Re D [2012] NSWSC 1006

Supreme Court New South Wales

Medium Neutral Citation: Re D [2012] NSWSC 1006 Hearing dates: 30 July 2012 Decision date: 31 August 2012 Before: White J Decision: 1. Order that the summons be dismissed. 2. Order that the plaintiff's costs on the indemnity basis be paid out of the plaintiff's estate to the plaintiff's solicitor up to the sum of $5,000. Catchwords: GUARDIANSHIP - protected person - financial management - application for revocation of management order - whether plaintiff capable of managing affairs - consideration of meaning of "capable of managing his or her affairs" - whether plaintiff able to make judgments concerning ordinary routine affairs of living - whether plaintiff has rational view of assets under management - where plaintiff does not appreciate existing liabilities - where unacceptable risk that plaintiff would incur expenses that could not be met - held plaintiff could not deal with ordinary routine affairs of her life

COSTS - exception to the general rule that costs follow the event - where plaintiff had no capacity to enter into contract of retainer with solicitor - where proceedings initiated and costs incurred for benefit of plaintiff - unjust for plaintiff's solicitors to be out of pocket - costs ordered on indemnity basis out of plaintiff's estate to plaintiff's solicitor Legislation Cited: Protected Estates Act 1983 NSW Trustee and Guardian Act 2009 Mental Health Act 1958 Cases Cited: Y v Protective Commissioner (Supreme Court of New South Wales, 8 February 1996, unreported) PY v RJS [1982] 2 NSWLR 700 Re An Alleged Incapable Person (1959) 76 WN (NSW) 477 Re MacGregor [1985] VR 861 In the Matter of Case (1915) 214 NY 199 Re M and The Protected Estates Act 1983 (1988) 12 NSWLR 96 Re GHI (a protected person) [2005] NSWSC 581 H v H (Supreme Court of New South Wales, Young J, 20 March 2000, unreported) P v R [2003] NSWSC 819 Category: Principal judgment Parties: D (Plaintiff) NSW Trustee & Guardian (Defendant) Representation: Counsel: C J Othens (Plaintiff) D French, solicitor (Defendant) Solicitors: City Lawyers & Consultants (Plaintiff) NSW Trustee & Guardian (Defendant) File Number(s): 2012/59307