Re M and the Protected Estates Act 1983 [2003] NSWSC 344

New South Wales Supreme Court

CITATION : Re M and the Protected Estates Act 1983 [2003] NSWSC 344 HEARING DATE(S) : 22/04/03 JUDGMENT DATE : 22 April 2003

JURISDICTION: Equity Division Protective List JUDGMENT OF : Young CJ in Eq DECISION : Stood over for further evidence.

CATCHWORDS : MENTAL HEALTH [1] & [8]- Jurisdiction- New Zealand domiciliary- Large verdict obtained in NSW- Whether verdict moneys should be managed in New Zealand. MS v ES [1983] 3 NSWLR 199 CASES CITED : Re Bariatinski (Princess) (1843) 1 Ph 375; 41 ER 674 Re FN [1984] 3 NSWLR 520 PARTIES : WRM (P) AJM (D) FILE NUMBER(S) : SC 44/99 COUNSEL : In Chambers - No appearances SOLICITORS :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST

YOUNG CJ in EQ

Tuesday 22 April 2003

44/99 – RE M AND THE PROTECTED ESTATES ACT 1983 JUDGMENT 1 YOUNG CJ in EQ: On 28 May 1999, on the application of the plaintiff, M's stepfather, I made an order that the defendant, M, was a person who is incapable of managing his affairs. 2 Mr M was injured in NSW in a motor car accident on 23 June 1997. He was described in one of the neuropsychological reports as a "New Zealand Maori". He had moved to West Ryde from New Zealand in December 1996. He stayed in Australia until at least the end of 1998 because he was examined by some medical practitioners in Sydney in December of that year. His accident claim was finally settled in the NSW District Court in May 1999 and on 13 May 1999, the summons in the present matter was filed. By that stage the plaintiff had returned to New Zealand. 3 I ordered that a competent relative, Mr B, be appointed as the manager of M's estate. 4 The facts before the Court are that M's entire estate is physically situated in NSW, being the investments made of his damages received from the District Court. M is now domiciled in New Zealand. By notice of motion filed 26 February 2003, an order was sought by H, a New Zealand relative of M, be appointed, together with B, as the manager. H is domiciled and at all material times has lived in New Zealand and carried on business there. 5 There is no reason to think that H is other than a most capable person in looking after M's affairs. 6 On 16 August 2002, H and B were appointed by the District Court at Manukau in New Zealand, pursuant to the Protection of Property Rights Act 1988 of New Zealand as managers of all M's property. 7 Although the Protected Estates Act 1983 does not make any specific provision as to the Court's jurisdiction, this Court has always considered that the rules of the old lunacy court prevail, namely that the Court is able to make a protective order so long as the subject of the order is present within the jurisdiction or some of his or her property is within the jurisdiction; see Re Bariatinski (Princess) (1843) 1 Ph 375, 376-7; 41 ER 674, 675 and MS v ES [1983] 3 NSWLR 199. Although most of the cases on residence involve residence at the time when the application was made, it seems to me that it is sufficient if at the time of the summons the propositus was ordinarily resident in NSW even though he or she may have gone elsewhere at the actual date the summons was filed. 8 In any event, this Court being a superior court, has made an order which was made with the acquiescence with M, and in which all parties still concur. 9 The essential question is whether the management should be shared with a New Zealander and the property despatched to New Zealand. 10 The law was summarised by Powell J in Re FN [1984] 3 NSWLR 520, 524, that is, in the present situation it will be appropriate to order the transfer of at least the income of the fund in NSW if it can be shown that the property is required for the maintenance or other purposes of the incapable person, but otherwise it would not be appropriate to do so. 11 The evidence of the plaintiff before the New Zealand District Court was as anonymized, "The reason that I am now applying in New Zealand is because [B and H] believe it would be advantageous for M to own his own home here. The rules are considerably more restrictive in Australia and do not permit the purchase of property outside New South Wales. M resides permanently in New Zealand and it makes sense therefore to have his monies managed here. … If the fund was transferred here under B and H's management in New Zealand it would make it considerably easier for M and enable him at some stage to buy a house in New Zealand." 12 It does not seem to me that this evidence goes sufficiently far to meet the test laid down by Powell J based on the authorities. 13 It may be that in this 21st century the Court of Protection is more pastoral in its approach than previously. It may be also that with respect to another Australian State or New Zealand, provided that this Court can be assured that there is some effective supervisory power such as the private management division of the Protective Commissioner's Office in NSW, it might be less inclined to follow strictly the precedents of yesteryear. 14 However, at this stage, I cannot see my way clear to make the order sought. I am more than prepared to list the matter for argument in Court and/or for evidence to be presented which would satisfy the test in Re FN and for evidence to be provided as to what supervision is provided by the New Zealand authorities over managers, or alternatively again, that part of the monies remain in NSW so as to provide a fund to enable supervision to continue in NSW. 15 I should note that the amount involved in the fund at the moment is close to $700,000, so that there is a significant amount of money involved. Even though I am quite sure that it is the intention of both H and B who are related to M to do the very best for him, experience shows that it is always wise to take some precautions in order to protect the interests of the incapable person. 16 Accordingly, I decline to make an order on the notice of motion at this stage and the matter may be relisted before me whenever it is convenient.