Background
Soraya Fardous sustained serious cognitive and emotional impairments following brain surgery in 2004. In negligence proceedings brought by her tutor, the Court approved a $4 million settlement in 2013. The settlement funds were paid to Australian Executor Trustees Ltd to invest and manage, with the earlier judgment observing that Ms Fardous was then incapable of managing her affairs.
In 2025, Ms Fardous sought to end that arrangement. She relied on evidence of substantial improvement in her daily functioning and financial capability, including living independently with her son, managing household and personal matters, working for several years, undertaking property transactions, and using organisational strategies for remaining memory difficulties. Her general practitioner and neuropsychologist supported her capacity, although the neuropsychologist considered that she should continue to use appropriate professional support. The trustee did not oppose the application.
The Court’s Holding
Sirtes J held that the application was properly treated as one under s 86 of the NSW Trustee and Guardian Act 2009 (NSW), despite the 2013 orders not formally declaring Ms Fardous incapable or expressly making her estate subject to management. In context, those orders had placed her estate under the defendant’s management in accordance with the Act.
The Court declared that Ms Fardous is now capable of managing her own affairs. Applying the statutory principles of welfare, least-restrictive decision-making and self-reliance, and the flexible common-law approach to capacity, the Court found that she could manage her affairs reasonably and with available supports, without a demonstrated risk of neglect, abuse or exploitation. It ordered the trustee to transfer management of the estate to her within 28 days and discharged it as trustee.
Key Takeaways
- Capacity to manage affairs is assessed flexibly, in light of the person’s actual affairs, experience and available supports.
- Improved functioning and the ability to seek and act on professional advice can support revocation of estate-management arrangements.
- Both parties’ costs were ordered to be paid from Ms Fardous’s estate on an indemnity basis.
Why It Matters
The decision illustrates that protective financial-management arrangements need not continue once their justification has fallen away. The Court gave substantial weight to Ms Fardous’s demonstrated independence, her wishes, and the statutory direction to restrict autonomy no more than necessary.
It also confirms that the Court may look to the substance and context of earlier orders when identifying its power under s 86, even where those orders were not expressed in standard management-order form.