RJL v NSW Trustee and Guardian; The Estate of PBL [2011] NSWSC 200

Supreme Court New South Wales

Medium Neutral Citation: RJL v NSW Trustee and Guardian; The Estate of PBL [2011] NSWSC 200 Hearing dates: 7 February 2011 and 10 February 2011 Decision date: 23 March 2011 Jurisdiction: Equity Division - Protective List Before: Hallen AsJ Decision: 1. Subject to any submissions of the parties on the precise terms, I would propose the following orders and declarations: (a) The net proceeds of the lock up garage formerly owned by PBL are to be invested in a fund ("the Sale Fund") separate to the other funds in the personal estate of PBL ("the Other Funds"); (b) The income from the Sale Fund is to be paid, annually, to the Other Funds; (c) The sale of the lock-up garage only adeems the devise of the lock up garage to A under the Will executed by PBL on 30 July 1999 (if that Will is found to be the last valid will of PBL upon her death and if he survives PBL) to the extent that the moneys from the Sale Fund are spent on PBL's benefit, care and management; (d) The Sale Fund, or that part of it that is left at the date of PBL's death, constitutes the devise of the lock up garage to A under the clause of the Will made on 30 July 1999, (if that Will is found to be the last valid will of PBL upon her death and if he survives PBL); (e) The Sale Fund is not to be spent unless, or until, the Other Funds are exhausted. 2. Subject to argument, I would propose that each party's costs, calculated on the indemnity basis, be paid out of the Other Funds of PBL. Catchwords: Protection of interests in property of beneficiary named in will of managed person; nature and effect of s 83 NSW Trustee and Guardian Act 2009 Legislation Cited: Guardianship Act 1987 Guardianship and Protected Estates Legislation Act 2002 (NSW) Interpretation Act 1987 NSW Trustee and Guardian Act 2009 Powers of Attorney Act 2003 Protected Estates Act 1983 Trustee Act 1925 Cases Cited: Boykett (by his next friend Blackman) v Boykett (as executrix of the will of Boykett, deceased) Bull v Attorney-General (NSW) [1913] HCA 60 Christensen v McKnight and Ors (NSWSC, 2 March 1995, unreported) Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61 ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55 Johnston v Maclarn [2002] NSWSC 97 Marks v GIO Australia Holdings Ltd [1998] HCA 69 Orr v Slender [2005] NSWSC 1175 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 Protective Commissioner v "D" & Ors [2004] NSWCA 216 Category: Principal judgment Parties: RJL (Plaintiff) NSW Trustee and Guardian (Defendant) Representation: Counsel: Mr J E Thomson (Plaintiff) Mr L J Ellison SC (Defendant) Solicitors: Michael C Smith (Plaintiff) Crown Solicitors' Office (Defendant) File Number(s): P37/2010