CD & Anor & EF & Anor (No. 2) [2019] NSWSC 337

Supreme Court New South Wales

Medium Neutral Citation: CD & Anor & EF & Anor (No. 2) [2019] NSWSC 337 Hearing dates: 8 October & 13 November 2018; further written submissions received 22 March 2019. Date of orders: 01 April 2019 Decision date: 01 April 2019 Jurisdiction: Equity - Protective List Before: Slattery J Decision: Order that the plaintiffs' and the first defendant's costs of these proceedings, excluding any costs associated with the investigation and recovery of moneys associated with the first defendant's administration of the second defendant's power of attorney to the first defendant ("the excluded costs") be paid out of the second defendant's estate. The payment of the plaintiffs' and first defendant's costs out of the second defendant's estate shall have priority only after all expenditure directed to the health and welfare of the second defendant. Costs are reserved in relation to all excluded costs which amount to 15 per cent of each party's costs to date. New South Wales Trustee and Guardian's (NSW TAG's) proposal for the future management of the second defendant's estate is adopted. Catchwords: PROTECTED PERSONS - second defendant incapable of managing the second defendant's affairs - NSW TAG appointed as receiver and manager of the second defendant's estate - Public Guardian appointed as the second defendant's committee of the person with plenary authority in relation to the second defendant's person - in the Court's first judgment orders made for the continuation of the Public Guardian as the Second Defendant's committee of the person - what costs orders are now appropriate in respect of the costs of the proceedings. INCAPABLE PERSONS - management of estates - plaintiffs fail in application for appointment as manager of the second defendant's estate - NSW TAG continues for the time being as manager of the second defendant's estate - Court indicates that the second plaintiff, a grandchild of the second defendant, may after a period of delay be appointed as manager of the second defendant's estate - the NSW TAG's investigation into the first defendant's administration of a Power of Attorney from the second defendant ("the investigation") continues after the production of voluminous documents to the NSW TAG - NSW TAG puts supplementary submissions as to the adoption of a different structure during the period of the investigation to that foreshadowed by the Court - what structure should the Court adopt and over what time period for the future management of the Second Defendant's estate. Legislation Cited: NSW Trustee and Guardian Act 2009, ss 40, 41 (1)(b) Cases Cited: CD v EF & Anor [2018] NSWSC 848 Re Application for Partial Management Orders [2014] NSWSC 1468 Category: Costs Parties: Plaintiff: CD Second Plaintiff: GH First Defendant: EF Second Defendant: AB, by their tutor Jeremy Neil Glass Representation: Counsel: Plaintiffs: N. Kirby First Defendant: J. Van Aalst Second Defendant: H. Bennett Solicitors: Plaintiffs: Anthea McIntyre, McIntyre Legal Pty Ltd First Defendant: , John Hertz, John Hertz & Associates Second Defendant: Tamara Jayne Goodwin, Glass Goodwin Public Guardian: Ms B Williams (Acting Principal Guardian) New South Wales Trustee and Guardian: Ms R. Sawtell File Number(s): 2017/310133 Publication restriction: No