AI v ADC [2007] NSWSC 505

AI v ADC [2007] NSWSC 505

The Court would not appoint the trustee company while it intended to manage the protected person's assets by constituting the proposed trust, because a manager under the Protected Estates Act 1983 is not a trustee and has no power or need to declare a trust over the protected person's property; the proposed trust deed also contained provisions inconsistent with proper management of a protected estate, including general beneficiaries, discretionary payment provisions, amendment powers and trustee powers inconsistent with court control.

Jurisdiction
Australia
Judgment Date
14 May 2007
Procedural Posture
Applications Under the Protective Estates Act 1983 for Declarations Under Section 13 That the Defendant Is Unable to Manage His or Her Own Affairs and for Orders Under Section 22 Appointing ANZ Executor and Trustee Company Limited as Manager / Proceedings Adjourned to Be Put Into Order
Outcome
Proceedings stood over; the Court indicated it would make the appointment if there is evidence that the trustee company and the plaintiff are content to proceed on proper management lines.
Legal Topics
['protected Estates Act 1983' 'appointment of Manager' 'trustee Company as Manager' 'managed Estates and Trust Estates' 'proposed Declaration of Trust Over Managed Estate Assets']
['mental Health' 'protected Estates' 'equity'] ['protected Estates Act 1983' 'appointment of Manager' 'trustee Company as Manager' 'managed Estates and Trust Estates' 'proposed Declaration of Trust Over Managed Estate Assets']

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Procedural Posture

Applications Under the Protective Estates Act 1983 for Declarations Under Section 13 That the Defendant Is Unable to Manage His or Her Own Affairs and for Orders Under Section 22 Appointing ANZ Executor and Trustee Company Limited as Manager / Proceedings Adjourned to Be Put Into Order

Legal Issues

  1. 1 ['Whether a trustee company appointed as manager of a protected estate may declare a stand alone trust over the assets committed to it for management' 'Whether the proposed trust deed was appropriate for assets of a protected person managed under the Protected Estates Act 1983' 'Whether the trustee company should be appointed as manager in light of its stated intention to constitute a trust']

Ratio Decidendi

The Court would not appoint the trustee company while it intended to manage the protected person's assets by constituting the proposed trust, because a manager under the Protected Estates Act 1983 is not a trustee and has no power or need to declare a trust over the protected person's property; the proposed trust deed also contained provisions inconsistent with proper management of a protected estate, including general beneficiaries, discretionary payment provisions, amendment powers and trustee powers inconsistent with court control.

Court Disposition

Proceedings stood over; the Court indicated it would make the appointment if there is evidence that the trustee company and the plaintiff are content to proceed on proper management lines.

Orders

  • ['Proceedings adjourned to be put into order' 'Matter stood over']