Gratuitous care: Payment application by mother

Although the background to JPT v DST [2014] NSWSC 1735 was a motor vehicle accident, similar issues arise following birth trauma compensation claims where a parent applies for payment of a sum of money where the claim has included past gratuitous care provided by the parent. As often arises, the primary claim had been settled for a lump sum with no express allocation of an amount for past gratuitous care.

In this matter,the injury claimant was no longer subject to a management order. His mother had been a joint manager of his estate and the son now opposed the application by his mother.

The court had jurisdiction to order that provision be made for mother out of the estate of the son notwithstanding orders having been made for revocation (pursuant to the Trustee and Guardian Act 2009 NSW, s 86) of the management orders affecting him: [62].

Lindsay J noted at [33] that the son is and was at all material times under no legal liability to pay for whatever services may have been provided to him by his mother. Even if it could be established that the compensation he recovered with her assistance included a component specifically referable to her gratuitous care, that fact alone would provide no foundation under the Australian law for imposition of a legal, or equitable, obligation on him to pay her anything: Griffiths v Kerkemeyer (1977) 139 CLR 161 at 177 and 193-194; Kars v Kars (1996) 187 CLR 354 at 368-372.

At [35], the Court’s inherent, protective jurisdiction extends to authorisation of a voluntary allowance or donation out of a protected estate, not limited to allowances for the maintenance or benefit of a protected person’s family, although family may be natural objects of beneficence.

A difficulty for the mother was that whilst a joint manager, she had (at [57]) diverted part of the estate to herself and failed to properly account for more than $45,000.

At [58] the court noted:

Her failure to account for estate property provides, in itself, a substantial impediment against the Court making an order that she be granted a discretionary allowance out of the plaintiff’s estate. Just as an executor may be denied commission if guilty of a breach of trust, neglect or disregard of fiduciary obligations, so too may a manager be denied an allowance out of the estate under management if in breach of the fiduciary obligations of a protected estate manager: Cf, Re Estate Gowing [2014] NSWSC 247; 17 BPR [98635] at [67]-[69].