Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: RL v NSW Trustee and Guardian (No 2) [2012] NSWCA 78
• Hearing dates: 4 April 2012
• Decision date: 04 April 2012
• Before: Campbell JA

Decision

(1) RNL appointed to represent the Estate of PBL, for the purposes of this appeal.

(2) Title of the proceedings to be amended.

(3) Appeal allowed.

(4) In lieu of the answer given in the court below to question 2 in the amended summons, substitute the answer: "The Court declines to answer this question."

(5) Revoke the declaration numbered 5 in the court below.

(6) Replace Order 7 in the court below with:

7. The income from the Sale Fund is to be retained in the Sale Fund, and the question of entitlement to the income is to await further determination by the NSW Trustee or the Court.

(7) Add to the orders made in the court below:

9. Without prejudice to how the moneys spent pursuant to this order are ultimately borne between the net proceeds of sale of the shares in Ansell Limited, interest that accrues on those net proceeds and other money that makes up the Other Funds, until further order of the court or further direction of the NSW Trustee moneys that are spent for PBL's benefit or on PBL's care or for the management of PBL's estate are to be paid from the Other Funds other than so much of the Other Funds as represents net proceeds of sale of shares in Ansell Limited and interest that accrues on those net proceeds.

10. Orders 6, 7 and 9 pare in substitution for previous directions of the NSW Trustee concerning the setting aside of a separate fund from the proceeds of sale of the Darlinghurst garage of PBL and the manner in which that fund should be used.

(8) RL's costs of the appeal on the indemnity basis to be paid from the estate of PBL other than the Sale Fund and so much of the Other Funds as represents the net proceeds of sale of the shares in Ansell Limited.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: MENTAL HEALTH - effect of disability on civil rights and duties - death of protected person - whether rights concerning litigation begun by manager concerning manner of administration of protected person's property survives death - who has power to continue litigation; PROCEDURE - manager of protected person brings litigation concerning administration of protected person's estate - death of protected person before orders made in litigation - procedural steps to enable litigation to be concluded; WORDS AND PHRASES - "cause of action"
• Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1944; New South Wales Trustee and Guardian Act 2009
• Cases Cited: RL v NSW Trustee and Guardian [2012] NSWCA 39
• Category: Consequential orders
• Parties: PBL by her Manager RNL (Appellant); NSW Trustee and Guardian (Respondent)
• Representation: Counsel: JE Thomson (Appellant); L Ellison SC (Respondent); Solicitors: MC Smith (Appellant); Crown Solicitor's Office (Respondent)
• File Number(s): 2011/148140

Decision under appeal

• Jurisdiction: 9111
• Citation: RJL v NSW Trustee and Guardian; The Estate of PBL [2011] NSWSC 200
• Date of Decision: 2011-03-23 00:00:00
• Before: Hallen AsJ
• File Number(s): P37/2010

Judgment

1 CAMPBELL JA: This matter relates to the way in which the estate of a protected person, Ms PBL, should be administered. The Court delivered its reasons for judgment on 19 March 2012: RL v NSW Trustee and Guardian [2012] NSWCA 39. A day or so before the reasons for judgment were due to be delivered the Court was informed that Ms PBL, had just died. Thus, when the matter was listed for delivery of reasons for judgment it was the reasons only that were delivered and no orders were made. Directions were given for the matter to be put in order so that the appeal could be finalised.

2 One provision of the Uniform Civil Procedure Rules 2005 that relates to the present situation is r 6.30, which so far as relevant, provides:

"(1) Proceedings do not abate as a result of a party's death or bankruptcy if a cause of action in the proceedings survives.

(2) If a cause of action survives, and the interest or liability of a party to any proceedings passes from the party to some other person, the court may make such orders as it thinks fit for the joinder, removal or re-arrangement of parties."

3 The nature of the application that was made first in the Equity Division, and then to this Court, concerned the obligations to which Ms RL, the manager of PBL's estate, was subject concerning the administration of PBL's assets, including in particular the proceeds of sale of a garage. The decision of the Court decided what are the obligations to which that particular fund could have been subject.

4 The reference in UCPR 6.30 (2) to a cause of action surviving invokes the provisions of s 2 of the Law Reform (Miscellaneous Provisions) Act 1944. So far as relevant, s 2 provides:

"(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person's estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under Division 2 of Part 3 of the Property (Relationships) Act 1984.

5 There is no definition of "cause of action" that applies to UCPR 6.30, or in the Law Reform (Miscellaneous Provisions) Act 1944. However, as s 2 is beneficial legislation, "cause of action" should be given wide construction in it. In my view, the rights that RL claimed in the present proceedings concerning the estate of PBL involved the invocation of a "cause of action" within the meaning of s 2. Thus, the Court retains the power to declare what the rights and obligations were in relation to the administration of that fund of money.

6 The death of PBL had the effect that RL's management of the estate was terminated. This is the clear effect of s 93 NSW Trustee and Guardian Act 2009. PBL's will appointed as sole executrix someone other than RL. There is evidence that the document that appeared to the Court at the time of the hearing of this appeal to be likely to be PBL's last will is, indeed, her last will.

7 There are provisions in s 94 and following NSW Trustee and Guardian Act that deal with the passing of the assets of a protected person from the NSW Trustee to the legal personal representative of the protected person when the protected person dies. However, there are no specific provisions that deal with the transition when a protected person dies from management by someone other than the NSW Trustee (who I will call a private manager) to administration by the legal personal representative. But, it cannot be doubted that the person who had been a private manager would be obliged to transfer all assets of the protected person to the legal personal representative. Thus, it is PBL's legal personal representative who has succeeded to any claims that PBL had relating to the administration of the fund. Unsurprisingly, there is not yet a grant of probate in PBL's estate.

8 UCPR 7.10 provides:

"(1) This rule applies to any proceedings in which it appears to the court:

(a) that a deceased person's estate has an interest in the proceedings, but is not represented in the proceedings, or

(b) that the executors or administrators of a deceased person's estate have an interest in the proceedings that is adverse to the interests of the estate.

(2) The court:

(a) may order that the proceedings continue in the absence of a representative of the deceased person's estate, or

(b) may appoint a representative of the deceased person's estate for the purposes of the proceedings, but only with the consent of the person to be appointed.

(3) Any order under this rule, and any judgment or order subsequently entered or made in the proceedings, binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings.

(4) Before making an order under this rule, the court may order that notice of the application be given to such of the persons having an interest in the estate as it thinks fit."

9 Pursuant to the directions that I have earlier given, the executrix of PBL's estate has been notified of this litigation. She has consented to RL being appointed as the person who should represent the deceased estate for the purpose of finalising these proceedings. As well, the Court has been provided with the written consent of RL to being appointed for that purpose, the consent of the residuary beneficiaries of the estate, evidence of the terms of the last will, and evidence that RL is not aware of any conflict of interest or duty that would make it improper for her to act as a representative of the estate.

10 In these circumstances, it is appropriate to make an order that appoints RL to represent the estate of PBL for the purposes of the appeal, and an order for the consequential amendment of the title to the proceedings. Once those orders are made, the orders that were proposed in the reasons for judgment delivered on 19 March 2012 may be made.

11 I note paras 1 to 5 inclusive of the short minutes of order that I initial, date today's date and shall place with the papers.

12 I make orders in terms of paras 1 to 8 inclusive of those short minutes of order. I note that orders 3 to 8 in those short minutes of order are identical with orders 1 to 6 inclusive that I had proposed in the reasons for judgment delivered 19 March 2012.

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Decision last updated: 11 April 2012