CU v Protective Commissioner [2008] NSWADT 36

CU v Protective Commissioner [2008] NSWADT 36

The decisions refusing ex gratia payments and taking no further action about the burial plot were the correct and preferable decisions because the evidence and legal advice did not justify payment or proceedings, any recovery prospects were poor or not financially worthwhile, and the cost and risk of litigation would likely exceed the disputed amount. The decision not to take further action to recover documents was not correct because documents relating to Mrs A appeared to exist and the Protective Commissioner, as financial manager, was entitled to them; the Protective Commissioner should take all necessary steps to obtain those documents.

Jurisdiction
Australia
Judgment Date
21 January 2008
Procedural Posture
Review of Decisions of the Protective Commissioner Concerning Management of Mrs A's Estate / Decision After Hearing
Outcome
Three decisions affirmed; one decision set aside and substituted with a decision requiring the Protective Commissioner to take all necessary steps to obtain documents relating to Mrs A to which it is entitled.
Legal Topics
['protective Commissioner Powers as to Property' 'ex Gratia Payment' 'alleged Misappropriation of Funds' 'burial Plot' 'recovery of Documents and Possessions' 'financial Interests of Protected Person']
['administrative Law' 'protected Estates' 'financial Management'] ['protective Commissioner Powers as to Property' 'ex Gratia Payment' 'alleged Misappropriation of Funds' 'burial Plot' 'recovery of Documents and Possessions' 'financial Interests of Protected Person']

Case Brief

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Procedural Posture

Review of Decisions of the Protective Commissioner Concerning Management of Mrs A's Estate / Decision After Hearing

Legal Issues

  1. 1 ['Whether the Protective Commissioner should make an ex gratia payment to CU of $15,000.00 plus interest relating to an alleged 1981 loan.' 'Whether the Protective Commissioner should make an ex gratia payment to Mrs A of $150,000.00 for funds allegedly misappropriated by Mr B.' 'Whether the Protective Commissioner should take further action about the burial plot in which Mr B is buried.' 'Whether the Protective Commissioner should take further action to recover documents and possessions relating to or belonging to Mrs A.']

Ratio Decidendi

The decisions refusing ex gratia payments and taking no further action about the burial plot were the correct and preferable decisions because the evidence and legal advice did not justify payment or proceedings, any recovery prospects were poor or not financially worthwhile, and the cost and risk of litigation would likely exceed the disputed amount. The decision not to take further action to recover documents was not correct because documents relating to Mrs A appeared to exist and the Protective Commissioner, as financial manager, was entitled to them; the Protective Commissioner should take all necessary steps to obtain those documents.

Court Disposition

Three decisions affirmed; one decision set aside and substituted with a decision requiring the Protective Commissioner to take all necessary steps to obtain documents relating to Mrs A to which it is entitled.

Orders

  • ['The decision of the Protective Commissioner to refuse to give CU an ex gratia payment of $15,000.00 plus interest is affirmed.' 'The decision of the Protective Commissioner to refuse to give Mrs A an ex gratia payment of $150,000.00 to compensate her for funds which were allegedly misappropriated by Mr B, is...