M v M [2013] NSWSC 1495

Supreme Court New South Wales

Medium Neutral Citation: M v M [2013] NSWSC 1495 Hearing dates: - Decision date: 11 October 2013 Jurisdiction: Equity Division Before: Lindsay J (in Chambers) Decision: Orders for discharge of the NSW Trustee and Guardian as manager of the estate of a protected person, and for appointment of a member of the protected person's family as a private manager, with ancillary orders, including an order confirming that the estate of the defendant continue to be subject to management under the NSW Trustee and Guardian Act 2009 NSW. Catchwords: GUARDIANSHIP - protected person - financial management - change of manager - order for discharge of management of NSW Trustee and Guardian - Order for appointment of member of family as private manager - principles governing a change of manager - paramount consideration remains protection of welfare, and interests, of protected person - prudential management requires flexibility, consultation with protected person and family, and respect for protected person's autonomy.

MENTAL HEALTH - protected person - appointment of manager of estate - change of manager - substitution of private manager for NSW Trustee and Guardian - principles governing change of manager - paramount consideration remains protection of welfare, and interests, of protected person - prudential management requires flexibility, consultation and respect for autonomy.

PRACTICE - NSW Trustee and Guardian Act - protected person - appointment of manager of estate - change of manager - substitution of private manager for NSW Trustee and Guardian - paramount consideration remains protection of welfare, and interests, of protected person - prudential management requires flexibility, consultation and respect for autonomy Legislation Cited: Administrative Decisions Tribunal Act 1997 NSW Corporations Act 2001 Cth, chapters 5D and 7 Guardianship Act 1987 NSW Guardianship and Protected Estates Legislation Amendment Act 2002 NSW Interpretation Act 1987 NSW, s 47 Lunacy Act, 1878 NSW, s 105 Lunacy Act 1898 NSW, s 115 Mental Health Act, 1958 NSW, s 51 NSW Trustee and Guardian Act 2009 NSW, s 39, s 41(1)(a), s 41(1)(b), s 68, s 127 Protected Estates Act 1983 NSW, s 5(8) Supreme Court Act 1970 NSW Supreme Court (Amendment) Act 1972 NSW, s 14 Trustee Companies Act 1964 NSW Cases Cited: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640 Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423 Fletcher, Ex parte (1801) 6 Ves Jun 427; 31 ER 1127 GDR v EKR [2012] NSWSC 1543 Gell v Gell (2005) 63 NSWLR 547 at 553-554 [21]-[23] Holt v Protective Commissioner (1993) 31 NSWLR 227 In Re W.M. (A person alleged to be of unsound mind) (1903) 3 SR (NSW) 552 at 561, 567, 569 and 570 JMK v RDC and PTO v WDO [2013] NSWSC 1362 JJK v APK (1986) Australian Torts Reports 80-042 at 67, 881 JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [60]-[62 Jones v Moylan (1997) 18 WAR 492 at 496-497, 501 and 509-510 Macedonian Orthodox Community Church St Petka Incorporated v Bishop Petar (2008) 237 CLR 66 at 93 [69] Morris v Zanki (1997) 18 WAR 260 at 284-286 Re L [2000] NSWSC 721 at [10] Re McL [2001] NSWSC 280 at [3]-[5] Re Walker (1848) 2 Phil 630; 41 ER 1087 Re Westbrooke (1848) 2 Phil 631; 41 ER 1087; G v B (Powell J, 27 May 1992) BC 9201855 at 13 Texts Cited: BE Porter and MB Robinson, Protected Persons and their property in New South Wales (Law Book Co, Sydney, 1987), pp 28-29, 29-30 HS Theobald, The Law Relating to Lunacy (Stevens and Sons, London, 1924), pp 380 and 382 Category: Principal judgment Parties: Plaintiff (sister of protected person) Defendant (protected person) Representation: Counsel: - Solicitors: - File Number(s): 2011/00231893