Health & Aged Care News Alert: Funds Management - Can the plaintiff claim for the cost of a private trustee
On 11 March 2016, Schmidt J of the Supreme Court of New South Wales handed down a decision regarding the calculation of damages for funds management. The question was whether damages should be calculated by reference to what the plaintiff may be charged for funds management by National Australia Trustee Limited, a private funds manager, in which case the figure agreed was $872,000, or by reference fees charged by the NSW Trustee and Guardian, which amounted to $515,173.
Schmidt J held that although ‘it may be entirely reasonable for a tutor to prefer the more expensive option it does not follow that an order for damages can rest on such a decision, without the reasons for the preference being revealed’ and therefore an ‘unexplained preference for a more expensive manager, without more, when there is no question that the NSW Trustee could also be appointed by the Court and that it could also properly perform the work [the plaintiff] requires, cannot be a just basis upon which the calculation of this head of damage can rest’.
This case demonstrates that plaintiffs will not be granted a more expensive funds management option without providing reasons why a private funds manager should be preferred.
Kylie Agland, Partner
Stacey King, Solicitor