T v Mrs F & Ors [2005] NSWSC 781

T v Mrs F & Ors [2005] NSWSC 781

The evidence did not establish that Mrs F engaged to pay the grandchildren's school fees out of her separate estate, nor a moral obligation in respect of future fees; therefore, the Protective Commissioner does not have power under the Act to pay the fees, and the declaration sought was not granted.

Jurisdiction
Australia
Judgment Date
02 August 2005
Procedural Posture
Protective Proceedings / Motion for Declaration and Directions
Outcome
Declaration sought in paragraph 1 of the Notice of Motion dismissed; balance of notice of motion stood over.
Legal Topics
['protected Persons' 'statutory Interpretation' 'powers of Protective Commissioner' 'trusts']
['mental Health Law' 'equity'] ['protected Persons' 'statutory Interpretation' 'powers of Protective Commissioner' 'trusts']

Case Brief

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Procedural Posture

Protective Proceedings / Motion for Declaration and Directions

Legal Issues

  1. 1 ["Whether the Protective Commissioner has power under the Protected Estates Act 1983 to pay school fees for the protected person's grandchildren from her estate" 'Whether evidence is sufficient to show the protected person entered into an engagement to pay school fees from her estate' "Meaning of 'engagements' under s28(1)(a) of the Protected Estates Act 1983"]

Ratio Decidendi

The evidence did not establish that Mrs F engaged to pay the grandchildren's school fees out of her separate estate, nor a moral obligation in respect of future fees; therefore, the Protective Commissioner does not have power under the Act to pay the fees, and the declaration sought was not granted.

Court Disposition

Declaration sought in paragraph 1 of the Notice of Motion dismissed; balance of notice of motion stood over.

Orders

  • ['Dismiss the claim in paragraph 1 of the notice of motion of 28 June 2005.' "Stand over the balance of the notice of motion to 12 September 2005 with liberty to file an amended notice of motion returnable on that date and liberty to restore the motion to the list before that date on any Monday on three days'...