GDR v EKR [2012] NSWSC 1543

GDR v EKR [2012] NSWSC 1543

Ability One Financial Management Pty Ltd cannot be appointed as financial manager of the defendant's estate unless and until it obtains an Australian financial services licence. Appointment of a private manager for remuneration is permissible if in the best interests of the protected person and authorised by the Court. Any conflict of interest arising from commission payments must be resolved by rebating such amounts to the managed estate.

Jurisdiction
Australia
Judgment Date
14 December 2012
Procedural Posture
Application for Declaration and Orders in Protective Jurisdiction / Principal Judgment With Interim Orders Made; Liberty to Apply or Restore
Outcome
No appointment of Ability One Financial Management as financial manager at this stage. NSW Trustee and Guardian remains interim receiver and manager. Liberty to apply or restore once financial services licence is obtained.
Legal Topics
['financial Management of Protected Persons' 'appointment of Private Financial Manager' 'statutory Requirements for Financial Managers' 'remuneration of Private Managers' 'conflict of Interest in Fiduciaries']
['guardianship' 'equity'] ['financial Management of Protected Persons' 'appointment of Private Financial Manager' 'statutory Requirements for Financial Managers' 'remuneration of Private Managers' 'conflict of Interest in Fiduciaries']

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Procedural Posture

Application for Declaration and Orders in Protective Jurisdiction / Principal Judgment With Interim Orders Made; Liberty to Apply or Restore

Legal Issues

  1. 1 ['Whether the defendant is incapable of managing her affairs' 'Whether Ability One Financial Management Pty Ltd should be appointed as financial manager' 'Whether Ability One Financial Management requires a financial services licence' "Whether a private manager may be remunerated from the protected person's estate" 'Whether Ability One Financial Management is in a position of conflict of interest and duty']

Ratio Decidendi

Ability One Financial Management Pty Ltd cannot be appointed as financial manager of the defendant's estate unless and until it obtains an Australian financial services licence. Appointment of a private manager for remuneration is permissible if in the best interests of the protected person and authorised by the Court. Any conflict of interest arising from commission payments must be resolved by rebating such amounts to the managed estate.

Court Disposition

No appointment of Ability One Financial Management as financial manager at this stage. NSW Trustee and Guardian remains interim receiver and manager. Liberty to apply or restore once financial services licence is obtained.

Orders

  • ['Liberty to apply or restore the matter.' "NSW Trustee and Guardian appointed interim receiver and manager of the defendant's estate." "If Ability One Financial Management obtains a financial services licence, anticipated orders include declaration of incapacity, appointment as manager, payment of plaintiff's costs...