W v H [2014] NSWSC 1696

Supreme Court New South Wales

Medium Neutral Citation: W v H [2014] NSWSC 1696 Hearing dates: 16 November 2014 Decision date: 28 November 2014 Jurisdiction: Equity Division - Protective List Before: Lindsay J (in chambers) Decision: Orders made approving a family settlement relating to management and disposition of property of a protected person Catchwords: SUCCESSION - Wills, Probate and Administration - Protective jurisdiction - Allowance of provision for family out of protected estate - Statutory will - Approval of family settlement - Principles applicable

MENTAL HEALTH - Guardians, committees, administrators, managers and receivers - Management and administration of property - Allowance of provision for family out of protected estate - Approval of family settlement - Principles applicable

PRACTICE - NSW Trustee and Guardian Act - Management and administration of property - Allowance of provision for family out of protected estate - Approval of family settlement - Material considerations Legislation Cited: NSW Trustee and Guardian Act 2009 NSW Guardianship Act 1987 NSW Succession Act 2006 NSW Cases Cited: Ability One Financial Management Pty Limited and Anor v JB by his tutor AB [2014] NSWSC 245 at [143]-[149] and [151]-[154]) Andrew v Andrew (2012) 81 NSWLR 656 E (Mrs) v Eve (aka Re Eve) [1986] 2 SCR 388 at 407 and 410; 31 DLR (4th) 1 at 14 and 16 Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [134]-[144] and [258 Estate of Scott; Re Application for Probate [2014] NSWSC 465 at [104]-[108] Ex parte Whitbread (1816) 2 Mer 99; 35 ER 878 Ex parte Whitbread in the Matter of Hinde, a Lunatic (1816) 2 Mer 99; 35 ER 878 Griffin v Union Trustee Co of Australia Limited (1947) 48 SR (NSW) 360 at 363; 65 WN (NSW) 5 at 7 Griffin v Union Trustee Company of Australia Limited (1947) 48 SR (NSW) 360 at 363 and 365; 65 WN (NSW) 5 at 7 and 8 Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D and 241G-242A In re Darling (a person of unsound mind) (1888) 39 ChD 208 In re Evans (a person of unsound mind) (1882) 21 ChD 297 In the Matter of Blair, a Lunatic (1836) 1 My&Cr 300 at 302-303; 40 ER 390 at 391 In the Matter of Thomas, a Lunatic (1846) 2 Ph 169; 41 ER 906 M v M [2013] NSWSC 1495 at [50](a) - (d Osborne v Smith (1960) 105 CLR 153 at 158-159 PB v BB [2013] NSWSC 1223 at [27]-[30], [34], [38] and [56] Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19-20 Protective Commissioner v D (2004) 60 NSWLR 513 at 540 [149]-542(156), 543 [165] -[166] and 544 [171]-545 [173] Re DJR and the Mental Health Act 1958 [1983] 1 NSWLR 557 at 564E-G; Re ES and the Mental Health Act 1958 [1984] 3 NSWLR 341 at 343B-344D Re Eve [1986] 2 SCR 388 at 409-411 and 425-427; 31 DLR (4th) 1 at 16-17 and 28-29 Re Fenwick (2009) 76 NSWLR 22 at [170]-[176] Scott v Scott [2012] NSWSC 1541; 7 ASTLR 299 at [287] Secretary, Department of Family and Community Services v K [2014] NSWSC 1065 Secretary, Department of Health and Community Services v JWB and SWB (Marion's Case) (1992) 175 CLR 218 at 258 Szozda v Szozda [2010] NSWSC 804 Texts Cited: Oxford Dictionary of National Biography (Oxford University Press, 2004), pp 220-221 HS Theobold, The Law Relating to Lunacy (Stevens & Sons, London, 1924) Category: Principal judgment Parties: Plaintiff: Locally-based son/manager of protected person First Defendant: Partner of protected person Second Defendant: Family company of plaintiff/lender to protected person Third Defendant: NSW Trustee and Guardian Fourth Defendant: Step-daughter of protected person Fifth Defendant: Queensland-based son of protected person Sixth Defendant: UK-based son of protected person Representation: Counsel: Plaintiff: TD Castle First Defendant: G Sirtes SC and NCT Bilinsky Second Defendant: mentioned by plaintiff Third Defendant : - Fourth Defendant: C Birtles, solicitor Fifth Defendant : mentioned by plaintiff Sixth Defendant : mentioned by plaintiff Solicitors: Plaintiff: Elliot Tuthill First Defendant: Broun Abrahams Burreket Second Defendant: Pikes & Verekers Lawyers Third Defendant: NSW Trustee & Guardian (Attention Catherine Phang) Fourth Defendant: Teece Hodgson & Ward Fifth Defendant: Atwood Marshall Sixth Defendant: Hayden Fowler Corbett Jessop File Number(s): 2014/00148579