that P's estate was properly managed and administered. However, the powers of the Protective Commissioner were discretionary, and he had no positive duty to do anything apart from the positive duty to deposit funds into the statutory account. Thereafter, he merely had limited powers of alternative investments. Mr. Officer referred to Holt v. Protective Commissioner (1993) 31 NSWLR 227, at 237, where Kirby, P. pointed out the danger of applying too readily learning which has developed around trustees to the particular case of appointment of persons to manage the estate of a protected person. 35 Mr. Officer also submitted that it was important to remember that the essential issue in the case was whether or not it would be in the best interests of P to appoint the Perpetual Trustee Co. Limited in lieu of the Protective Commissioner; and that questions of breach of duty arose only to the extent that they were material to this question.

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Decision 36 In my opinion, the issue in this case is whether it is in P's interests to remove the Protective Commissioner as manager and to substitute the Perpetual Trustee Co. Limited. The alleged breaches, if proved, could be relevant in two ways: firstly, as showing the Protective Commissioner to be unfit to be manager; and secondly, as suggesting that the estate should be reimbursed by the Protective Commissioner and, if this is not done voluntarily, then another manager should be appointed to seek reimbursement to the estate. In both cases, it is not the mere fact of breach which would be determinative of the proceedings. Further, P is not represented in these proceedings independently of the Protective Commissioner, so that there is the possibility, if a new manager is appointed, of further proceedings concerning these alleged breaches. For that reason at least, it may not necessarily be appropriate for me to make definitive findings in relation to all the alleged breaches. 37 I propose to approach the matter in this way. If an alleged breach were such as could show that the Protective Commissioner is unfit to be manager, I would need to make a decision as to whether such breach has occurred. However, if the alleged breach were merely such as could require reimbursement, without showing that the Protective Commissioner is unfit to be manager, I would make a decision about such a breach if I thought the matter was clear; but otherwise, I would take into account the possibility or probability that such breach has occurred, and the possible need for reimbursement, as a factor in deciding whether a new manager should be appointed. 38 I accept Mr. Officer's submission that the Protective Commissioner is not a trustee; but in my opinion the Protective Commissioner has a duty which is in substance the same as that of a trustee. I believe that the Protective Commissioner should certainly aspire to, and should achieve, the standards of a professional trustee. But the legislature has not indicated that the Protective Commissioner is legally subject to that standard; and I do not think that the considerations which have led to the application of a higher standard to professional trustees, who hold themselves out as having particular expertise, justify the application of that higher standard to the Protective Commissioner.

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FINANCIAL MANAGEMENT Outline of Facts 39 As mentioned earlier, on 27th December 1995, the Protective Commissioner received $5 million on account of the damages awarded in the damages proceedings. This amount was paid into the ordinary account of the Protective Commissioner's common fund. About $2 million was paid out for expenses, mainly legal expenses of the damages proceedings. It was not until 29th February 1996 that $3 million was transferred to the interest-bearing account of the common fund. 40 On 12th February 1997, the Protective Commissioner received the balance of the damages, namely about $2.6 million. This was paid into the ordinary account of the common fund. $2 million was transferred into the interest-bearing account of the common fund on 30th May 1997. 41 In orders made on 19th May 1998, this Court directed the Protective Commissioner to investigate putting in place an allocated pension for P as soon as possible. 42 On 29th June 1998, about $37,000.00 was paid from P's estate into a superannuation fund. A further sum of about $38,000.00 was paid into that fund on 30th June 1999. 43 In September 1998, the Protective Commissioner requested Bs, personal financial planners, to prepare a financial plan for P's estate. D, a financial consultant with Bs, submitted such a report on 18th November 1998, recommending that the entire balance of the estate be paid into a superannuation fund, which would in turn be invested in a diverse range of investments. 44 This report was reviewed by F, a financial analyst employed by the Protective Commissioner, who prepared a memorandum dated 14th April 1999 which concluded inter alia that "diversification of the portfolio would be a recommended step", but that "the Common Fund remains a viable alternative". 45 In a further memorandum dated 5th May 1999, F concluded that the common fund would provide funds for P's upkeep longer than the Bs proposals. Thereafter, there was some re-calculation by Bs, taking into account tax benefits available for P's medical expenses; and there was a further memorandum prepared by F dated 8th July 1999, which asserted that there was little difference between the common fund and Bs outcomes. 46 Apart from the money put into the superannuation fund, as mentioned above, the whole estate has remained in the Protective Commissioner's common fund. 47 In June 2000, the Protective Commissioner paid about $21,800.00 into P's estate, representing interest that would have been earned if the sums of $3 million and $2 million from the damages award had been paid into the interest-bearing account of the common fund shortly after receipt of the respective amounts by the Protective Commissioner.

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Submissions 48 Mr. Martin referred to evidence from S, an investment consultant and trustee adviser, to the following effect. It was the usual practice of a competent and prudent trustee, in managing an estate, upon appointment to develop and formulate a financial plan for the estate. If the trustee had the necessary skill and expertise, the trustee would do this; and otherwise, the trustee would engage the services of a financial adviser to do so. Upon receipt of a financial plan, such a trustee would carefully consider the recommendations; and if the trustee regarded them as appropriate, would put them into effect if the trustee had the necessary power, and otherwise would apply to the Court for an order authorising the implementation of the recommendations (so long as the estate was of sufficient value to justify the expense of seeking such an order) 49 It was obviously important to ensure that P's estate provided adequately for P for the rest of his life, or at least for as long as possible. Mr. Martin submitted that the Protective Commissioner himself recognised the need to address the problem that there would be no capital growth in the common fund, and also the need for reducing the impact of income tax. Notwithstanding that, the Protective Commissioner did nothing about the matter, apart from making the relatively small superannuation payments, until October 1998. The Protective Commissioner was aware that he could approach the Court for authority to make investments not authorised by the Protected Estates Act, and had indeed done so in other cases. After the amendments to the Trustee Act came into force on 13th March 1998, the Protective Commissioner did not take into account the matters specified in s.14C or effectively consider them, at least until the receipt of the Bs report dated 18th November 1998. 50 Mr. Martin submitted that the Protective Commissioner failed properly to consider the Bs report: if he had done so, he would have implemented it. According to that report, implementation of its recommendations would make it probable that P's estate would meet expenses for twenty four years; whereas if the estate remained in the common fund, earning interest at the 6.5% per annum then being achieved, it would expire in about twenty one years; when P would be about 61 years of age. 51 The report was reviewed by F, who acknowledged that the purpose of obtaining that report was to seek independent expert advice, and that he himself did not have investment expertise. Although the report was submitted in November 1998, F's evaluation was not provided until April 1999. In his first memorandum, F misrepresented Bs' advice by asserting that, on the report's recommendations, the capital would last only about twenty years. 52 Mr. Martin submitted that F's reports were also incorrect, firstly, in that they misrepresented that the Bs report had not taken into account taxation; and secondly, in specifying entry and annual fees which were far higher than those suggested by the Bs report and far higher than would have been appropriate for the investments proposed by the Bs report. 53 In fact, Mr. Martin submitted, a proper understanding of the Bs report showed that the recommendations would have been likely to make P's estate last an extra three years or thereabouts, even based on a conservative estimate of returns of 9% per annum. In fact, according to evidence given by another financial consultant G, the mix of investments proposed by the Bs report had returned 14.2% per annum over the previous five years, and 14.6% per annum over the previous fifteen years. There were undoubted benefits from diversification of investments. 54 Mr. Martin also submitted that, upon receipt of the two payments representing the proceeds of the damages proceedings, the Protective Commissioner should immediately have invested so much as was not needed for expenses into the interest-bearing account of the common fund. 55 Mr. Officer submitted that it was clear that the Protective Commissioner and his officers at all relevant times, from the commencement of their involvement, recognised the long-term desirability of diversified investment and utilisation of tax-effective measures to assist the estate, and the desirability of capital growth. However, there were good and sufficient reasons why these long-term objectives were not implemented in the short term. 56 Firstly, there was, from June 1996, the pendency of proceedings to remove the Protective Commissioner as manager, making it undesirable to enter into long-term arrangements. Secondly, there was the pendency, until some time after the previous hearing of this matter in July 1997, of the Protective Commissioner's application to the effect that P be cared for in premises other than M's home, requiring the probable purchase of a home for P; and thereafter there was the need to provide money to make appropriate alterations to M's home. Thirdly, at the time when funds were received by the Protective Commissioner, the fixed interest rate of the common fund was very competitive with other forms of investment. Fourthly, there was the prospect of amendments being made to the Protected Estates Act, which would give the Protective Commissioner the power to use the common fund in ways open to trustees under the Trustee Act, with the possible advantage of economies of scale and in-house savings. Fifthly, there was the consideration raised by J, the manager of the common fund, that at relevant times economic instability in South East Asia could make it risky to invest in equity markets. Finally, there was F's proper and substantially accurate analysis of the Bs report. 57 Next, Mr. Officer submitted that the Bs report was no more than a projection made on certain assumptions. Although it was important whether P's estate would last for twenty or twenty five years, variations of one to three years in financial projections based on uncertain assumptions were of no real consequence. 58 Turning to F's memoranda, although the statement about taxation in the second memorandum may have been mistaken, the first memorandum took into account the merit of taxation benefits from the Bs proposal, and in any event, no adjustment to the conclusions of the Bs report was suggested on the basis of taxation. The final memorandum was not shown to be incorrect, and that was what the Protective Commissioner relied on; although indeed the Protective Commissioner gave evidence that he understood the Bs report to suggest that the estate would last twenty four years if invested in accordance with the report, not twenty years as suggested in F's first memorandum. 59 As regards the delay in putting amounts received from the damages claim in the interest-bearing account, it was not unreasonable that it would take two to two and a half months to assess P's immediate needs, before committing funds to an interest-bearing account for a period of at least twelve months. The difference between the two accounts was only about 1% to 1.45% per annum, and an amount of $21,800.00 had in any event been reimbursed. 60 Mr. Officer also pointed to evidence indicating that, if P's funds had been invested as recommended by Bs for the period 1st December 1998 to 18th November 1999, it would have earned a return of 4.5% per annum; whereas the return achieved for P's estate in the common fund was 6.09% per annum. 61 In reply, Mr. Martin submitted that proper evaluation of an investment strategy required a much longer term than eleven months. Furthermore, the comparison did not take account of tax savings from the Bs plan. 62 Mr. Martin further submitted that the decision not to follow the Bs recommendations was based on F's memoranda, not the six considerations advanced by Mr. Officer. As regards those considerations, Mr. Martin made the following submissions. The existence of proceedings to remove the Protective Commissioner did not absolve him of his obligations; and consent to following an investment scheme could have been sought from M and from the Court. The possible need to provide a home or to fund alterations to M's home affected only a part of the estate, and did not prevent diversification. By November 1998, as acknowledged by the Protective Commissioner, a sustained drop in the return from the common fund was likely, so that diversification was more pressing. It could not be a ground for not adopting an investment scheme, that the Protective Commissioner was awaiting legislative changes. The financial problems in Asia had no real significance for long-term investments. Finally, F's last memorandum was infected by the same mistake as the first: it added two years to the twenty year life of the estate suggested as the outcome under the Bs report in the first memorandum, giving twenty two years, whereas it should have added two years to the twenty four years stated in the Bs report, giving twenty six years; and thus giving a substantial advantage over leaving the estate in the common fund.

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Decision 63 I accept Mr. Martin's submission that there were errors in F's memoranda concerning taxation and concerning the charges involved in the Bs investment scheme. I accept that, fairly read, the Bs report suggested that the estate would last three to four years longer if its recommendations were followed, as compared with leaving the estate in the common fund at an assumed average rate of return of 6.5% per annum. I note also that the Protective Commissioner said in evidence that the general approach adopted to leave the estate, at least for the time being, in the common fund was, he supposed, based principally on F's report. However, the Protective Commissioner also said, and I accept, that other factors influencing him included the pendency of this application for replacement of the Protective Commissioner as manager, the plan to have P cared for in his own home, involving the purchase of a home, and the high performance of the common fund. The Protective Commissioner also said that there was not sufficient in the Bs report to justify "out-sourcing" the investment prior to anticipated changes to the Protected Estates Act, allowing the Protective Commissioner to increase the long-term capital gains for the common fund through more flexible investments. Furthermore, it appears probable, from the calculations referred to at the conclusion of Mr. Officer's submissions, that no actual disadvantage has been caused to the estate, at least by failure to adopt a diversified investment strategy prior to November 1999. 64 Having regard to all those considerations, it is clear to my mind that, even if what is alleged could amount to a breach, it could not, either on its own or in combination with other alleged breaches, be such as to show unfitness in the Protective Commissioner to be manager of P's estate. On the material before me, I am not satisfied that the failure to adopt a diversified investment strategy, or to adopt tax-saving measures other than the limited use of superannuation actually adopted, amounted to a breach, on the ordinary prudent person standard. I do not intend by that statement to make any definitive finding which could affect the consideration of the question by any other court dealing with any application that might subsequently be brought by a new manager against the Protective Commissioner. 65 Turning to the other matter, namely the delay in putting money in the interest-bearing account, this could not conceivably show unfitness to be manager. It could possibly be a breach giving rise to a duty to reimburse, but reimbursement has in fact taken place. In those circumstances, I do not think I need to consider it further.

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Following that recommendation, $130,500.00 was paid to K, and Costacomp was paid $19,460.00. 72 On 19th February 1996, K sent to the Protective Commissioner an account for work done between 16th May 1995 and 12th June 1996, showing costs of about $29,000.00, disbursements of about $6,000.00, and Counsels' fees of about $51,000.00. This account was prepared by K themselves, not by Costacomp. 73 R prepared a memorandum dated 6th March 1996, recommending payment of Counsels' fees. However, in relation to the solicitors' costs, five items were identified which might be considered not to be a fair and reasonable charge. The memorandum concluded: In the circumstances, negotiations could be entered into directly with [K] with a view to settlement of costs as agreed or a Costs Consultant engage (sic) to prepare an itemised solicitor/client Bill so that a fair and proper assessment of the fees could be made. In the interim it is recommended that an advance on account of profit costs be given to the solicitors and reasonable outstanding disbursements met. 74 On 8th March 1996, the Protective Commissioner wrote to K enclosing Counsels' fees, and an amount for solicitors' costs $6,850.00 less than the amount claimed. The letter explained the basis of the deduction and concluded: Notwithstanding, we will give further consideration to the matter should you wish to discuss the same. 75 K wrote back on 13th March 1996 claiming the balance, and seeking to justify it. It appears that it was not paid. 76 The Court of Appeal decision was given on 11th February 1997. P was ordered to pay the defendant's costs of the appeal, although the defendant was ordered to pay P's costs in relation to the defendant's unsuccessful application to lead further evidence on the appeal. 77 On 13th February 1997, the Protective Commissioner wrote to K, asking them to advise whether they would now proceed to recover the party and party costs. Reminders were sent on 3rd March 1997, 17th April 1997 and 5th August 1997. However, it was not until 8th August 1997 that K gave instructions to Costacomp to prepare the party and party bill. On 13th August 1997, K wrote to the Protective Commissioner, advising that completion of the bill was expected on 29th August 1997. 78 However, it appears that K had not provided its full file to Costacomp, and on 8th December 1997, the Protective Commissioner wrote to K requesting that the balance of the file be forwarded to Costacomp. 79 On 9th March 1998, Costacomp provided the prepared bill to K. The bill as prepared claimed a total of $1.473 million, including K's costs of $340,000.00. Costacomp billed K for preparation of this account in the sum of $32,580.00, but showed credit for $19,460.00 already paid. 80 The bill was served on the defendant's solicitors on 20th March 1998, but apparently the copy served omitted pages 157-174. This was notified to K by a letter from the defendant's solicitors of 5th May 1998. 81 On 15th May 1998, K advised the Protective Commissioner that they would file the bill on 1st July 1998 unless agreement was reached with the defendant's solicitors. On 6th August 1998, the Protective Commissioner wrote to K asking about the progress of the matter; and on 10th September 1998, the Protective Commissioner wrote again to K, instructing them to file the bill and enclosing a cheque of around $15,000.00 for the filing fee. On 7th October 1998, the Protective Commissioner wrote again to K, advising that, unless the bill was filed the next day, the Protective Commissioner would attend to the matter. 82 However, on 22nd October 1998, K wrote to the Protective Commissioner, advising that they had been informed by the defendant's solicitor that they were missing pages 157-174 of the bill, and advising that those pages were served upon the defendant's solicitors by hand that day, and that a further twenty one days had to be allowed before filing for assessment. It appears that the bill was filed for assessment on or about 13th November. 83 On 12th May 1999, Costacomp advised that concessions had been made concerning the bill so that K's profit costs had been reduced to $307,000.00 and disbursements reduced to $983,000.00. The determination of the costs assessor was given on 29th July 1999, assessing the costs at $220,000.00 and the disbursements at $655,000.00. These amounts were paid on 24th August 1999. 84 The defendant claimed costs of $373,000.00 concerning the appeal to the Court of Appeal, and $40,000.00 in relation to the application for special leave in the High Court. These claims were settled in December 1999 for a total of $280,000.00, which was paid on 7th December 1999. 85 In making its costs order on 11th February 1997, the Court of Appeal had provided that P should have a certificate under the Suitors Fund. The maximum amount available under such certificate was $10,000.00, and this was received on 2nd March 2000.

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Submissions 86 Mr. Martin referred to evidence from S that it was the usual practice of careful and competent trustees to get an independent assessment of costs. The Protective Commissioner had wrongly treated Costacomp as making an assessment of the reasonableness of K's costs, whereas it had been employed by K to prepare K's account. The Protective Commissioner was therefore not relieved of the responsibility of ensuring that only reasonable costs were paid. The bill prepared by Costacomp did not indicate charges for particular items, and in considering that bill, R did no more than make a global assessment. In fact, some of the hourly charges for solicitors were excessive: up to September 1988, the prescribed hourly rate was $69.90, while between May 1992 and June 1994 it was $140.00 per hour. Apart from $6,850.00, K's accounts were paid in full. 87 Mr. Martin relied on evidence from the costs assessor E that the costs were grossly excessive. Furthermore, the Protective Commissioner took no account of the comments concerning costs made by the trial judge in the damages proceedings, which resulted in costs being excluded from the party and party bill. A diligent and prudent manager would have endeavoured to ensure that unreasonable costs were not paid to K. 88 Mr. Martin also submitted that there had been unreasonable delay in pursuing party and party costs. The order for costs was made on 11th December 1995, and since the appeal related only to quantum and contributory negligence, there was no valid reason why the party and party costs bill was not prepared soon after 11th December 1995. And again Mr. Martin relied on evidence to that effect from E. There was a delay of almost three years, in respect of which time, as the Protective Commissioner knew, interest could not be recovered from the defendant. 89 Mr. Officer submitted that the Protective Commissioner had previously engaged Costacomp to assess costs, and quite reasonably considered that Costacomp had a high reputation and experience in assessing costs, and that in preparing the bill, Costacomp would make a reasonable assessment rather than merely assisting K to recover the maximum amount of costs. The request from K that Costacomp's costs be paid by the Protective Commissioner confirmed that Costacomp was approaching the matter with a view to assessing reasonable costs. There were practical constraints on obtaining fully itemised accounts, with charges for individual items, seeking further third party assessments, and lodging objections. Mr. Officer submitted that R's evidence, concerning her consideration of the matter, was impressive; and that she gave the matter of costs serious and genuine consideration. In relation to the February 1996 bill, she had carefully itemised matters that she thought unreasonable, and matters justifying further enquiry. 90 Mr. Officer submitted that E, in his evidence, was prone to exaggeration, and that he had drawn sweeping conclusions on inadequate material. Mr. Officer submitted that this was confirmed by evidence from N, a costs consultant who gave evidence for the Protective Commissioner. 91 In relation to the references to excessive costs in the judgment of the trial judge in the damages proceedings, this was taken into account by the Protective Commissioner, who pointed out that it was difficult to disentangle over-zealousness by the client and over-zealousness by the lawyers. Generally, the Protective Commissioner's approach was one of care and professionalism, taking into account all relevant matters. In the circumstances, it was not necessary to seek further independent advice. 92 In relation to delay, Mr. Officer submitted that, because the appeal sought a new trial on damages, there was a chance that the costs order for the first trial would be disturbed; so that it was appropriate to delay preparing a bill of costs until after the Court of Appeal decision. Thereafter, the Protective Commissioner acted diligently with a view to having the bill prepared and assessed. 93 In reply, Mr. Martin submitted that E had not been cross-examined to suggest that the comparisons he made between solicitor/client and party/party costs proceeded on a wrong basis. A proper analysis of the break-up between those costs in respect of which P had costs orders and those in respect of which he did not was not provided by the Protective Commissioner. Mr. Martin also submitted that the Protective Commissioner had given no evidence seeking to justify delay in relation to the bill of costs, or why it could not have been prepared before the appeal was decided. In those circumstances, inferences should not be drawn in his favour.

[24]

Decision 94 In my opinion, E was too ready to reach sweeping conclusions on inadequate material. I believe that there is sufficient material available to make a more accurate comparison between solicitor/client and party/party costs than that undertaken by E. 95 In my opinion, it is clear that, out of the totality of around $1.8 million in solicitor/client costs paid in respect of the damages proceedings, at least about $400,000.00 related to costs in the Court of Appeal and the High Court, in respect of which no costs order was obtained. As regards the balance, some of the costs could not be recovered against the defendant because of the qualifications in the trial judge's costs order. I accept the evidence of the Protective Commissioner that it would have been difficult to disentangle those costs, and extremely difficult to disentangle within those costs those which were due to instructions from the client and those which were due to unreasonable conduct by the lawyers. In the result, about $900,000.00 was recovered as party/party costs in respect of about $1.4 million of solicitor/client costs. While I accept the evidence of both costs assessors that, in their wide experience, they had never encountered costs of this order in damages proceedings, in my opinion the amount of recovery of party/party costs does indicate that this was an extraordinary case. In all the circumstances, it does not seem to me that the recovery of about 64% of the relevant solicitor/client costs itself suggests that the solicitor/client costs were excessive. 96 As regards the process of assessment, in my opinion the circumstances of engagement of Costacomp made it reasonable for the Protective Commissioner to proceed on the basis that Costacomp would responsibly assess what it considered to be reasonable costs. That being so, I do not think it was unreasonable not to insist on allocation of charges for individual items of work, and not to incur the expense of a further independent assessment of the costs. In my opinion, the costs were carefully assessed by R, albeit on a global basis, and I do not think any unreasonableness has been shown in relation to the payment of costs. 97 Turning to the question of delay, in my opinion the circumstance that a new hearing was sought in the Notice of Appeal meant that there was a possibility that the costs order concerning the first trial could be varied, so that there could be waste if a bill of costs was prepared immediately, and if it turned out that it was prepared on a wrong basis. On the other hand, the party/party recovery could be expected to approach $1 million, and interest would not begin to run until the costs were taxed or assessed. In broad terms, this meant that the estate would lose something in the order of $1,000.00 for every week that elapsed before the bill was taxed or assessed. In those circumstances, I think some consideration should have been given, shortly after the costs order was made, whether to have the bill of costs prepared then, with the risk of wasted expenditure, or to wait until after the Court of Appeal decision. It does not appear that that consideration was given. On the other hand, I am not satisfied that the only reasonable outcome of such consideration would have been to go ahead and have the bill of costs prepared immediately. 98 After the Court of Appeal judgment was delivered, the Protective Commissioner acted diligently in seeking to have the bill of costs prepared and taxed. However, there were a number of delays by the solicitors K which, on the evidence before me, are wholly unexplained. First, there was a delay of over five months before K gave instructions to Costacomp to prepare a bill. Then there was a further four months before K provided Costacomp with the whole of its file. Then there was a further five months delay between K being notified by the defendant's solicitors that the copy of the bill served on it was missing pages 157-174, and the actual service of those pages on 22nd October 1998. Those unexplained delays prima facie lost the estate around $60,000.00 of income. I do not think the Protective Commissioner is responsible for those delays as such, but I think the Protective Commissioner should have sought an explanation from K about those delays, and if no satisfactory explanation was forthcoming, should have sought that K compensate the estate for the $60,000.00 of income which it lost because of those delays. 99 That is a matter that can still be pursued; and in my opinion any breach of duty involved to date in this matter would not make the Protective Commissioner unfit to be manager of the estate. 100 As regards the $10,000.00 from the Suitors Fund, in my opinion that only became recoverable from the Suitors Fund once P's estate had paid the costs of the appeal due to the defendant; and I do not think the delay of three months involved there is of any significance.

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WASTAGE OF ESTATE Facts 101 As noted earlier, at the end of November 1994, the Protective Commissioner filed an application in this Court seeking an order that P be cared for in a house to be leased by the Protective Commissioner. It is not necessary or appropriate for me in this judgment to discuss the issues raised by that application in any detail. Suffice it to say that it was prompted by disagreements which had arisen between M and assistant primary carers employed by the Protective Commissioner, between M and certain therapists who had been employed with a view to assisting in P's rehabilitation, and between M and certain other carers; by difficulties experienced by representatives of the Protective Commissioner in gaining access to M's house and to P, so as to enable the Protective Commissioner to fulfil his duties as guardian of P; and by the perceived unsuitability of M's house as a place for P. In particular, M's house is situated on a steep block of land, and, prior to alterations that have been undertaken, was such that for P to be taken out, it was necessary that he be bodily carried by two carers up fourteen steps to get to the front door, then up a further forty-three steps to street level, his wheelchair being carried up separately. 102 As noted earlier, on 8th December 1994, the Protective Commissioner entered into a lease of premises at Greenwich, and at about the same time, purchased furniture for use in those premises. The premises provided fairly level access. The lease was not renewed after the first six months. The furniture was then put into storage, where it remained until about October 1998, at a rental of $109.00 per month. The furniture was then sold for something under $300.00. 103 The Protective Commissioner decided in April 1995 not to press the application to have P removed from M's house pending finalisation of the damages proceedings; and in May 1998, he decided finally not to pursue the application. 104 In relation to Macquarie Nursing Service, the position was that until December 1995, carers were paid by the workers' compensation insurer of the defendant in the damages proceedings. After judgment was given in those proceedings, the question arose whether carers should thenceforth be employed by P through the agency of the Protective Commissioner, or alternatively be employed by a nursing agency. 105 By letter dated 2nd January 1996, the Protective Commissioner advised M's solicitors of a decision to use an employment agency, in the following terms: This Office will be negotiating with an employment agency to take over full arrangements pertaining to the carers including deduction of tax, superannuation entitlement, workers' compensation etc. The employment agency will enter into individual contracts with carers at the rate of pay presently in place. The employment agency will be considered as the employer and will also be responsible for organising emergency staff, rosters, holiday schedules and assessments of standards. 106 In a reply dated 30th January 1996, M's solicitors advised that they accepted that proposal in principle. Thereafter, quotes were obtained from Macquarie Nursing Service and AbleCare. These were submitted to M's solicitors on 14th February 1996. There was no response, and Macquarie Nursing Service was engaged. 107 On 10th April 1996, solicitors then acting for M wrote to the Protective Commissioner advising that M would not work with Macquarie Nursing Service, and that the use of a nursing agency was not required. However, on 15th May 1996, the Protective Commissioner responded that he would continue with Macquarie Nursing Service. 108 It appears that in about mid-1997, the Protective Commissioner set up in its office a carers' payroll section, for dealing with payment of carers, and deduction of tax and superannuation etc. The Protective Commissioner advised M's solicitors that it had such a section by letter dated 7th July 1997. 109 However, the Protective Commissioner continued to use Macquarie Nursing Service, and has paid them commission totalling a little over $93,500.00.

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WHETHER ORDER SHOULD BE MADE Submissions 121 Mr. Officer submitted that there was no doubt that the Protective Commissioner had expertise in the management of estates, with all that involves, not limited to financial matters. The Protective Commissioner could, and had in other cases, put in place very effective long-term investment strategies for disabled people. The present complaints, apart from that concerning Macquarie Nursing Service, related to past events. There was no continuing day to day aggravation, as there had been in the past. 122 Mr. Officer submitted that the alternative suggested was a total unknown. M did not know any of the officers of the proposed new manager, it was not known who would handle the estate or what expertise that person would have, whether that person would have a satisfactory relationship with M, what care regime for P would be proposed, or what the financial plan would be. Such papers has had been submitted on behalf of the proposed new manager suggested a return of 7.3% per annum, which according to M's financial analyst G, would be inadequate. From 24th March 2000, the Protective Commissioner had been pressing for details of the identity of the proposed manager and the investment plan; and as late as 28th June 2000, no investment plan had been suggested. 123 Accepting that the relationship between M and the Protective Commissioner lacked confidence and trust, there was no guarantee that the relationship between M and a new manager would be any better. There had been a history of relationships between M and other persons involved in the care of P beginning happily and then breaking down. 124 Mr. Martin submitted that a highly reputable trustee company had been proposed as the new manager. The criticism of M's ability to maintain relationships with other persons involved in P's care should not be transposed to the relationship with the new manager. There was far more scope for friction with carers and other persons involved day to day with the care of P. 125 Mr. Martin further submitted that an order should be made under s.30(1)(b) of the Protected Estates Act, removing or limiting the continuing role of the Protective Commissioner in supervising the trustee company.

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Decision 126 In my opinion, the relationship between P's mother and primary carer M, and P's manager, is important. The relationship between M and the Protective Commissioner has broken down. This has adverse consequences for P and P's estate. Because M cannot deal directly with the Protective Office, very substantial costs are being incurred through the necessity to engage solicitors in her dealings with the Protective Commissioner. In my opinion, M's own peace of mind is very important to P's welfare: she has devoted herself utterly to his wellbeing, and can be expected to continue to do so for some years. 127 Although I have not found any material breach of duty by the Protective Commissioner, the history of this particular estate does not suggest there is any significant advantage to P in retaining the Protective Commissioner as manager, rather than appointing a reputable trustee company. The trustee company in this case has quoted relatively low entry fees and on-going fees. If I were to appoint the trustee company, I think it would be appropriate that the on-going role of the Protective Commissioner be a fairly small one, so that the usual fees involved in supervision by the Protective Commissioner of private managers could be reduced. If that is done, in my opinion, the financial disadvantages of changing from the Protective Commissioner to the proposed manager would be small. There could be financial advantages in the expertise which the proposed new manager could bring, and the proposed new manager would undoubtedly be subject to the liability of a professional trustee in relation to the financial management of P's estate. 128 It is possible that the relationship between M and the trustee company could break down in the future, as has M's relationship with many other persons who have been involved in P's care. However, this is only a possibility: M's relationship with the Protective Commissioner has certainly broken down, and having regard to the long history of conflict, I do not think it can now be restored. 129 On balance, in my opinion, the advantage in removing a manager, with whom M's relationship has broken down, outweighs any disadvantage involved in the appointment of the new manager. 130 For those reasons, I propose to remove the Protective Commissioner as manager of P's estate, and to appoint the Perpetual Trustee Co. Limited as manager in his place. 131 In my opinion, both parties to these proceedings have acted reasonably in what they considered to be the best interests of P, and my tentative view is that the costs of both parties should be paid from his estate. ***********