Supreme Court New South Wales Medium Neutral Citation: LP v P & Ors [2018] NSWSC 1168 Hearing dates: 23 – 24 May 2018 Date of orders: 02 August 2018 Decision date: 02 August 2018 Jurisdiction: Equity Before: Hallen J Decision: Orders that the Amended Summons be dismissed. Stands over the proceedings to a date to be fixed at the time of publishing these reasons, to give the parties the opportunity to finalise, with the NSW Trustee and Guardian, the matters referred to in Ex. D and to reach agreement on how the costs of the proceedings are to be paid. Catchwords: MENTAL HEALTH — Protected person — Appointment made in 2012 for financial manager of estate — Application by mother of protected person that the financial manager be removed and that a new nominated financial manager be appointed — Principles governing change of financial manager — Paramount consideration remains welfare, and interests, of protected person — Prudential management requires flexibility, consultation and respect for autonomy. Legislation Cited: Corporations Act 2001 (Cth) Court Suppression and Non-publication Orders Act 2010 (NSW) Guardianship Act 1987 (NSW) Interpretation Act 1987 (NSW) Motor Accidents Compensation Act 1999 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Cases Cited: Ability One Financial Management Pty Limited v JB by his Tutor AB [2014] NSWSC 245 Application of J & K [2009] NSWSC 1453 L v L [2014] NSWSC 1686 MB v Protective Commissioner (2000) 50 NSWLR 24; [2000] NSWSC 717 PB v BB [2013] NSWSC 1223 Re LSC and GC [2016] NSWSC 1896 Re S, An Incapacitated Young Person [2017] NSWSC 859 Re TLH, a protected person [2017] NSWSC 737 SLJ v RTJ [2017] NSWSC 137 M v M [2013] NSWSC 1495 Category: Principal judgment Parties: LP (Plaintiff) L by his tutor Perpetual Trustee Company Limited (first Defendant) KP (second Defendant) WP (third Defendant) MP (fourth Defendant) AP (fifth Defendant) MiP (sixth Defendant) Representation: Counsel: Mr R Wilson SC (Plaintiff) Mr M K Meek SC (first Defendant) Mr C A Lambert (second – sixth Defendants) Ms J Brouwer (NSW Trustee & Guardian) Solicitors: Maurice Blackburn Lawyers (Plaintiff) Makinson d'Apice Lawyers (first Defendant) File Number(s): 2017/54874 Judgment Introduction 1. HIS HONOUR: At the outset, having regard to the legal status of the first Defendant as a protected person, an order prohibiting the publication, or disclosure of the name of the parties, or any details from within the court file, or from the evidence in the proceedings, that either identifies, or tends to identify, him, has been made. 2. Somewhat impersonally, I have assigned an initial to the first Defendant, and initials to the other parties, who are all members of his family, in place of the names of each. Hereafter, I shall refer to each of them by the initial, or initials, throughout these reasons: Court Suppression and Non-publication Orders Act 2010 (NSW), s 7(a). 3. The proceedings, which are in the Protective List of this Court, concern a 37 year old man, L, who, as the parties all agree, lacks capacity by virtue of catastrophic brain injuries that he suffered in a motor vehicle accident in January 2004. He is a "managed person" within the meaning of that term in the NSW Trustee and Guardian Act 2009 (NSW), that is to say, "a protected person … whose estate is subject to management under this Act": s 38. 4. L requires round the clock care, 7 days a week, and is wheelchair bound. He is PEG (percutaneous endoscopic gastrostomy) fed, that is through a tube which is passed into his stomach through the abdominal wall. He has the great misfortune, also, to be "completely dependent for all activities of daily living, instrumental activities of daily living, communication, and participation in social and leisure tasks": Ex. 2D1/3. 5. In short summary, these reasons deal, principally, with the determination of an application by L's mother for the removal of L's financial manager, Perpetual Trustee Company Limited ("Perpetual") and the appointment, in its place, of Australian Executor Trustees ("AET") as L's financial manager "to act in relation thereto under the order and direction of the NSW Trustee and Guardian until further order". (In an Amended Summons, the reference to an order removing Perpetual and the appointment of AET was changed to use the terminology of financial management.) 6. The parties to the proceedings are LP, the Plaintiff, who is L's mother; L, himself (by his tutor, Perpetual), who is the first Defendant; KP, the second Defendant, who is L's father; WP, the third Defendant, who is L's step-mother and KP's second wife; MP, the fourth Defendant, who is L's older sister and a child of LP and KP; AP, the fifth Defendant, who is L's half-brother and a child of KP and WP; and MiP, the sixth Defendant, who is also L's half-brother, and a child of KP and WP. 7. Pursuant to orders made on 19 June 2017, by Lindsay J, the Protective List Judge, the second to sixth Defendants inclusive, were joined as parties to the proceedings. LP filed an Amended Summons on or about, 23 June 2017, adding those Defendants. 8. Despite the number of parties, there were, essentially, three camps, the first, comprising the Plaintiff, who was represented, at the hearing, by Mr R Wilson SC; the second, comprising the first Defendant, by his tutor, who was represented, at the hearing, by Mr M K Meek SC; and the second to sixth Defendants, who were represented, at the hearing, by Mr C A Lambert of counsel. All of the Defendants, however, were united in opposing the relief sought by the Plaintiff. 9. At the hearing Ms J Brouwer, solicitor, attended "in the interests of the NSW Trustee and Guardian", principally as an observer. She informed the Court that Lindsay J had "invited us to come along": T1.35. Every appointment of a manager of a protected estate under the NSW Trustee and Guardian Act (or the Guardianship Act 1987 (NSW)) is accompanied by an order that the estate be subject to management under the NSW Trustee and Guardian Act: Ability One Financial Management Pty Limited v JB by his Tutor AB [2014] NSWSC 245, Lindsay J, at [9]. Importantly, the NSW Trustee and Guardian appeared to have considered it neither necessary, nor appropriate, for it to intervene in the proceedings. 10. Ms Brouwer's attendance was noted, but she did not participate, other than when asked questions by the Court. She did not suggest that the NSW Trustee and Guardian supported the order for the removal of Perpetual as L's financial manager. As the public authority entrusted with monitoring the work of all private managers of protected estates in New South Wales, the Court would have expected that if the NSW Trustee and Guardian had reasons to support LP's claim for relief, because, for example, there were problems of which it had notice in relation to past, present, or prospective, management of L's estate, it would have formally supported her application, or, at least, that it would have been invited by LP to do so. 11. Furthermore, there was no suggestion, in either of the two written reports of the NSW Trustee and Guardian, which appear to have been prepared prior to the matter being set down before me, and a copy of each of which was in evidence, or otherwise, that accounts for L's estate had not been passed for each year since the appointment of Perpetual; or that Perpetual had not been compliant with its obligations as L's financial manager; or that there was any other information known to the NSW Trustee and Guardian that would warrant a review of the continuation of the appointment of Perpetual as manager. 12. It is unfortunate that the proceedings have been made far more complex than they ought to have been. Many collateral disputes of fact, particularly as between LP, on the one hand, and KP and WP on the other, have been raised. The intensity of the family division, and the tension between the family members, is demonstrated, for example, in Paragraph 17 of LP's first affidavit and in many of the emails sent to Perpetual; in Paragraphs 10 to 13 of KP's affidavit; and in Paragraphs 145, 173, 175, 207 and 209 of WP's affidavit. I shall not burden these reasons by setting out the contents of these affidavits as they do not assist, other than to found the basis of my comment. 13. There also appears to be some hostility between MP and LP. MP described their relationship as "tumultuous" prior to 2007, and it appears to have been virtually non-existent since that time. Paragraphs 38 and 49 of her affidavit reveal a similar hostility. 14. By way of further example, the details of which, also, do not bear repetition, one need only consider the response by each of LP and KP to the application made by the other for compensation in respect of care provided to L: Ex. 1D1/106 – Ex. 1D1/128. 15. Perhaps, the intensity of their history of personal disputes and acrimony is demonstrated by the nature of some of the submissions made on behalf of the second to sixth Defendants (despite the suggestion to the contrary): "In seeking the supplementary orders set out below the Family does not wish to engage in the type of unnecessary and unproductive aspersions that the Plaintiff has engaged in the past with respect to her relationship with the remainder of the family and appears to wish to continue with respect to the scandalous statements in her Case Outline as to the Plaintiff and the Second Defendants' Family Proceedings and the legitimacy, or otherwise, of the Fifth Defendant." 1. Without referring to each of them verbatim, I also refer to Paragraphs 9 to 19 of the second to sixth Defendants' written Outline of Submissions. All of these matters do no more than follow a long line of disagreements between the family members. They do not assist. 2. As I did at the hearing, I make clear that I do not propose, and have not attempted, in these reasons, to resolve all of the factual disputes, except to the extent necessary for the proper determination of the real issues in the case. In any event, it would be virtually impossible to do so. 3. Yet, despite the conflict, it appears that there is some truth in the statement, made by WP, that all members of L's family are united in terms of seeking what is for L's benefit in respect of his care, and in acting in his best interests. However, they are, and have been, at odds about what she (LP) and they (KP, WP, MP, AP and MiP) see as being for his benefit and in his best interests. The Nature of the Case 1. As earlier written, the current financial manager of L's estate is Perpetual, which was appointed the financial manager of his estate, pursuant to orders of this Court, entered on 29 June 2012. Order 3 provided that Perpetual be appointed as manager of the estate of L "subject to the order and direction of the NSW Trustee and Guardian". 2. Perpetual is a licenced trustee company under Chapter 5D of the Corporations Act 2001 (Cth) and is the holder of an Australian Financial Services Licence. It has its principal place of business in Sydney. It acts as a trustee of trusts and accepts appointment as a financial manager. It provides "investment and tax advice in connection with its appointment as a trustee and manager". It also provides "investment administration and accounting services, a taxation service, and a full care service, and has access to a range and depth of financial expertise, including its own legal and tax departments and qualified financial advisers and investment consultants". It has a range of other services. 3. By written Consent dated 7 December 2016 (Ex. A), AET consented to being appointed as L's financial manager. It is said to be "one of Australia's biggest and most experienced non-government providers of professional trustee services in Australia" and is "a licensed trustee company under Chapter 5D of the Corporations Act". It is incorporated in South Australia, with its headquarters in Adelaide. 4. For over a decade, AET "has obtained specialist financial advice for its personal injury clients". In 2015, AET "partnered with" Aeran Pty Limited ("Aeran") "so that AET clients would have the benefit of fully independent financial advice by a firm which wholly specialises in personal injury financial advice". 5. Aeran is licenced by ASIC and it has an Australian Financial Services licence number. There is said to be no "financial relationship" and "no conflicts of interest" between AET and Aeran. 6. There was no dispute that each of Perpetual and AET is an experienced financial manager which, routinely, manages large estates for catastrophically injured clients, including those who live overseas and/or who have complex family dynamics. Each is able to manage the affairs of L from Australia, even if he resides in Spain (where L currently resides). The Issues 1. Prior to the commencement of the hearing, the parties had agreed that the issues that lie at the heart of their dispute, and which the Court was to be asked to determine, were: 1. Whether Perpetual should be removed as L's financial manager? 2. If the NSW regime set out in the NSW Trustee and Guardian Act is maintained, should it be supplemented by orders made in the inherent jurisdiction of the Court (affecting L's estate or person or both) in order to protect L's welfare and interests whilst he is resident outside Australia? 3. What orders for the costs of the proceedings should be made. 1. However, at the hearing, these issues were narrowed. 2. In relation to the first issue, which, as has been stated, was the principal issue to be determined at the hearing, it should be noted that Perpetual is not a party and is not named, other than as the tutor for L. The Court was informed that Perpetual, in the interests of L, neither consented to, nor opposed, an order that it be removed as L's financial manager. However, submissions made by senior counsel, on behalf of L, to which reference will be made, make it clear that the replacement of L's financial manager by AET is not supported. 3. It should also be noted, in relation to the first issue, that senior counsel for LP, did not disagree when it was pointed out that no submissions had been made, on behalf of LP, suggesting "that the management of the financial aspects of [L's estate] have been handled badly…": T118.05 – T118.14. I am satisfied that it is not part of LP's case that Perpetual has behaved, or is behaving, in a way that contravenes the authority conferred on it. In other words, the management of the financial aspects of L's estate is not a ground for seeking the removal of Perpetual. 4. In relation to the second issue, the parties were given an opportunity to agree upon the nature of the orders that they wished the Court to consider. On the second day of the hearing, a copy of the plan was tendered, and marked as Ex. D, with the agreement of the parties, and without opposition from Ms Brouwer, it was noted, at T122.09 – T122.33, that: "Subject to any orders of the Court, the plan agreed to by the parties is to be provided to the financial manager and the NSW Trustee and Guardian and to the extent required the approval of the NSW Trustee and Guardian in relation thereto will be sought and the financial manager will use the plan as a guide for the matters included in it." 1. Hopefully, the parties will take the steps that they wish to be adopted, to have the agreed plan brought to the attention of the NSW Trustee and Guardian. If there is a problem about this aspect, any party may apply for additional orders. 2. In relation to the third issue, none of the parties made any specific oral submissions. The general inclination expressed seemed to be to leave the issue of costs until after the determination of the first issue. In the circumstances, I shall follow this course and, again, allow the parties to give consideration to how costs of the proceedings should be borne following these reasons being published. 3. An issue that had been raised by LP concerned fees charged by Perpetual. However, in a Case Outline, dated 9 October 2017, a submission was made on LP's behalf that the more appropriate way to deal with the question of fees was for an analysis to be carried out by a new manager, if appointed. 4. At the hearing, LP's stated position was that she no longer challenged the fees of Perpetual as a matter that required the determination of the Court at this time. 5. L submitted that LP's claim for relief should be regarded as now being finally abandoned and dismissed. As the Amended Summons, filed on 23 June 2017, does not seek any such relief, this issue, if it exists, cannot be determined in these proceedings. 6. A further issue that had been raised prior to the hearing also evaporated. It was common ground, at the hearing, that the current Orders made under the regime set out in the NSW Trustee and Guardian Act should continue, and be maintained, albeit that they may need to be amended if Perpetual is replaced. 7. The issue, initially, arose because L, now, lives in Spain and because the NSW Trustee and Guardian Act does not, in terms, cater for a situation where the protected person lives in a foreign jurisdiction: see, PB v BB [2013] NSWSC 1223. The parties appeared to accept that a "guiding star is the need for a prudential management regime that can be administered, without strife in the simplest and least expensive way, in the interests of" the protected person, and that the inherent jurisdiction of the Court "extends at least as far as making orders respecting the estate of a person in need of protection where either the person, or his, or her, property, is within the territorial jurisdiction of the Court": PB v BB, at [16], [29] – [30]. 8. As none of the parties have sought any order altering the regime set out in the NSW Trustee and Guardian Act, that regime will continue whether or not there is a change of financial manager, and the issue is no longer one that needs to be considered. The Witnesses 1. Apart from family members other than AP and MiP, the following witnesses gave evidence, by affidavit(s), read in LP's case: 1. Elizabeth Brookes, a lawyer and Principal of Maurice Blackburn Lawyers, who acted for LP in the proceedings; 2. Elizabeth O'Brien, a lawyer at Maurice Blackburn Lawyers, with the day to day carriage of the matter, under the supervision of Ms Brookes; 3. Mark McDonough, the National Manager, Compensation Trusts, with AET in Adelaide. He has worked for AET for over 30 years. He is based in Adelaide in the Head Office of AET. He says that if it was "necessary to visit [L] in Spain, AET would seek to recover the cost of travel and accommodation but would not charge any other hourly rate or service fee". 4. Geoffrey Alan Worth, a Senior Relationship Manager at AET. What role, if any, he would play in the financial management of L's estate is not disclosed in his affidavits. 1. Although she did not provide an affidavit, a letter dated 8 May 2017 and one dated 15 August 2017, of Ms Jane Campbell, who is the Principal and a director of Aeran, was read, without objection, as part of LP's case. Ms Campbell is a Certified Financial Planner and a lawyer with a current NSW Practicing Certificate (although she is not currently practicing as a lawyer). She is listed in the ASIC Register of financial advisers. Ms Campbell is said to have met LP on 16 November 2016 to discuss Aeran's services. 2. On behalf of L, the affidavits of the following deponents were read: 1. Saul Ilan Bernstein, the Trust Manager at Perpetual with the day to day carriage of L's financial affairs. He was, as at 1 May 2018, a Risk and Compliance Analyst employed by Perpetual, having been promoted to that position. However, he has retained his day-to-day responsibilities for L and has stated that this "aspect of my position has not changed". 2. Fotini Mastrogianni is the NSW Manager – Advice, employed by Perpetual. She provided a response to Ms Campbell's reports. 1. No deponent was cross-examined, and after the affidavits were read into evidence, and the objections (particularly to the use to which certain parts of the affidavits could be put) were dealt with, the parties commenced oral submissions. (It is clear, particularly in relation to the main protagonists that some of the matters raised in the affidavits and the correspondence annexed to the affidavits is based on conversations with other persons. Other aspects were relied upon as submissions, rather than as proof of the facts asserted.) The Hearing 1. As I have earlier written, the proceedings were made far more complex than they ought to have been. That this is not an unwarranted, or unjustified, comment is demonstrated by the extent of the evidence filed in support of the case advanced by the parties. 2. For LP, senior counsel read 15 affidavits, in chief, or in reply, being four affidavits of LP, two affidavits of Mr Worth, four affidavits of Ms Brookes, one affidavit of Ms O'Brien and four affidavits of Mr McDonagh. In addition, there was tendered a folder of documents (Ex. B), comprising about 130 pages. 3. For L, senior counsel read 5 affidavits in chief, and in reply, being three affidavits of Mr Bernstein, with voluminous exhibits to some of them; and an affidavit of Ms Mastrogianni and an exhibit to that affidavit. In addition, a folder of documents (Ex. 1D1), comprising 457 pages was tendered. 4. For the second to sixth Defendants, counsel read three affidavits, being one from each of KP, WP (comprising, with annexures, 279 pages) and MP. In addition, there was tendered a folder of documents (Ex. 2D1), comprising 247 pages. 5. Relatively few of the documents forming annexures, or exhibits, were actually referred to, by counsel. Regrettably, much of the evidence given was diffuse, and it was only in the written final outline of submissions, that the case being made for the removal of Perpetual became clearer. 6. Mercifully, the hearing was completed within its allotted time of two days. Background 1. It is necessary to trace the history of the matter leading to the commencement of the proceedings. However, it is not necessary to burden these reasons with anything greater than a summary of the background history. 2. The following facts were either not in dispute or should be regarded as the factual findings of the Court. (In relation to the litigation that gave rise to the award of damages in favour of L, I have referred to the unreported decisions identified in the evidence, each of which decisions bears a medium neutral citation that should not be referred to in these reasons as they identify some of the parties, including L.) 3. LP was born in August 1952 and is almost 65 years old. 4. KP was born in June 1945 and is 73 years old. 5. KP and LP married in the United Kingdom in 1978. There were two children of their marriage, namely MP, who was born in July 1979, and L, who was born in April 1981. 6. LP instituted divorce proceedings in 1990. WP was named as the co-respondent in those proceedings. Those proceedings were hard fought and lasted a number of years. The proceedings were the subject of a reported case, to the citation of which I shall not specifically refer for the same reason. 7. (There is clearly a long history of acrimony between LP, KP and WP, the reasons for which are not relevant to these proceedings. Regrettably, one has the strong suspicion that it is this acrimony that has fuelled the approach adopted by them in the proceedings.) 8. KP and WP had two children, together, namely AP who was born in February 1988, and MiP, who was born in February 1994. 9. L and MP lived with LP, initially, after the separation and divorce of their parents, other than for a period of time when, at the age of 13 years, MP lived with KP. 10. In 1996, KP and WP left the United Kingdom to live in Australia, initially, for a few years, but, subsequently, they decided to settle here permanently. KP is an Australian citizen and all of the other family members have dual citizenship. 11. At about the same time, LP left the United Kingdom and moved to Spain, initially for 6 months. L and MP did not go with her. Subsequently, LP decided to remain living in Spain, but she continued to be in regular contact with her children. 12. MP moved to Australia to live with KP and WP in 1999. L moved here, permanently, in 2000. He commenced a degree at the University of New South Wales. 13. LP travelled to Australia to see her children in July 2000. In addition, she saw L, in the UK, at Christmas 2001 and in Portugal in 2002. 14. LP had booked a trip to take MP and L to Byron Bay in 2004. Regrettably, L's motor vehicle accident intervened on 24 January 2004. He suffered catastrophic injuries including severe head injuries, with irreversible brain damage, and became, essentially, a tetraplegic (another term for quadriplegia). 15. The circumstances of the accident were that he was attempting to get into a taxi when it drove away. He either held on to its roof rack, or otherwise became attached to it, as it commenced to move. He remained attached to it whilst it travelled approximately 300 metres along the roadway when he was dislodged from it as it negotiated a speed hump. 16. At the date of the accident, L was working as a data processor for General Electric, having finished his university studies in 2003. He was living with KP and WP, in Paddington, but had planned to move in with a friend in a nearby suburb. 17. All of the family were at his bedside in the days, and weeks, immediately following L's accident. He remained hospitalised for over three months, during which time he had inpatient rehabilitation. He was then a patient at Royal Rehabilitation Centre, Sydney, between April 2004 and the end of February 2005, before moving to the Crest Nursing Home, an aged care facility at Annandale. 18. Approximately four months after the accident, LP returned to Spain for a short period to pack up to return to Australia. Subsequently, she applied for, and in February 2006, was granted, permanent residency in Australia. 19. Proceedings in this Court, in which damages were claimed, were commenced by L, by his tutor KP, in 2005. The proceedings were instituted, initially, against the Nominal Defendant pursuant to s 34 of the Motor Accidents Compensation Act 1999 (NSW), as enquiries made on behalf of L to identify the owner and driver of the taxi, had not proved successful. 20. Sometime later, enquiries by the Nominal Defendant produced some evidence of the identity of the owner and driver of the taxi, and KP, on behalf of L, filed an Amended Statement of Claim on 13 November 2008. 21. The matter was heard, and it was determined, in late 2009. An appeal was successful by the owner/driver, as was a cross-appeal by L, in late 2010, with the result that there was a verdict for L, against the Nominal Defendant, with damages to be assessed. 22. By order dated 23 October 2007, after a hearing on the same day, the Guardianship Tribunal ordered the appointment of the Public Guardian in respect of the decision making functions of "services to which L should have access and health issues". 23. The Tribunal noted that KP and LP had been able to agree as to L's accommodation and about medical and dental treatment. The order was made for a period of 12 months in the hope that within that time they would "again be able to reach ongoing co-operation and compromise in relation to the services [L] should receive." 24. The appointment of the Public Guardian was renewed, continuously, since the initial 2007 order until, in 2015, a variation was made appointing LP as L's guardian for 12 months. The order appointing LP was not renewed thereafter. 25. In about November 2009, LP purchased a home in Quakers Hill, a suburb of Sydney, to enable L to come home between Friday and Sunday, every second week. 26. In June 2011, L moved to a new Aged Care Facility, being "Windward Manor", Opal Aged Care Facility. 27. It is not necessary, so many years later, to regurgitate the issues that arose, between family members, regarding L's care, in the intervening period. In broad summary, there have been continued disputes, principally between LP and KP. In the Review of the Decision completed in April 2015, by the Public Guardian, it was, aptly, recorded: "There is considerable disagreement between [L's] parents about the direction of his care and where he should reside." 1. LP herself confirmed that there had been "considerable disagreement between me and [L's] father and [WP]". (She admitted that she had not discussed the application to remove Perpetual and to have AET appointed with KP, WP or MP.) 2. In about mid-2012, in the common law proceedings in this Court, judgment was entered by consent, awarding $12 million plus costs to L. 3. The orders made in mid-2012 included a direction to the Registrar to pay to Perpetual "all funds held on behalf of [L], being the net proceeds of judgment in the Supreme Court proceedings 2005/xxxx, including any interest accrued". 4. At, or about, the time of the appointment of Perpetual, slightly more than $10,075,734.97 was held for L. 5. Perpetual seems to have been recommended for appointment, principally after KP carried out "an exercise of comparison with similar companies". Indeed, one of the companies with whom L's solicitors met was Australian Executors Trustees ("AET"), which is the trustee company that LP seeks to have appointed in place of Perpetual. 6. In December 2011, Mr McDonough and Ms Campbell had met with KP and with his solicitor to "let us know how much the fees of IPAC [Ms Campbell's company] and [AET] would be should the Court appoint [AET] as trustee." 7. Subsequently, the NSW Trustee and Guardian approved the financial plan made by Perpetual to invest the bulk of the funds in its "SuperWrap" investment product, which consisted of a range of investments including cash, real property, as well as Australian and international shares. The balance of the judgment sum was to be placed in cash management funds and short term deposits, which were to be utilized to meet L's expenditure needs, which, at that time, were estimated to be about $453,000 per year. 8. As at 28 June 2015, the value of the investments held by Perpetual, on behalf of L, was a little over $11.1 million. As at 28 June 2016, the value of L's estate was slightly under $10.7 million. As at November 2017, the value of the investments and property held by Perpetual, on behalf of L, was approximately, $10.8 million. 9. LP returned to live in Spain in February 2012. She returned to visit L in July 2012, and again in January 2013 (at a cost to L of $8,000). Thereafter, Perpetual was authorized to pay LP $10,000 per year, to enable her to visit L, twice per year. In 2013, LP visited him a second time; in 2014, she visited, again, on two occasions, for a total of three months; in 2015, she visited once, for a five month period; and in 2016, she visited, on two occasions, for a total of six months. 10. In 2012, following the resolution of L's damages claim, LP filed an application with the Public Guardian to move L to Spain to reside with her there. KP put forward an alternative proposal which involved L's move to Beresford Hall Aged Care Facility, situated at Rose Bay, which was closer to KP's home in Vaucluse. 11. The Guardianship Division of NCAT appointed the Public Guardian on 4 October 2013 to make decisions on behalf of L in the areas of accommodation, health care and services. 12. On 29 January 2015, under the accommodation function, the Public Guardian published its decision that L reside in domestic style accommodation in Spain, with the support of personal carers and therapy services co-ordinated by LP. 13. In its Reasons, dated 2 March 2015, the Public Guardian set out the extensive list of interviews it had conducted, and that had informed its decision. It provided the factual context, as well as detailed reasons for, its decision. 14. On 27 March 2015, WP lodged a request for an internal review with the Public Guardian. On 23 April 2015, the Public Guardian set aside its initial decision for a period of three months in order to obtain further information about access to health care and therapy services. Further interviews were conducted by, or on behalf of, the Public Guardian. 15. By decision dated 25 September 2015, the original decision of the Public Guardian was upheld. 16. On 14 October 2015, the Public Guardian made a one year limited guardianship order appointing LP in respect of the functions of accommodation, health care, medical and dental consent, services, travel and passport. 17. In March 2016, the NSW Trustee and Guardian approved the request, made by Perpetual, to purchase a property in Spain for L. The estimated cost of the purchase, together with modifications to accommodate L's needs, was estimated, at that time, to be approximately, AUD$1,400,000. 18. In April 2016, the NSW Trustee and Guardian approved a further AUD$151,000 to be spent to cover taxes and related costs of the purchase of that property. 19. In August 2016, the NSW Trustee and Guardian approved the request by Perpetual to pay LP the amount of $221,583.05 for past gratuitous care provided to L. 20. On 12 September 2016, the NSW Trustee and Guardian approved the request by Perpetual to release the amount of $80,000 to cover L's relocation costs to live in Spain. The amount included carer's costs of travelling with L to Spain and the carer's return to Australia. 21. Perpetual has submitted 4 accounts in all, covering the period from 29 June 2012 to 28 June 2016, each of which has been examined, and passed, by the NSW Trustee and Guardian. 22. On 8 February 2017, LP returned to Australia to take L to Spain. L has lived there since 25 April 2017. LP's evidence is that in Spain, L is now happy, in good health (but for a bout of sinusitis) and settled. In addition, there now appears to be stability and certainty of living arrangements. There is no suggestion that L is not well cared for in Spain. 23. LP has given evidence, which I accept, that L is doing well in Spain; that he has been granted disability status, which means he is eligible for a Disability Parking Permit and exemption from certain road and car taxes; that he now has a Spanish National Health Card, which means that certain medications and consumables will be cheaper for him; that she was "awaiting an appointment with the Spanish equivalent of Social Security to see whether he is eligible for certain entitlements such as savings on VAT/IVA taxes on aids and equipment"; and that L "has a good team of carers looking after him. He is out and about regularly enjoying Spanish life". 24. On 1 March 2017, an application by KP, to NCAT, for a guardianship order to be made for L was dismissed. 25. L remains single and has no children. LP's Position vis-à-vis Perpetual 1. It is impossible, bearing in mind the form of the complaints (some of which are identified in correspondence between LP and Perpetual) to address the litany of complaints made by LP. I take what follows as the major complaints made by her about the conduct, whether action or inaction, of Perpetual in acting as L's financial manager. 2. In summary, LP submitted: 1. Her relationship with Perpetual has broken down irretrievably in terms of a mutually trusting and open relationship; 2. A change of financial manager is for the benefit, and in the interests, of L; and 3. AET is a "suitable person" within the meaning of s 41(1)(b) of the NSW Trustee and Guardian Act to be appointed as the financial manager of L's estate in place of Perpetual. (She accepted that AET will require Aeran Pty Limited ("Aeran") "to provide advice in respect of, and [to] manage the investment of" L's estate.) 4. Like Perpetual, AET would be subject to the same fiduciary duty, the Prudent Person Rule in respect of investments, and (subject to order of this Court) the same reporting requirements to the NSW Trustee as Perpetual. 1. In relation to her complaints, LP gave evidence, principally by reference to correspondence, of what were said to be delays in the decision-making by Perpetual, and in communicating with her. She stated that she had a "feeling" of mistrust and ill-ease in communications, and referred to the regular staff turn-over, saying that she "found it stressful dealing with 'fill-in' staff", following one particular staff-member (Mr Matt Pearson) leaving in early 2016. However, she did admit, in her affidavit of 17 August 2017, that "this has settled down somewhat over recent months". 2. LP sent what she described as "letters of dissatisfaction" to Perpetual, one in late August 2013 and another in June 2016. Although the first letter was written well before the commencement of the proceedings, a copy of the letter is in evidence and it was referred to. The letter relates, primarily, to the plan that LP had to move L to Spain and what was said by her to be opposition to that plan and the concern of Perpetual to ensure that other members of L's family were consulted (although it was put as a concern about litigation if Perpetual went against KP's wishes). Complaint was also made in the letter that, even after 17 weeks, Perpetual "still has not submitted its considerations as to the affordability of my Proposal to the Office of the Public Guardian". 3. LP also expressed her disappointment that Perpetual did not "appear to hold my son's best interests close to its corporate heart" (whatever that might mean). 4. Perpetual responded to LP's first letter of complaint by letter dated 12 September 2013. In that letter, Perpetual stated that it was "sorry for the timeliness, inconsistency and transparency of the correspondence that has been provided in response to your queries" and that "[w]hile we neither condone nor excuse this, we think it worthwhile to confirm the process required in order to move [L] to Spain". The letter then went on to set out the steps taken by it, including the submission of written advice to the Public Guardian, and confirmed that it was awaiting a response. The letter ended with a sincere apology for the "obvious distress this has caused you" and advised of the Financial Ombudsman Service (with address, telephone number and website provided), which was identified as "an external dispute resolution scheme that provides assistance to consumers and investors to help them in resolving complaints relating to members of the financial services industry…". 5. LP, apparently dissatisfied by the apology, responded by email dated 15 September 2013, which was addressed to Mr Mark Smith (Group Executive Perpetual Private). She complained that there was an issue with the lack of communication from "those who have been placed in charge of [L's] financial matters". Also in her response, LP raised "the apparent bias placed towards the views of [L's] father whenever I queried matters…". This issue related to LP's request to be paid "for putting in time as L's carer". Finally, she complained of the delay in expense payments and correspondence from Perpetual, when staff members are on leave, stating that "to keep clients waiting is absolutely unethical". She suggested that the services of Perpetual should be conducted "within a reasonable time frame". (She suggested that a reasonable time frame for "necessary processes" would be "straight away".) 6. The June 2016 letter, to which reference was made, dealt with her complaints regarding the departure of Mr Pearson, and also of Ms Nicole Woodward, and to the purchase of L's property in Spain. 7. There was some evidence that in about March 2016, Mr Pearson had left the employ of Perpetual. LP complained that his "position remained empty until July 2016" and that she "was advised, upon HAVING TO ASK, that Matthew Lansdell would be 'filling' in for [Mr Pearson] until a replacement for him was found" (her emphasis). 8. Ms Woodward, another employee, with whom LP had dealings, left in May 2016. LP described Ms Woodward as "an absolute breath of fresh air and fabulous to work with". LP said that she had been notified of Ms Woodward's departure by automated reply email. No person from Perpetual had made contact to inform her of the departure before LP received the automated reply email. 9. LP also complained that Ms Woodward had been "instructed by Perpetual not to advise any of her clients prior to her departure" and that "it took until September for Perpetual to advise me that Saul Bernstein would be taking over the day to day running of [L's] account". 10. In regard to the last assertion, an email dated 28 July 2016, from LP to Mr Lansdell contains "thanks for advising that Saul is now going to be taking over Nicole's former role": Ex.2D1/1. (This statement appears inconsistent with the complaint made by LP on this topic.) 11. By email dated 9 March 2016, Ms Woodward had advised LP that "NSWTG has approved for us to proceed with the purchase for [L]" and "we also have the upfront approval to perform the modification works up to $125k". (It is to be noted that the email sent by Ms Woodward was sent on the same day as the approval was received.) 12. In an attachment to an email to her solicitor referring to the June 2016 letter, LP commented on her complaints and noted "Result: matters in regard to the property transaction started to be properly addressed, although action on all matters remained appallingly slow". She also suggested that some matters in her letter remained unaddressed, such as the "provision to me of Perpetual's charges for handing [L's] account". (Although, as will be read, these charges have been disclosed since the letter was written.) 13. LP also complained, subsequently, about the actions of the lawyers instructed by Perpetual, both in Australia, and in Spain, to act on the purchase of the property in which L was to live. She stated that as a result of the dilatory conduct, L had lost 20,000 euros on the purchase. She identified "a long chain of emails attesting to this between the Spanish lawyer, myself, Perpetual and Richard Lyons". (The Court was not taken to any of this "long chain of emails".) 14. LP also asserted that since she had been back in Spain with L, she had continued "to have to spend many hours, more than I believe I should, in trying to resolve issues with Perpetual and obtaining prompt attention to [L's] needs". She described having been contacted by third parties in regard to what were said to be three outstanding accounts, in order for her to "follow up" payment by Perpetual. 15. LP submitted, also, that she was "dissatisfied" with the way Perpetual charges a fee in relation to the property in Spain that has been purchased for L. She expanded on this issue in the attached document which she sent via email to her solicitor on 13 March 2017, which was said to summarise the "most important points" in relation to her dissatisfaction with Perpetual. 16. In that document, LP stated: "Perpetual insists on making an annual charge for property management to [L's] account (on a monthly basis). I have disputed the necessity of these charges since I am the one that has to carry out whatever is needed by way of property management. It is, anyway, impossible for Perpetual to physically interact with various town hall or community offices in Spain." 1. In relation to receiving an indication of the fees and charges of Perpetual, LP stated that whilst she "had received details of Perpetual's charges on or about 15 December 2016 from Saul Bernstein … [t]his information was not forthcoming until I had requested it multiple times over a period of five and a half months, including by way of correspondence to Geoff Lloyd, CEO of Perpetual…". 2. LP also asserted that "Overall, I believe that AET has provided more transparency in relation to the costs of managing [L's] estate than has currently been the case with Perpetual". 3. In her affidavit sworn on 27 April 2017, LP raised her concern that she believed her "relationship with Perpetual has irrevocably broken down." She then stated: "I am not confident that Perpetual will adequately communicate with me in Spain and I believe this will negatively impact on L as I am responsible for his care. … I feel it is entirely appropriate that a professional Trustee company such as AET should be overseeing and managing L's estate. L needs a financial manager who can work with me flexibly and not delay in relation to information and communication which has been the case with Perpetual in the past." 1. In her affidavit sworn on 17 August 2017, the following passage was read as a submission (not as proof of fact) in respect of LP's relationship with Perpetual: "My relationship with Perpetual is difficult and strained and has been so since Perpetual was appointed as Financial Manager. The reason I began to consider a different Financial manager was due to my long-standing dissatisfaction with Perpetual's communication, its high turnover of staff and its lack of responsiveness in relation to the plan for L to move to Spain with me." 1. In her affidavit sworn 21 March 2018, LP stated that since her last affidavit, "I have dealt with Shivani Singh and Saul Bernstein, as needed, usually by email". However, she then added that Ms Singh had left the employ of Perpetual, and that "I was not given the courtesy of a personal phone call from management and/or Shivani's replacement advising of the departure. As at the date of swearing this affidavit, I have still not received any proactive communication about the departure." In fact, on 4 March 2018, LP had received an automated email reply advising her that Ms Singh had left Perpetual. 2. LP then submitted that the staff turnover was "excessive and not in [L's] best interest". She further submitted that she has had to correspond with eight people from Perpetual in relation to L in "just under six years", including "Travis Read, Charu Mathur, Matt Pearson, Nicole Woodward, Matthew Lansdell, Shivani Singh, Saul Bernstein and now Shivani's replacement". 3. LP also stated that "I have found it difficult forming a trusting relationship with the current managers". Why, or how, this difficulty was exhibited, so far as the current manager, Mr Bernstein, was concerned, is not disclosed in LP's evidence. 4. It appears, however that LP relies on Mr McDonough's evidence that: "In many cases the role of manager involves acting as a sounding board for family members – in effect 'a trusted adviser' so that they can talk through issues and any concerns or crisis as they arise. It is the candour that arises from this trust that gives a manager the best means of monitoring the welfare of the protected person." 1. As an example of a lack of trust, LP relied upon evidence given by WP about a conversation that WP had with Charu Mathur, at Perpetual: "I had a conversation with Charu Mathur on or about 6 July 2017 at Perpetual's office in Sydney, just before she left Perpetual to take up a new position elsewhere. She took me aside and said words to this effect: 'The past care claim of $20,000 submitted by [LP] was suddenly increased to $220,000 after a meeting between [LP] and Matt [Pearson]. He had taken her out to lunch and obviously had given her advice. You know at the time I asked to be taken off [L's] case and hence Nicole Woodward was subsequently appointed. [L's] case was affecting me personally especially in relation to [LP's] claim for reimbursement of expenses. She claimed everything she possibly could. In fact, I rejected one such claim for a T-shirt for [L] because I thought that a mother should at least pay for something for her son from her own money. I was also concerned about the appropriateness of the reimbursements and the difficulties for [KP] and your family because of the decision to allow [L] to be moved to Spain. I was very fond of [KP], and how he stood up for [L's] best interests.'" 1. It was submitted by counsel for LP that this conversation "raises significant doubts about Perpetual's ability to handle the complex family dynamics that exist in [L's] case". 2. The reporting of this exchange was said to be the "the final blow" to the relationship of LP and Perpetual. Furthermore, it was submitted that the issues raised by Ms Mathur have not been subsequently addressed by Perpetual. 3. It is relevant that Ms Mathur has since left the employ of Perpetual. 4. (Due to Ms Mathur's involvement with L's estate from at least 2012 to 2015, I accept that hearing of such a conversation would cause distress to LP. However, in the context of the conversation, where Ms Mathur took WP aside before leaving her position, it seems likely these views might have been the personal views of Ms Mather.) 5. LP also stated that, following discussions with Mr McDonough of AET, she was confident that "I will deal mostly with Mark and receive prompt attention". As well, she pointed to the evidence given by Mr McDonough to the effect that AET deliberately seeks to align clients with relationship managers with a longstanding history of employment with AET and that whilst it was inevitable, that over time, staff would leave and new staff would join AET, it has built a very stable and experienced team of relationship managers to work with compensation clients. This includes core staff members with between 10 and 30 years of employment with AET, including Mr McDonough who has held the position of National Manager, Compensation Trusts with AET for 10 years and will be the primary contact person at AET, should it be appointed Financial Manager. 6. Additional email correspondence, which it is not necessary to repeat, between LP and Perpetual, does, on many occasions, reflect expressions of distress at the lack of funds in L's account; complaints about LP's need to use her own funds for expenses (including paying carers), and requests for a "float", so that shortfalls do not occur. 7. In relation to her dealings with Perpetual, in her most recent affidavit, LP stated that she is now being paid "a regular monthly sum for [L's] expenses", which "has made things easier as I do not have to constantly seek funds and/or reimbursement of funds"; that she has put in place what is to occur in the event that she becomes sick or dies, which involves her local solicitor being contacted, with him to contact Perpetual and MP immediately; and that her local solicitor has a support network to assist in co-ordinating L's care. 8. LP gave evidence that there was no proposal to seek a change to the NSW Protected Estates Management regime pursuant to the NSW Trustee and Guardian Act. She stated that if AET were appointed L's financial manager, it would operate subject to the orders and direction of the NSW Trustee and Guardian, including the lodgement of annual accounts with the NSW Trustee and Guardian; it would prepare an Annual Expenditure Plan (annual budget) which is also a requirement of the NSW Trustee and Guardian; it would liaise with other family members, and would provide them with trust account statements each month showing income and expenditure for that month. AET would also provide annual budget and investment plans; it would meet with family members, at least once a year, on a routine basis and more often if required or if a problem arose. 9. The parties agreed that there may be a saving in the annual fee charged by AET (T31.03 – T31.42) as compared with Perpetual as financial manager. (However, it was asserted by counsel for the first Defendant, and counsel for the second to sixth Defendants, that even if there was a saving, that "would only demonstrate one part of the picture to be presented to the Court": T31.44 – T32.01.) 10. However, in LP's Amended Outline of Submissions, at [18], senior counsel submitted: "The fee savings were not the motivation for the application to change managers, but they are undoubtedly in the best interests of the first defendant, who is a young man with high ongoing care needs." 1. During the discussion on this topic, senior counsel for LP stated, at T29.21 – T29.23: "I didn't think it was a significant issue. My submission on the facts was there may be a saving but I didn't think the issue of the saving was a significant issue." 1. Finally, it should be noted that LP submitted that in the event that Perpetual was not removed as the financial manager, it should operate in respect of the terms set out in Ex. C. That document, dated 24 May 2018, provided that: "Plaintiffs [sic] submissions re: relationship with Perpetual 1. Any communications Perpetual staff have with LP are to be kept confidential unless LP provides consent for Perpetual staff to pass the contents of her communications to KP and MP. 2. Perpetual staff are not to have any direct communication with WP without the consent of LP in relation LP, L and/or L's financial affairs. 3. LP is to be copied into any written correspondence, whether by email or letter to KP and MP. 4. If LP consents to Perpetual having any direct communication with WP, this is to be via email or letter and LP is to be copied into this correspondence. 5. Perpetual staff are not to meet with any members of the … Family without LP being made aware. If any meetings occur, LP is to be sent a record/minutes of any such meeting and advanced notice of any such meeting. 6. Perpetual is to involve LP in any discussions or plans in relation to the strategic planning of L's financial arrangements including any strategies related to cash-flow and change in investments. 7. If there are any further changes to Perpetual's case manager/s, Perpetual, at its own expense is either to fly LP to Australia to meet with the personnel or to come to Spain and visit LP and L. 8. If Perpetual breaches any of the above requirements, this will be cause for change of financial manager. 9. To provide clearer access to resolution of LP's [sic] ideally by someone at Board level. 10. To have the ability to seek significant financial penalties if Perpetual fail to act or engage quickly with legitimate transfers. 11. To have an agreement that if they fail on several occasions per year to resolve disputes, then they automatically will be dropped and the Family have no recourse whatsoever to appointing someone new." 1. It is clear that LP's requirements, as set out above, would make the position of Perpetual virtually untenable. In my view, Ex. C is a completely unrealistic and unworkable view of the requirements to be imposed upon any financial manager and the Court should not impose upon Perpetual the sort of requirements identified in this document. L's Position 1. In relation to changes of staff, senior counsel for L submitted, perhaps, unsurprisingly, that changes in staff are a normal, and unavoidable, incident for any company providing financial management services, not merely Perpetual. Not unnaturally, also, it was acknowledged that there were, or may have been, transition issues, but that such issues, whilst frustrating to the recipient of services, are not, generally, unless prolonged, a basis for change of management. 2. In any event, L tendered a document described as a Summary of Perpetual Personnel and the Responsibilities for L (Ex. 1D2) which showed that there has been one employee described as an "Advisor", one Trust Manager between 2012 and 2015 (Ms Mathur), a different Trust Manager between 2015 and 2016 (Ms Woodward), an Acting Trust Manager (Mr M Lansdell) for three months in 2016, and since August 2016, Mr Bernstein has been the sole Trust Manager with the day to day responsibility for L. (Ms Singh, who was the Manager of the Health & Personal Injury (H&PI) Division of Perpetual, briefly assumed the day-to-day responsibility for L, in February 2017, while Mr Bernstein was on annual leave.) 3. (Of course, various managers at Perpetual have also had responsibility and oversight in relation to L in supervising employees responsible for the day-to-day management of L's estate. These included Mr Pearson (who was the H&PI Division Manager until 28 March 2016) and Ms Singh (who was the H&PI Division Manager from about October or November 2016 to 25 February 2018).) 4. In relation to Mr Bernstein, it is to be noted that whilst he has investigated some matters of increased medical expenditure to be paid to a company of which LP was the director, he concluded, in a "Letter of Update" dated 13 January 2017, addressed to the NSW Trustee and Guardian, having "reviewed all supporting documentation" that he was "in support of the increased cost attributed to care over the period previously noted. The care costs have proven to be a medical necessity". 5. Furthermore, there is email correspondence dated 28 May 2017, between Mr Bernstein and LP, following a request for a payment of an invoice, in which LP thanked him and commented that she "wasn't expecting a 'communication' from you on a Sunday!" 6. There is other correspondence, on 30 May 2017, in which LP sent Perpetual "receipts for the building/internal modification works carried out" on L's property. There was a response, dated 31 May 2017, in which LP's email was acknowledged, and the statement was made, by Perpetual, that "[w]e will process a reimbursement". 7. In relation to the delay in enabling the purchase of the property in Spain for L, it was pointed out that "one of the tasks of a financial manager is to undertake a degree of due diligence in relation to a property purchase particularly one in a foreign country". I accept the practical sense of this submission. 8. Ultimately, it was submitted that there was no good reason to remove Perpetual and that there was nothing to suggest that it was in L's best interest to do so. The Position of the Other Defendants 1. The second to sixth Defendants, did not support LP's application to remove Perpetual and to appoint AET. They submitted that "Perpetual have always acted in the best interests of [L] and [have] been more than helpful in keeping the Family informed with respect to expenditures approved by Perpetual from [L's] estate and it would not be in [L's] best interests to incur the costs and disruption to the management of his estate by the appointment of a new Financial Manager". 2. They pointed to LP's evidence and submitted that Perpetual had gone above, and beyond, its obligations as a Financial Manager and have assisted both L and LP by: 1. Meeting with and assisting LP to prepare a financial proposal for the relocation of L to Spain and the costs of the running of the Spanish property prior to LP filing an official application with the Public Guardian seeking permission to remove him from the jurisdiction; 2. Assisting LP in quantifying, and bringing, her past care claim; 3. Arranging, and obtaining, the necessary documentation from NSW Roads and Maritime Services to enable L's car to be certified as being compliant and registrable in Spain. This involved having to directly petition the New South Wales Minister for Roads to obtain a letter specifying the same; 4. Obtaining certification from the ATO of L's non-resident tax status so that his car and household goods could be released from Spanish customs; 5. Obtaining Insurance policy refunds for L's vehicle; 6. Assisting KP in quantifying, and bringing, his past care claim; and 7. Assisting LP and L to obtain funds held by his previous superannuation fund. They pointed to the contents of Ex. SIB-1 to Mr Bernstein's affidavit affirmed 7 April 2018, at 9 – 16. 1. They contrasted the evidence of AET, to the effect that it would be necessary to incur the costs of appointing an expert, or experts, to assist in preparing the annual budget, monitoring L's medical care and welfare, implementing the exit plan and implementing the property plan. 2. In respect of AET requiring expert assistance in preparing the annual budget, the second to sixth Defendants also pointed to Mr McDonough's affidavit sworn 15 March 2018, at [6], which states: "In the event those providing care cannot pull together the information required for the budget, because of their inexperience and/or the complexity of the protected person's needs, our practice is to bring in an appropriate expert to assess the needs and prepare a budget. The preparation of a budget is a task that is driven by the manager and not by those providing care." 1. In respect of AET requiring expert assistance in monitoring L's medical care and welfare, the second to sixth Defendants referred to the same affidavit at [11] and [28]: "Our usual practice with a client who is within Australia is to see them in their home on an 'as needed' basis and, at minimum once per annum. In the early years of assuming management, visits will usually be more frequent, or may become more frequent due to situational factors e.g. a relationship breakdown, a deterioration in health. These home visits enable AET to monitor a protected person's welfare and interests. Because this is more difficult with [L] being overseas, if appointed AET would engage an appropriately qualified and independent specialist to provide regular reports in relation to [L's] health, care, living arrangements and welfare. … In terms of updating the family as to what is occurring in [L's] life, if we were appointed as manager we would provide them with a copy of the independent expert's report(s) obtained as to [L's] welfare." 1. In respect of requiring assistance in implementing an exit plan, the second to sixth Defendants pointed to Paragraph [41], which references AET's relationship managers taking steps to: " … (ii)(b) Make contact with the carers and/or a suitable (and pre-identified and briefed) expert/agency to ensure that [L's] needs were met in the immediate short-term. (c) Notify the expert who was doing the regular reviews of [L] to step in and monitor the situation and implement any additional care that was needed. …" 1. Finally, in respect of expert assistance in implementing a property plan relating to the property in Spain, the second to sixth Defendants noted Paragraph [45] of Mr McDonough's affidavit: "In relation to the monitoring of [L's] real estate the family is under the misapprehension that AET would not have a regular review undertaken as to the state of the property. We would, however AET do not charge a fee for this. We would engage an expert in Spain to assess the property annually with a focus on safety and upkeep and to provide a report and photos. This would be a disbursement to the estate not a fee paid to AET." 1. They advanced the following reasons for not removing Perpetual: 1. Perpetual has been involved with L since 2012 and because it was directly involved, it knows of the circumstances behind L's move to Spain. 2. Perpetual also understands the investment structure of L's estate and has access to L's Cash Transaction Accounts for the purposes of monitoring the expenditures that have been approved. Given its considerable, and intimate, knowledge of L, and his financial affairs and estate, it would take a new financial manager some time to acquire the same knowledge and understanding of L's financial, and other, needs, and the investment strategy to ensure that the financial needs could best be met. 3. It is essential now, and in the foreseeable future, that members of L's family, including LP, have continuity of financial management, instead of having to establish a relationship with a new financial manager and different employees. 4. It is in L's best interests, especially now that he is living in Spain and under the care/co-ordination, principally of LP, that Perpetual remains his financial manager. Mr Bernstein, in particular, has had dealings with LP for about two years and, in that time, appears to have been able to resurrect a relationship with LP. By way of example, WP pointed to correspondence passing between LP and Mr Bernstein and/or Ms Singh between May and September 2017. 5. LP is described as having sent "a deluge of emails" which has been responded to by Perpetual staff. 6. AET does not provide a complete range of in-house financial services, and will sub-contract fund management services to Aeran. Fund management requires direct management. L's estate, at least as to about $2 million, is invested in direct shareholding. AET adopts a "passive investment regime". 7. AET is not obliged to continue to use Aeran with the result that there may be other changes in the future brought about by the professional relationship between them changing. 8. Whilst LP is content to rely on "assurances" given on behalf of AET promising her prompt attention in respect to payment for L's needs, compliance with such assurances cannot be regarded as absolute, and must depend upon the specific issue. Furthermore, the evidence, overall, adequately demonstrates that Perpetual, at least since Mr Bernstein's appointment, if not before, has been very regular and responsive to emails sent by LP. 1. There is no evidence that Perpetual has not managed L's funds in his best interests and not maximised his investments. 2. Perpetual has undertaken to ensure that the property purchased for L in Spain is free from occupational health and safety hazards by conducting annual property inspections and rectifying any such hazards. This property care service fee is about $4,539.57 and such fee is necessary as L is now the owner of a property. As L's financial manager, it has an obligation to ensure that the Spanish property is being maintained properly. 3. No compelling reasons to change the financial manager have been advanced by LP. The current relationship is now working, and other family members are happy with the professionalism, and discretion, applied by Mr Bernstein, who has gone above and beyond to assist in non-financial matters on L's behalf (e.g., ATO and RMS issues) at no cost. 4. Perpetual, through Mr Bernstein, has been in regular communication with KP, WP and MP since his appointment and they have "every faith in his abilities and his professionalism". 5. Perpetual has now established an accurate budget with LP, thereby helping LP to manage her own, and L's, day to day expenses. The Principles 1. There can be no doubt that the Court has the power to remove Perpetual as manager of L's estate and to appoint AET in its place: s 41(2) and s 64 of the NSW Trustee and Guardian Act; s 47(1)(b) of the Interpretation Act 1987 (NSW); MB v Protective Commissioner (2000) 50 NSWLR 24; [2000] NSWSC 717; Application of J & K [2009] NSWSC 1453 at [4]; M v M [2013] NSWSC 1495. 2. Furthermore, it should also be stressed that "given the protective, purposive character of protected estate management, no manager has an entitlement to remain in office": L v L [2014] NSWSC 1686, per Lindsay J, at [40], citing Ability One Financial Management Pty Ltd v JB by his Tutor AB, at [151]–[153]. 3. There was really no dispute about the relevant principles that apply in regard to removal. Although not regarded as rules, or even guidelines, the framework within which the Court approaches a matter such as this have been set out in a number of cases, the most recent of which the parties adverted to was Re TLH, a protected person [2017] NSWSC 737, in which Lindsay J wrote at [4] – [12]: "The jurisdiction exercised by the Court is governed by the purpose it serves (namely, the provision of care for those not able to take care of themselves): Secretary, Department of Health and Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218 at 258-259; NSW Trustee and Guardian Act 2009 NSW, section 39. Consideration of the welfare and interests of the particular protected person concerned is paramount: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238B-C and 241A-D and F-G; NSW Trustee and Guardian Act 2009 NSW, section 39(a). Building upon the seminal judgment of the Court of Appeal in Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238-241, M v M [2013] NSWSC 1495 at [50] set out 'guidelines' that might be borne in mind when the Court is called upon to make a decision about the identity of a manager of a protected estate or the substitution of one manager for another. Those 'guidelines' have been drawn to attention in subsequent judgments, particularly Ability One Financial Management Pty Limited v JB by his tutor AB [2014] NSWSC 245 at [36] (which must be read with Re Managed Estates Remuneration Orders [2014] NSWSC 383); Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [51]-[52] ; Re LSC and GC [2016] NSWSC 1896 at [40]-[41]; and SLJ v RTJ [2017] NSWSC 137 at [20]-[26]. The following propositions, extracted from M v M, can be taken as uncontroversial: (a) An order for the appointment, removal or replacement of a particular manager is not to be made merely because a party, or some other person, seeks it, consents to it or acquiesces in it. The jurisdiction the Court is called upon to exercise is not a 'consent jurisdiction'. The Court is bound to exercise an independent judgement because of the public interest element in the decision to be made and the possibility, if not the fact, that the protected person lacks the mental capacity requisite to informed decision-making. (b) Any decision made affecting the welfare or interests of a protected person must be made in a manner, and for a purpose, calculated to be in the best interests, and for the benefit, of the protected person. (c) Care needs to be taken in all decision-making affecting a protected person to focus on the facts of the particular case, preferably with due consultation with the protected person, his or her family and carers who may be well placed to inform the Court of the protected person's particular circumstances. (d) Decisions need to be made in the context of a prudential management regime that can be administered, without strife in the simplest and least expensive way, in the interests of the protected person. (e) Recognition needs to be given to the status and obligations of a manager of a protected estate as the holder of a fiduciary office. (f) The primacy given to the protective purpose of the Court's jurisdiction carries with it, as a correlative, the absence in any manager (public or private) of a legal entitlement to be, or to remain, manager of a particular protected estate. (g) A decision about whether a manager should be replaced may need to be approached differently from one made about the identity of an appointment as an initial manager because of a perceived need to identify an acceptable reason (ie, one governed by the purpose of the protective jurisdiction and consideration of the best interests of, and benefits available to, the protected person) for change. Depending on the facts of the particular case this may, but will not necessarily, involve recognition that an applicant for change bears, at least, a forensic onus to establish a case for change. (h) Although disputes about the management of a protected estate may at times need to be determined in an adversarial setting, an exercise of protective jurisdiction is not inherently, or necessarily, adversarial in nature. (i) Part of the role of the Court in its exercise of protective jurisdiction is to give consideration to the manner and form of a decision-making process calculated to ensure that the protective purpose of the jurisdiction is duly served. (j) In the context of the current legislative and administrative regime for management of protected estates in NSW, the Court will ordinarily require that any substantial decision it may be called upon to make affecting a protected estate, beyond the routine, is made on notice to the NSW Trustee, allowing the NSW Trustee to be heard in an appropriate case, and inviting its assistance where necessary. In Holt v Protective Commissioner (1993) 31 NSWLR 227, the Court of Appeal liberalised the jurisprudence relating to the selection, removal and replacement of protected estate managers. Since that time legislative and administrative developments have accommodated, and encouraged, a migration from public to private management of protected estates. Those developments have been accompanied by an appreciation of a need for there to be greater flexibility than formerly may have been the case in effecting a change of managers, public or private. In two recent judgments relating to the competitive environment in which licensed trustee companies now operate, attention has been drawn to an ongoing need to place each individual protected person, and his or her family and carers, centre-stage: Re LSC and GC [2016] NSWSC 1896 at [40]–[41]; SLJ v RTJ [2017] NSWSC 137 at [20]–[26]. The environment in which licensed trustee companies operate has been rendered more competitive by two particular developments. First, the liberalising effect of Holt v Protective Commissioner (1993) 31 NSWLR 227 in encouraging families to be more actively involved in the management of estates than was formerly the case. Secondly, as evidenced by Ability One Financial Management Pty Ltd v JB (by his tutor AB) [2014] NSWSC 245, the entry into the field of private managers for reward who are not licensed trustee companies. Beneficial though increased competition in this realm may be, care needs to be taken to ensure that commercialisation of the provision of protected estate services does not subordinate, but rather serves, the interests of persons under protection. The time has passed, if it ever existed, when an institutional manager (public or private) could view its business as one, essentially, of funds management rather than, substantively, the business of a service provider. Families of persons under protected estate management are commonly anxious to preserve an estate (with maximum returns and minimum expenses), acutely conscious of the possibility that, at some indefinite future time, the estate might be exhausted in the midst of ongoing need. Families are also commonly sensitive to the possibility that they are taken for granted by institutional managers, especially if prompt attention is not given to their requests for assistance, and if personnel changes (or decision-making structures) within the institution deny them a means of establishing a personal relationship with an experienced manager familiar with their particular case." 1. There was no dispute that before making any orders, the Court must be satisfied that such orders are in the best interests, or for the benefit, of L. That test is an objective one, concerned with the best interests, or benefit, of L, and not the best interests, or the benefit, of another person. If the Court comes to the view that it is in L's best interests, or for his benefit, it is "duty bound" to revoke the order previously made and make another order. 2. Lindsay J in Re S, An Incapacitated Young Person [2017] NSWSC 859, at [54], has also noted another matter of importance: "Whatever their form, protective orders need to be measured, not only against what is in the interests, and for the benefit, of the person in need of protection (Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238 and 241–242; GAU v GAV [2016] 1 Qd R 1 at [48]) but also considerations of utility (Re W and L [2014] NSWSC 1106; CJ v AKJ [2015] NSWSC 498 at [51])." 1. Whilst "benefit" is not defined in the cases, it is clear that it is a word with a broad meaning and would include not only direct financial benefit. In this case, it has been put that the benefit of continuity of approach to the financial management of L's estate would outweigh the immediate financial benefit (if there is one). 2. Counsel for LP had submitted that the relationship between the Plaintiff and Perpetual was of importance because of her role as carer to L. It was further submitted that through her role of facilitating the care of L, she will have the most contact with Perpetual, and "any shortcoming in service will be most felt by her". Finally, it was put that as LP is L's carer, companion and mother, it was "reasonable to assume that a reduction in strain upon [LP] … must benefit her interactions with [L]". 3. One other aspect of the protected person's best interests will involve a consideration of the views of family members, particularly those who are involved in the care and welfare of that protected person. That aspect has been considered in the present case. 4. It is to be remembered that there is an "ongoing need to place each individual protected person, and his, or her, family and carers, centre-stage": Re TLH, at [9]. Such a consideration will usually involve a protected person, and his or her family, and carers, having the opportunity to consider for themselves whether the change is in the best interests, and for the benefit, of the protected person: Re LSC and GC [2016] NSWSC 1896 at [41]; SLJ v RTJ [2017] NSWSC 137, at [26]. 5. However, the view of family members, and carers, is not determinative, but is one aspect going to the paramount consideration of ensuring the welfare and best interests of the protected person. All aspects and factors must be balanced by the Court, so that it may reach its own view on what is in the best interests of L. 6. Of course, a change in financial manager for L was not the collective view of L's family. Indeed, it is solely the view of LP that a change will be in the best interests of L. Determination 1. It is clear that LP's case is not one in which she has asserted, let alone tried to establish, that Perpetual, as the financial manager, is incompetent, or that it has acted, in a relevant way, improperly or unlawfully. Nor is it a case in which it has been asserted by LP that Perpetual faces a conflict of interest and duty which prevents it from continuing to act as the financial manager of L. 2. Furthermore, as stated, there is no suggestion that accounts for L's estate have not been passed for each year since its appointment; or that Perpetual has not been compliant with its obligations as L's financial manager vis-à-vis the NSW Trustee and Guardian; or that there was any other information available to the NSW Trustee and Guardian that would warrant a review of the continuation of the appointment of Perpetual as manager. 3. Rather, bearing in mind the reasons advanced, LP appears to be relying upon a passage from Re TLH, at [12], which is in the following terms: "The time has passed, if it ever existed, when an institutional manager (public or private) could view its business as one, essentially, of funds management rather than, substantively, the business of a service provider. Families of persons under protected estate management are commonly anxious to preserve an estate (with maximum returns and minimum expenses), acutely conscious of the possibility that, at some indefinite future time, the estate might be exhausted in the midst of ongoing need. Families are also commonly sensitive to the possibility that they are taken for granted by institutional managers, especially if prompt attention is not given to their requests for assistance, and if personnel changes (or decision-making structures) within the institution deny them a means of establishing a personal relationship with an experienced manager familiar with their particular case." 1. It is in the context of the business of a service provider that LP's reasons should be noted and considered. After all, the principal bases advanced by her for the removal of Perpetual are her frustrations with Perpetual, the delays in its decision making and in its communication with her, and also its staff turnover. 2. As LP is the person who has the day to day care (with the aid of carers) of L, her views should be given very serious consideration. But, there are also other family members, who, whilst they do not have the same involvement in L's life since he moved to Spain, have expressed views that should also be considered. Yet, as stated above, neither the views of LP, nor those of the other family members, are determinative or of paramount importance. 3. In every case, the paramount consideration is whether an order for a change of manager is in the interests, or for the benefit, of the protected person. In deciding what is in L's best interests, or what is for his benefit, the Court will have regard to all the circumstances. It must be shown, forensically, by a consideration of all of the evidence, that L's best interests will in some way be advanced, or promoted, by removing the existing financial manager and appointing someone else in its place. 4. Of course, the standard of proof is the usual civil standard, namely the balance of probabilities. It does not have to be clear and convincing or compelling. However, the Court should be comfortably satisfied that an order replacing the financial manager is in the interests, or for the benefit, of the person in need of protection and that to do so will also be of utility. 5. Whilst a financial manager should endeavour to be wholly aloof from family disputes and should not side with one family member over the other, this does not mean that the financial manager should not inform family members of requests being made by other family members, or that it should not consider the factual merits of any request made, weigh up competing arguments, and having done so, express the opinion that an argument is more persuasive, and, for articulated reasons, should grant, or reject, the request. 6. L's estate, and, until recently, his circumstances, are complex, and that has required strategic decisions in relation to the financial management to be considered carefully. One would expect L's financial manager to have consulted, and worked with, his family members in relation to these matters. 7. An assertion by a family member that the financial manager appeared to be biased in coming to a conclusion, is of no assistance unless the nature of the conduct relied on is identified and the connection between that conduct and the departure from impartial decision-making is articulated. Here, this has not occurred. 8. Indeed, in hindsight, many of the requests made by LP have, after consideration, been accommodated. In this case, in considering all of the evidence, neither the conduct of, nor the departure from, impartial decision-making, by Perpetual, has been established. 9. It cannot be doubted that LP's evidence overall demonstrates her significant sense of frustration, particularly, at various times, from the appointment of Perpetual in 2012, and from about 2016 regarding staff changes. Yet, whilst her correspondence reveals that sense of frustration, objective facts should also be noted. 10. Between about September 2013 and March 2016, LP had dealings with Mr Pearson, who, although not responsible for the day to day handling of L's estate, had acted as the supervisor to the Trust Manager responsible for L. LP appears to have had no problems with him. Indeed, one of her complaints is that he left the employ of Perpetual. His responses to LP's correspondence were said, by her, to be prompt, and their dealings were cordial and respectful. 11. Between June 2015 and May 2016, LP dealt with Ms Woodward. I have referred to LP's description of her earlier in these reasons. 12. Then, in about July 2016, Mr Bernstein became the person at Perpetual with whom LP had dealings. The sense of frustration that LP may have felt earlier, at least as evidenced in the email correspondence, has diminished, to a significant extent, following his appointment as the Trust Manager and his involvement in the day to day management and affairs of L. 13. Indeed, the more recent email correspondence between them clearly demonstrates that there exists, now, a cordial relationship between them. They appear to be corresponding regularly and in a manner that shows mutual understanding and respect. It hardly demonstrates an irretrievable breakdown of the relationship with Perpetual. 14. Even if I were to be satisfied that there had been friction between LP and some of the employees of Perpetual, I would also need to be satisfied that the friction, whatever its cause, would impede the proper management of L's property and his financial affairs. There is no evidence that satisfies me that it has done so. To the contrary, it seems like all of the causes of friction have been worked through, albeit not in the manner, or with the speed, that LP considers appropriate. 15. I must also consider the context of the complaints made by LP. In that context, some of LP's complaints reveal difficulties that might simply occur in the ordinary course of financial management. 16. Between 2012 and late 2015, there were many disputes about L existing between the family members. Prior to this time, LP and KP had been in frequent disagreement about the type of treatment services from which L would benefit and who should provide such services. 17. Between 2012 and the date of L's move to Spain, LP travelled between Spain and Australia regularly, and often, more than once a year and for several months at a time. The peripatetic existence, no doubt, contributed to the emotional strain on her that already must have existed as a parent of a catastrophically injured young man. 18. Furthermore, the significant conflict between LP and other family members, continued, during this period in relation to whether L should be moved to live in Spain, an application that LP made, the first time, in 2012. On this topic, as between family members, what was in the best interests of L, was, again, hotly contested. There were allegations and counter-allegations made that included a lack of bona fides on the part of both LP and of KP. There was a request for a review following the initial decision of the Public Guardian to have L move to Spain. 19. Also, there was a serious issue being agitated about the past care claims that were made by both LP and KP. In respect of both issues, each opposed the proposals of the other. 20. The confirmation of the Public Guardian's decision in September 2015 had taken approximately 9 months to finalise, following which another issue was created, being the purchase of accommodation for L in Spain. 21. In this regard, no doubt, LP was anxious for arrangements to be made as quickly as possible and accommodation to be purchased so that when L arrived in Spain, he would have a settled place to live. 22. However, it was not until March 2016 that the NSW Trustee and Guardian gave its approval for the purchase of the home in Spain. The delay (if it be a delay) was not a matter that was caused by Perpetual. Perpetual approved the purchase of the property for L in April 2016, following which it was required to investigate and implement the procedures by which the property would be secured. The matters it raised had to be confronted. 23. In September 2016, a home for L in Spain was purchased, the purchase was completed in October 2016 and, in March 2017, L departed Australia. 24. Then, there were associated issues and arrangements to be made to ensure that whilst living in Spain, L's needs could be met. This prompted further dispute between family members because of some expressed concern that LP had set up a company to provide services for L, which raised a conflict of interest. Again, the issues raised had to be confronted by Perpetual. 25. During the whole of the period, whilst all of these disputes about L were occurring, some accounts to be paid to LP, and to others, were not paid as promptly as they might have been. 26. In all of these things, whilst there was a sense of urgency exhibited by LP, the same sense of urgency could not be expected to have been exhibited by Perpetual, which, as L's financial manager, had particular duties to perform and complete. It was obliged to satisfy itself that the income and the capital assets of L's estate were properly devoted to his interests. Furthermore, employees had to read a volume of correspondence, not only from LP, in order to consider the merits of what was being put. No doubt, this was not always an easy task, or one that could be attended to with the alacrity that LP required. 27. Especially where, as in this case, the bulk of L's estate is made up of a verdict calculated by reference to his expectation of life and as compensation for injuries, disabilities, pain and suffering and loss of the enjoyment of life, it was also appropriate for Perpetual to ensure that the capital and income should be expended, as intended, to advance the quality of his life, whilst, at the same time, ensuring that it would not be exhausted whilst he had an ongoing need for care. 28. Serious consideration, and, no doubt, legal advice, was required for the purchase of a property, using trust assets, outside the jurisdiction, in Spain, and steps had to be taken, otherwise, to ensure that the property purchased would suit the needs of L. Perpetual seems to have attended to the matters reasonably promptly. 29. Now, L is living securely, and it would seem, happily, in Spain. There should not be dispute about many of the issues that had previously caused disharmony between the parties and between LP and Perpetual. The correspondence passing between LP and Perpetual, particularly since about March 2017, reveals a degree of calmness and co-operation. 30. Senior counsel appears to appreciate that whilst "at present, [LP's] role is one of full time case manager, in addition to her hours as carer … in time, the case management aspect of her role will demand less hours once the numerous tasks associated with establishing L in his new life and home are complete": Paragraph [61] of LP's Amended Case Outline dated 26 April 2018. 31. There is really no dispute that, currently, L is happy and healthy and his needs are being met. 32. I have not given very much weight to the possibility that there might be a reduction of the level of professional fees if AET were appointed. LP's senior counsel seems to have accepted that a potential saving (if, indeed there is such potential) is not of significance in determining whether Perpetual should be removed. Additionally, the involvement, in these proceedings, of the NSW Trustee and Guardian, which has a role in considering the charges made by Perpetual, and which has examined and passed various accounts submitted by Perpetual, should not be forgotten. 33. In all the circumstances, and guided always by the welfare and best interests of L as the paramount consideration, I am not satisfied that the relationship between LP and Perpetual has broken down irretrievably, or that a change of financial manager is for L's benefit, or in his best interests, or that to change financial managers would be of utility. 34. It seems to me that the evidence, overall, requires the conclusion that, whilst there may have been tensions in the past between LP and Perpetual, at the date of the hearing and for some time before, there exists, and has existed, a prudential management regime that is being administered, generally, without strife, and in a way that is simple and expedient. I am not satisfied that there is any acceptable reason for replacing Perpetual as the financial manager of L and appoint AET in its place, as the financial manager of L, and I do not propose to do so. 35. I shall allow the parties an opportunity to finalise, with the NSW Trustee and Guardian, the matters referred to in Ex. D and to attempt to reach agreement on the questions of the costs of the proceedings. At the time of delivering these reasons, I shall also appoint a mutually convenient date for any argument about costs. 36. The Court orders: 1. The Plaintiff's Amended Summons be dismissed. 2. Stands over the proceedings to a date to be fixed at the time of publishing these reasons, to give the parties the opportunity to finalise, with the NSW Trustee and Guardian, the matters referred to in Ex. D and to reach agreement on how the costs of the proceedings are to be paid. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2018