Re Managed Estates Remuneration Orders [2014] NSWSC 383

Supreme Court New South Wales

Medium Neutral Citation: Re Managed Estates Remuneration Orders [2014] NSWSC 383 Hearing dates: 31 March 2014 Decision date: 02 April 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: Orders made (under the NSW Trustee and Guardian Act 2009 NSW, s 64) authorising the NSW Trustee and Guardian, in a limited range of cases, to allow remuneration to a private manager of the estate of a protected (or other form of managed) person, out of the estate, limited to an amount that is just and reasonable in the circumstances of the particular estate Catchwords: Practice - NSW Trustee and Guardian Act - Managed Person - private managers - Remuneration - allowance of just and reasonable remuneration out of managed estate - Regulatory regime Legislation Cited: NSW Trustee and Guardian Act 2009 NSW Cases Cited: Gell v Gell (2005) 63 NSWLR 547 at 553-554 GDR v EKR [2012] NSWSC 1543 CC v RAM [2012] NSWSC 1555 Ability One Financial Management Pty Limited and Anor v JB by his tutor AB [2014] NSWSC 245 Holt v Protective Commissioner (1993) 31 NSWLR 227 at 241-243 Texts Cited: - Category: Principal judgment Parties: NSW Trustee and Guardian Representation: Catherine Phang, Solicitor, of the Office of the NSW Trustee and Guardian File Number(s): -

Judgment 1Questions about whether a private manager of a protected, or other form of managed, estate is entitled to any (and, if so, what) remuneration for the performance of the functions of a manager have been the subject of consideration by the Court in several judgments (including Gell v Gell (2005) 63 NSWLR 547 at 553-554, GDR v EKR [2012] NSWSC 1543, CC v RAM [2012] NSWSC 1555 and Ability One Financial Management Pty Limited and Anor v JB by his tutor AB [2014] NSWSC 245) since the seminal judgment of the Court of Appeal in Holt v Protective Commissioner (1993) 31 NSWLR 227 at 241-243 provided guidance as to the principles governing the appointment of managers of the estates of people in need of protection. 2Prima facie, the office of manager of the estate of a managed person (as defined by s 38 of the NSW Trustee and Guardian Act 2009 NSW), or any analogous office, is a gratuitous one. 3If a manager of such an estate is to be allowed remuneration out of the estate under management there must be an order of the Court, or legislation, permitting it to be allowed. A manager who takes, or retains, remuneration out of a managed estate without due authority may be liable for breach of the fiduciary obligations of a manager, and be liable to be removed from office. 4In response to an observation made in the Ability One judgment [2014] NSWSC 245 at [276], and upon consideration of the orders required to give effect to that judgment, the NSW Trustee and Guardian ("the NSW Trustee") invited the Court to make an order (under s 64 of the NSW Trustee and Guardian Act 2009) providing for it to be authorised, in defined circumstances, to allow a private manager of a managed estate remuneration out of the estate. 5The orders and notations set out below are made today so as to provide a framework within which the NSW Trustee can, in an appropriate case, allow remuneration to a private manager (subject to review by the NSW Civil and Administrative Tribunal, and by the Court in the exercise of its statutory and inherent jurisdiction). 6In accordance with established principle, any such remuneration must be limited to an amount that is just and reasonable in the context of the particular estate; and the NSW Trustee must be satisfied, inter alia, that it is in the best interests of the managed person that remuneration be allowed. 7For reasons that are more fully considered in the Ability One judgment, it remains important: (a) that estates under management be the subject of practical supervision by the NSW Trustee in discharge of its statutory functions; and (b) that persons interested in such an estate have a framework within which decisions affecting the estate can be dealt with in an orderly manner. 8The NSW Trustee has had an opportunity to be heard about, and takes no objection to, the content and form of the orders and notations today made. 9The orders will remain under review in the light of experience. 10The orders may be discharged or amended from time to time, as circumstances may require. 11Having regard to the role of the NSW Trustee in the management, or monitoring, of the estates of managed persons in this state (outlined in M v M [2013] NSWSC 1495), it is important for all persons interested in the due management of such an estate to take into account the activities of, and to endeavour to work constructively with, that corporation.