R by his tutor NSW Trustee v L [2021] NSWSC 1237

R by his tutor NSW Trustee v L [2021] NSWSC 1237

The NSW Trustee was obliged to seek recovery of R's funds appropriated by L and properly discontinued the claim once L provided affidavit material substantially accounting for expenditure of the money on R; it was therefore entitled to have its costs paid out of R's estate on the indemnity basis. L did not establish that removal of the NSW Trustee or her appointment as replacement financial manager would serve R's interests, particularly given family divisions, her antagonism toward the NSW Trustee, her lack of insight into the role of financial manager, and her failure to account for the $95,000 until it was spent. Questions about sale of the Buxton property should proceed through the...

Jurisdiction
Australia
Judgment Date
28 September 2021
Procedural Posture
Equity Protective List Proceedings Concerning Management of a Protected Estate / Principal Judgment Explaining Orders Made on 28 September 2021 After Discontinuance of the Statement of Claim and Determination of the Defendant's Cross Claim
Outcome
The defendant's cross claim was dismissed without prejudice to any entitlement to apply to NCAT for review of any NSW Trustee decision concerning sale of the Buxton property; the NSW Trustee's costs were ordered to be paid out of R's estate on the indemnity basis.
Legal Topics
['management of Protected Estate' 'removal and Replacement of Financial Manager' 'nsw Trustee as Financial Manager' "sale of Protected Person's Property" 'costs in Protective Proceedings' 'review by Ncat']
['equity' 'protective Jurisdiction' 'mental Health' 'guardianship and Financial Management'] ['management of Protected Estate' 'removal and Replacement of Financial Manager' 'nsw Trustee as Financial Manager' "sale of Protected Person's Property" 'costs in Protective Proceedings' 'review by Ncat']

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Procedural Posture

Equity Protective List Proceedings Concerning Management of a Protected Estate / Principal Judgment Explaining Orders Made on 28 September 2021 After Discontinuance of the Statement of Claim and Determination of the Defendant's Cross Claim

Legal Issues

  1. 1 ["Whether the NSW Trustee should be removed as financial manager of R's protected estate and L appointed instead." "Whether any order should be made concerning the sale of R's property at Buxton." "Whether the NSW Trustee was entitled to have its costs of the discontinued statement of claim paid out of R's estate on the indemnity basis." "Whether the defendant's cross claim should be dismissed without prejudice to any entitlement to seek NCAT review of a NSW Trustee decision about sale of the Buxton property."]

Ratio Decidendi

The NSW Trustee was obliged to seek recovery of R's funds appropriated by L and properly discontinued the claim once L provided affidavit material substantially accounting for expenditure of the money on R; it was therefore entitled to have its costs paid out of R's estate on the indemnity basis. L did not establish that removal of the NSW Trustee or her appointment as replacement financial manager would serve R's interests, particularly given family divisions, her antagonism toward the NSW Trustee, her lack of insight into the role of financial manager, and her failure to account for the $95,000 until it was spent. Questions about sale of the Buxton property should proceed through the...

Court Disposition

The defendant's cross claim was dismissed without prejudice to any entitlement to apply to NCAT for review of any NSW Trustee decision concerning sale of the Buxton property; the NSW Trustee's costs were ordered to be paid out of R's estate on the indemnity basis.

Orders

  • ["ORDER that the defendant's statement of claim filed on 17 June 2021 be dismissed without prejudice to such, if any, entitlements the defendant/cross-claimant may have to apply to NCAT for a review of any decision made by the NSW Trustee concerning the sale of the property at Buxton." "ORDER that the NSW Trustee's...