Example of orders

The preference of NSW Trustee and Guardian is that the court orders specify the capacity and terms on which NSW Trustee and Guardian is to hold the funds.   

Section 77(3) of the Civil Procedure Act 2005 (NSW) provides: 

The court may order that the whole or any part of such money (judgment sum) not be paid into court but be paid instead to such person as the court may direct, including:

• if the person is a minor, to NSW Trustee and Guardian, or
• if the person is a protected person, to the manager of the protected person's estate.

There are 3 situations where NSW Trustee and Guardian receives matters from the NSW District Court or the NSW Supreme Court:

1. Where the parties wish to appoint NSW Trustee and Guardian as a trustee in its trust capacity as opposed to acting as financial manager for the plaintiff.
2. Where funds are paid into and held by the court pending the Supreme Court making a financial management order in respect of the plaintiff.  Once the financial management order is made, the funds held by the court can be paid out to the manager, whether it be a NSW Trustee and Guardian or a private manager.
3. Where a financial management order has already been made by either the Supreme Court or NCAT, and the settlement sum is to be paid to the financial manager.

Monies are paid into the court pending further order

“Order pursuant to s77(2) of the Civil Procedure Act 2005 (NSW) that all money recovered on behalf of a person referred to in s77(1) of the Civil Procedure Act 2005 (NSW) be paid into court pending further order.”

When an order is made under s77(2), the applicant must apply under s77(4) for payment out of court.

Trust for adult who does not have the capacity to manage their financial and legal affairs

"The judgment sum be paid to NSW Trustee and Guardian pursuant to section 77(3) of the Civil Procedure Act 2005 (NSW) to be held in trust for the plaintiff until the plaintiff is medically assessed as having the capacity to manage their legal and financial affairs and the trustee may apply any trust income and/or capital for the beneficiary's maintenance, education, benefit and advancement in such manner as the trustee shall in its absolute discretion think fit.”

Trust for a child (minor) where the minor’s capacity on reaching 18 years of age is not in question

“The judgment sum be paid to NSW Trustee and Guardian pursuant to section 77(3)(a) of the Civil Procedure Act 2005 (NSW) to be held in trust for the plaintiff until the plaintiff attains the age of 18 years and the trustee may apply any trust income and/or capital for the beneficiary's maintenance, education, benefit and advancement in such manner as the trustee shall in its absolute discretion think fit.”

Trust for a child (minor) where the minor’s capacity on reaching 18 years of age may need to be assessed

“The judgment sum be paid to NSW Trustee and Guardian pursuant to section 77(3)(a) of the Civil Procedure Act 2005 (NSW) to be held in trust for the plaintiff until the plaintiff attains the age of 18 years and is medically assessed as having the capacity to manage their legal and financial affairs. The trustee may apply any trust income and/or capital for the beneficiary's maintenance, education, benefit and advancement in such manner as the trustee shall, in its absolute discretion, think fit.”

Where a financial management order has been made for the plaintiff

“Order pursuant to s77(3)(b) of the Civil Procedure Act 2005 (NSW) that the net settlement sum be paid to NSW Trustee and Guardian as manager of the estate of (Plaintiff’s name).