RL v NSW Trustee and Guardian [2012] NSWCA 39

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: RL v NSW Trustee and Guardian [2012] NSWCA 39 Hearing dates: 13 December 2011 Decision date: 19 March 2012 Before: Campbell JA at [1] Young JA at [189] Sackville AJA at [197] Decision: (1) Appeal allowed. (2) In lieu of the answer given in the court below to question 2 in the amended summons, substitute the answer: "The Court declines to answer this question." (3) Revoke the declaration numbered 5 in the court below. (4) Replace Order 7 in the court below with: 7. The income from the Sale Fund is to be retained in the Sale Fund, and the question of entitlement to the income is to await further determination by the NSW Trustee or the Court. (5) Add to the orders made in the court below: 9. Without prejudice to how the moneys spent pursuant to this order are ultimately borne between the net proceeds of sale of the shares in Ansell Limited, interest that accrues on those net proceeds and other money that makes up the Other Funds, until further order of the court or further direction of the NSW Trustee moneys that are spent for PBL's benefit or on PBL's care or for the management of PBL's estate are to be paid from the Other Funds other than so much of the Other Funds as represents net proceeds of sale of shares in Ansell Limited and interest that accrues on those net proceeds. 10. Orders 6, 7 and 9 are in substitution for previous directions of the NSW Trustee concerning the setting aside of a separate fund from the proceeds of sale of the Darlinghurst garage of PBL and the manner in which that fund should be used. (6) RL's costs of the appeal on the indemnity basis to be paid from the estate of PBL other than the Sale Fund and so much of the Other Funds as represents the net proceeds of sale of shares in Ansell Limited. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: MENTAL HEALTH - management and administration of property - garage on separate certificate of title bequeathed to neighbour in will - testatrix subsequently subject to a management order - garage sold with home unit by manager - where NSW Trustee and Guardian has made an order under s 83 NSW Trustee and Guardianship Act 2009 for the investing of the proceeds from the sale of a specific bequest in a separate fund - merely accounting device to hold in separate fund, as moneys are available for protected person on exhaustion of general pool of funds available for the maintenance of the person - it is generally appropriate to also segregate income and interest from the separate fund from the general pool of funds