FC v SC [2022] NSWSC 1780

Supreme Court New South Wales

Medium Neutral Citation: FC v SC [2022] NSWSC 1780 Hearing dates: 20, 21, 22, 23 & 24 June, and 7, 8, 13 & 14 July 2022 Date of orders: 15 December 2022 Decision date: 31 December 2022 Jurisdiction: Equity Before: Slattery J Decision: Orders made pursuant to the NSW Trustee and Guardian Act 2009, s 41(1)(a) that the estate of the second defendant be subject to management under the Act. Other consequential orders made. Catchwords: MENTAL HEALTH - Protected Estates – the plaintiff applies for a declaration and orders under the New South Wales Trustee and Guardian Act 2009, s 41(1)(a) ("the TAG Act") that the estate of his father, the first defendant, be subject to management orders under the TAG Act – the first defendant is taken out of the jurisdiction by his nephew, the second defendant – the first defendant now lives with the second defendant – the plaintiff applies for declarations that various powers of attorney and enduring guardian appointments executed by the father are void and of no effect – whether the first defendant is a person "incapable of managing his or her affairs" – whether the estate of the first defendant should be subject to management under TAG Act. Legislation Cited: Civil Procedure Act 2005, s 26 COVID-19 Legislation Amendment (Emergency Measures) Act 2020 Guardianship Act 1987 ss 4, 6H, 8, 15(3), 24 Jurisdiction of Courts (Cross Vesting Act) 1987 (NSW), s 9 Jurisdiction of Courts (Cross Vesting Act) 1987 (Qld), s 4 NSW Trustee and Guardian Act 2009, ss 41(1A), 41(2) Powers of Attorney Act 1998 (Qld), s 113 Powers of Attorney Act 2003, s 36 Cases Cited: Aboody v Ryan [2012] NSWCA 395 Aboody v Ryan [2012] NSWSC 136 Application of SG [2011] NSWSC 372 CD v EF [2018] NSWSC 848 CJ v AKJ [2015] NSWSC 498 EB v Guardianship Tribunal [2011] NSWSC 767 IR v AR [2015] NSWSC 1187 PY v RJS [1982] 2 NSWLR 700 Re B (No. 1) [2011] NSWSC 1075 Szozda v Szozda [2010] NSWSC 804 W v G (2003) 59 NSWLR 220 Texts Cited: Blackstone, Commentaries on the Laws of England (9th ed, 1783, Printed for Strahan, Cadell, & Prince) H. S. Theobald, The Law Relating to Lunacy (1924, Stevens & Sons Ltd) Meagher Gummow and Lehane explain, W Gummow, M Leeming and P Turner, Meagher Gummow and Lehane's Equity Doctrines and Remedies, 5th edition, LexisNexis , [15-105] Category: Principal judgment Parties: Plaintiff: FC First Defendant: SC Second Defendant: JC Third Defendant: NSW Trustee and Guardian Representation: Counsel: Plaintiff: Mr A. Crossland; Ms B. Flaherty First Defendant: Mr A. Galapo