Re PDC [2021] NSWSC 1701

Supreme Court New South Wales

Medium Neutral Citation: Re PDC [2021] NSWSC 1701 Hearing dates: 22 October 2021 Date of orders: 23 December 2021 Decision date: 23 December 2021 Jurisdiction: Equity Before: Lindsay J Decision: Orders made, pursuant to section 86A of the Trustee Act 1925 NSW, to approve an arrangement for transfer of the management of an incapable person's interest in a non-compliant Special Disability Trust (formerly governed by the Social Security Act 1991 Cth) to a regime of protected estate management under the NSW Trustee and Guardian Act 2009 NSW Catchwords: MENTAL HEALTH — Management of estate — Person incapable of managing her affairs — Approval of transfer of management of incapable person's interest in a Special Disability Trust to a protected estate management regime EQUITY — Trusts and trustees — Variation of trusts — Revocation of Special Disability Trust — Inherent and statutory jurisdiction — Trustee Act 1925 NSW, s 86A Legislation Cited: Civil Procedure Act 2005 NSW Guardianship Act 1987 NSW Infants Custody and Settlement Act 1899 NSW NSW Trustee and Guardian Act 2009 NSW Powers of Attorney Act 2003 NSW Social Security Act 1991 Cth Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 NSW Succession Act 2006 NSW Trustee Act 1925 NSW Trustee Act 1958 Vic Uniform Civil Procedure Rules 2005 NSW Variation of Trusts Act 1958 (Eng) Uniform Civil Procedure Rules 2005 NSW Cases Cited: Ability One Financial Management Pty Ltd and Anor v JB by his Tutor AB [2014] NSWSC 245 AC v OC (a minor) [2014] NSWSC 53 Chapman v Chapman [1954] AC 430 Cisera v Cisera Holdings (2018) 98 NSWLR 747 CJ v AKJ [2015] NSWSC 498 CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98 David by her tutor the Protective Commissioner v David (1993) 30 NSWLR 417 Fountain v Alexander (1982) 150 CLR 615 Gibbons v Wright (1954) 91 CLR 423 In re New [1901] 2 Ch 534 In re Seale's Marriage Settlement [1961] Ch 574 In re Tollemache [1903] 1 Ch 457 In re Weston's Settlements [1969] 1 Ch 223 In re Windeatt's Will Trusts [1969] 1 WLR 692 IR v AR [2015] NSWSC 1187 McNee v Lachlan McNee Family Maintenance Pty Ltd [2020] VSC 273 PB v BB [2013] NSWSC 1223 Perpetual Trustee Co Ltd v Fairlie-Cunningham (1993) 32 NSWLR 377 Perpetual Trustees Victoria Ltd v Barns (2012) 34 VR 387; [2012] VSCA 77 Re AAA; Report on a Protected Person's Attainment of the Age of Majority [2016] NSWSC 805 Re Eve at [1986] 2 SCR 408 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 Saunders v Vautier (1841) 4 Beav 115; 49 ER 282 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406 Texts Cited: Lewin on Trusts (Thomson Reuters, London, 20th edition, 2020) Jacobs' Law of Trusts in Australia (Lexis Nexis Butterworths, Australia, 8th edition, 2016) O R Marshall, "Deviations from the Terms of a Trust" (1954) 17 k 420 Category: Principal judgment Parties: First Plaintiff: PDC, a person incapable of self-management Second Plaintiff: DB, enduring attorney of the first plaintiff First Defendant: SM, trustee of a Special Disability Trust of which the first plaintiff is the beneficiary Second Defendant: NSW Trustee and Guardian Representation: Counsel: Plaintiffs: H Morrison First Defendant: RD Wilson SC Second Defendant: M Rice, solicitor