Angius v Salier

HER HONOUR: By notice of motion filed in court today, the NSW Trustee and Guardian (NSW Trustee) is seeking a revocation of orders that were made on 25 November 2019 by which the NSW Trustee was appointed as the plaintiff’s tutor for the conduct of these proceedings. The application for revocation of the appointment of the NSW Trustee as tutor is, in effect, on the basis that there is no utility in the NSW Trustee being named as the tutor in the proceedings because it has no power to act as tutor in the absence of a financial management order or other guardianship order.

In submissions that have been made in support of the application by the NSW Trustee, it is noted that it is entirely a creature of statute and has no power outside the powers conferred by the NSW Trustee and Guardian Act 2009 (NSW) (the Act). The functions of the NSW Trustee are specified in s 11 of the Act (headed ‘General trustee and other functions’):

The NSW Trustee may engage in supplemental, incidental, or consequential acts as may be necessary in the exercise of its functions under the Act (see s 10 of the Act).

The NSW Trustee characterises broadly its functions under the Act as threefold: first, the provision of trustee services, largely specified in Ch 3 of the Act; second, the provision of financial management services, as noted in Ch 4 of the Act; and third, estate planning services, such as for the preparation of wills, powers of attorney, and appointments of enduring guardians. It is noted that there are general powers available to the NSW Trustee as specified in s 16 of the Act, whether the NSW Trustee is acting either in a trust capacity or in a protective capacity.

However, the position of the NSW Trustee is that there is no function in the Act that allows it to act solely in the capacity as tutor, and it submits that it is only in the context of a financial management order that the NSW Trustee can (or perhaps I would interpose to say “should”) be appointed as a tutor pursuant to the Uniform Civil Procedure Rules 2005 (NSW). It is accepted that the consent of a financial manager under the rules can be dispensed with and reference is made to what was said by Lindsay J in A v A [2015] NSWSC 1778 (at [22] to [26]) in that regard:

There are instances where there can be dispensation with the rules in relation to the appointment of a tutor in relevant cases (see Mao v AMP Superannuation Ltd [2015] NSWCA 252). Reference is also made to the decision of the Court of Appeal in Bobolas v Waverley Council [2012] NSWCA 126, where an individual who had consented to her appointment to act as tutor for her mother was appointed in a proceedings in the Court of Appeal in circumstances where there was already in existence a financial management order appointing the NSW Trustee as the manager of Mrs Bobolas’ estate and the trustee had declined to consent to act as tutor in the appeal.

The Court of Appeal has made clear that there cannot be bifurcation in the decision that a person is under a legal capacity (therefrom requiring under the rules an appointment of tutor), and the appointment of the tutor itself.

In the present circumstances there has been no application for appointment of a financial manager. The basis on which a tutor was appointed related to a difficulty in obtaining instructions by the plaintiff’s solicitor from the plaintiff but there was no finding of legal incapacity as such.

I consider that, given the legitimate concerns on the part of the NSW Trustee as to whether it has power to act as the tutor in the absence of a financial management order and in the circumstances of this case, the appointment of the NSW Trustee as tutor for the plaintiff for the conduct of these proceedings should be revoked, and I will so order.