Re Application of Martin Fowler [2015] NSWSC 466

Re Application of Martin Fowler [2015] NSWSC 466

Mr Fowler was entitled to be eligible for remuneration because he accepted appointment as ES's financial manager in circumstances where the Tribunal and parties expected that he would charge appropriate fees, the NSW Trustee had no concern about his suitability and no substantive objection, remuneration was in ES's interests, and the appropriate quantum could be determined by the NSW Trustee. The unresolved insurance issue justified requiring clarification but did not justify refusing approval.

Jurisdiction
Australia
Judgment Date
24 April 2015
Procedural Posture
Application by a Private Financial Manager for an Order Authorising Remuneration Out of a Protected Estate Under the NSW Trustee and Guardian Act 2009 (nsw). / Supreme Court of New South Wales, Equity Division; Procedural Ruling and Orders Made on 24 April 2015.
Outcome
Application granted; orders made allowing the plaintiff just and reasonable remuneration out of the defendant's estate subject to conditions, requiring accounting to the NSW Trustee, awarding costs from the estate, and granting liberty to apply.
Legal Topics
['remuneration of Financial Managers' 'managed Estates' 'nsw Trustee and Guardian' 'professional Indemnity Insurance' 'passing of Accounts']
['guardianship' 'equity' 'protected Estates'] ['remuneration of Financial Managers' 'managed Estates' 'nsw Trustee and Guardian' 'professional Indemnity Insurance' 'passing of Accounts']

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Procedural Posture

Application by a Private Financial Manager for an Order Authorising Remuneration Out of a Protected Estate Under the NSW Trustee and Guardian Act 2009 (nsw). / Supreme Court of New South Wales, Equity Division; Procedural Ruling and Orders Made on 24 April 2015.

Legal Issues

  1. 1 ["Whether the plaintiff, as private financial manager of ES's protected estate, should be authorised to receive just and reasonable remuneration out of the estate." "Whether the NSW Trustee and Guardian's concern about clarification of the plaintiff's professional indemnity insurance position should prevent approval of the remuneration application." 'Whether the proposed remuneration rates should be left to the NSW Trustee and Guardian to assess as to quantum.']

Ratio Decidendi

Mr Fowler was entitled to be eligible for remuneration because he accepted appointment as ES's financial manager in circumstances where the Tribunal and parties expected that he would charge appropriate fees, the NSW Trustee had no concern about his suitability and no substantive objection, remuneration was in ES's interests, and the appropriate quantum could be determined by the NSW Trustee. The unresolved insurance issue justified requiring clarification but did not justify refusing approval.

Court Disposition

Application granted; orders made allowing the plaintiff just and reasonable remuneration out of the defendant's estate subject to conditions, requiring accounting to the NSW Trustee, awarding costs from the estate, and granting liberty to apply.

Orders

  • ['Note the orders and notations made in the judgment reported as Re Managed Estates Remuneration Orders [2014] NSWSC 383 (2 April 2014).' "Order, subject to further order, due performance by him of his obligations as a manager of the defendant's estate, and his ongoing liability to account for estate property, that...