Re N [2011] NSWSC 1433

Supreme Court New South Wales

Medium Neutral Citation: Re N [2011] NSWSC 1433 Hearing dates: Monday, 7 November 2011 Decision date: 07 November 2011 Jurisdiction: Equity Division - Protective List Before: White J Decision: Refer to para [21] of judgment. Catchwords: GUARDIANSHIP - application for declaration that N incapable of managing her affairs and for order that estate be subject to management under NSW Trustee and Guardian Act 2009 - s 42, NSW Trustee and Guardian Act 2009 - where Guardianship Administration Board of Tasmania made guardianship order pursuant to s 20, Guardianship and Administration Act 1995 (Tas) - where N has never been resident of New South Wales -- finding of Guardianship Administration Board of Tasmania that N unable by reason of her disability to make reasonable judgments in respect of her estate is in substance a finding she is incapable of managing her affairs Legislation Cited: NSW Trustee and Guardian Act 2009 Guardianship and Administration Act 1995 (Tas) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Tas) Cases Cited: Re GHI [2005] NSWSC 581; (2005) 221 ALR 589 Category: Principal judgment Parties: Representation: Ms K Oldfield (Plaintiff) Beilby Poulden Costello Solicitors (Plaintiff) File Number(s): 2011/263507

Judgment 1HIS HONOUR : This is an application for a declaration that N is incapable of managing her affairs and for an order that her estate be subject to management under the NSW Trustee and Guardian Act 2009 and consequential orders. 2N is 19 years of age. The application is brought by her mother. Both N and her parents are currently resident in the United Arab Emirates. N was formerly a resident of Tasmania. She brought proceedings in the Supreme Court of Tasmania through her mother as her next friend for damages in relation to alleged medical negligence when she was an infant. Those proceedings were settled and resulted in judgment being entered in favour of N for a very substantial sum of money. 3On 10 September 2010 the Guardianship Administration Board of Tasmania made orders appointing the plaintiff, that is, N's mother, as administrator of her estate. Her powers were limited to instructing legal practitioners to act on N's plaintiff with regard to the action in the Supreme Court of Tasmania. 4The Board also made the following finding namely, that " the represented person [N]": " * is a person with a disability, and * is unable by reason of the disability to make reasonable judgments in respect of her estate, and * is in need of a limited administrator ". 5These findings reflected s 20 of the Guardianship and Administration Act 1995 (Tas). 6That section relevantly provides: " 20. Guardianship order (1) If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made - (a) is a person with a disability; and (b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances; and (c) is in need of a guardian - the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary. " 7On 9 August 2011 Porter J of the Supreme Court of Tasmania ordered that the judgment sum be paid to The Trust Company (Australia) Limited of 20 Bond Street, Sydney to be held on trust for N until further order. His Honour ordered that The Trust Company (Australia) Limited be appointed the manager without security of N's estate to act in relation thereto under the order and direction of the NSW Trustee and Guardian. 8His Honour also ordered that those orders lie in Court and not be taken out pending the filing of a certified copy of an order of the Supreme Court of New South Wales made under s 41 of the NSW Trustee and Guardianship Act making a declaration in respect of the plaintiff in accordance with paragraph (a) and appointing The Trust Company (Australia) Limited pursuant to paragraph (b) of that section. 9N has never been a resident of New South Wales. Her parents own property in this State and they propose to return to Australia in approximately three years when a contract that the plaintiff has to do work in the United Arab Emirates would have expired. Other family members reside in Sydney. Otherwise N has no connection with this State. 10A question is whether the Court has jurisdiction to make the orders sought, or orders to that effect. I was satisfied that at least insofar as the application for relief in the summons could be supported under s 42 of NSW Trustee and Guardian Act , it was an application to enforce a cause of action arising in New South Wales, or an application on a cause of action arising in New South Wales. I directed service of the summons on N in the United Arab Emirates. 11Today counsel for the plaintiff submits that the Court has jurisdiction to make the orders sought in the summons either pursuant to s 42 of the NSW Trustee and Guardian Act , or in the exercise of cross-vested jurisdiction pursuant to s 4(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Tas). 12Section 42(1) of NSW Trustee and Guardianship Act provides: " 42 Orders relating to persons outside New South Wales (cf PE Act, s 14) (1) If a person has been found to be incapable of managing his or her own affairs by a legal inquiry in another State or a Territory, or a country to which this section applies, the Supreme Court may: (a) direct a copy of the inquiry or the finding of the inquiry, duly certified by an officer of the court or other authority to which the finding has been returned, to be filed with the Court, and (b) declare that the person is incapable of managing his or her affairs and order that the estate of the person in this State be subject to management under this Act, and (c) by order appoint a suitable person as manager of the estate of the person in this State or commit the management of the estate of the person in this State to the NSW Trustee. ... " 13In my view there is jurisdiction under that section to make the orders sought in the summons. The question is whether N has been found to be incapable of managing her affairs by a legal inquiry in another State. 14The finding of the Guardianship and Administration Board was not a finding in terms that N is incapable of managing her own affairs. That is not the legislative test that that Board had to apply. 15Section 42 must be given a purposive construction in the light of the fact that there is no uniform legislation throughout Australia prescribing a single test as to when a guardian or financial manager may be appointed to manage the estate of an incapable person. 16The tests applied in this state as to when a person is incapable of managing his or her own affairs are well summarised in Re GHI [2005] NSWSC 581; (2005) 221 ALR 589 at [4]-[21]. It requires consideration of whether the person is capable of dealing in a reasonably competent fashion with the routine affairs of man such that there is a real risk that the person may be disadvantaged in the conduct of such affairs and that moneys or property may be dissipated or lost. The complexity of the person's affairs are to be taken into account. 17In my view the finding of the Board that N is unable by reason of her disability to make reasonable judgments in respect of her estate is in substance a finding that satisfies the terms of s 41 of the NSW Trustee and Guardian Act that she is incapable of managing her affairs. It is clear from the medical evidence that that is the case. 18It is not necessary to make a direction in terms of s 42(1)(a) directing that a copy of the finding of the Board duly certified by the Board be filed with the Court. Such a copy has already been filed by being annexed to an affidavit of the plaintiff's solicitor. 19I propose to make a declaration and orders pursuant to s 42(1)(b) and (c). In those circumstances it is unnecessary to consider the scope of the jurisdiction of the Supreme Court of Tasmania that may be vested in this Court pursuant to s 4(3) of the Jurisdiction of Courts (Cross-Vesting) Act (Tas). 20I am conscious that the order made by Porter J on 9 August 2011 referred to orders being made under s 41 of the NSW Trustee and Guardianship Act whereas the orders will be made under s 42. It will be a matter for that Court to decide whether, and if so, when the orders of 9 August 2011 should take effect. There will be no difference in substance whether the order I make today is made under s 41 or s 42. 21For these reasons, I make the following declaration and orders: 1. Declare that the defendant is incapable of managing her affairs. 2. Order that the estate of the defendant be subject to management under the NSW Trustee and Guardian Act . 3. Order that The Trust Company (Australia) Limited of 35 Clarence Street, Sydney be appointed without security as manager of the estate of the defendant in New South Wales. 4. Order that the costs of the plaintiff of, and incidental to, these proceedings as agreed or assessed be paid to the plaintiff out of the estate of the defendant. 5. These orders may be entered forthwith. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2011