(1988)1987October 23 [DEMETRIADES,LORIS,STYUANIDES,JJ.] INTHEMATTER OFPHOEBUS P.MAVROMMATIS, MENTALPATIENT, and AGNICHRISTOFIDOU, ADMINISTRATRIXOFTHEPROPERTY OFTHEABOVEMENTALPATIENT, Appellant-Applicant. (CivilAppeal No. 6948). Mental Patients —Administration ofproperty of— TheMentalPatients Law, Cap. 252, asamended byLaw 62/70 —MentalPatient under section 29A — Ambit of section 29B — Principlesgoverning the exercise of thepower of the Court thereunder. Appeal —Power of Court ofAppeal to interfere withthe exercise of the discretionof the trialCourt—Principlesapplicable. 5 TheAdministratrix of thepropertyofa Mental Patient undersection 29AappliedtotheCourtforauthorizationtowithdrawfromthebank a deposit of the patient bearing interest at6%, subjected to income tax, and invest itin Government security bonds, which yield a non- 10 taxableinterest 8% per annum. The trial Judge dismissed the application on the ground that the provisions of section 29B empower the Court only and mainly to givedirections for the maintenance ofthe patient and hisfamily and theadministratrixshouldnotactasashrewdinvestorforthepurpose 15 of increasing the property of the patient, especially when such increase isunnecessary for the maintenance of the patient. Hence thisappeal. Held,allowing the appeal:
(1)Section 29B has to be read and interpreted as a whole. The enumeration ofspecific objects insub-section 2isnot exhaustive 20
(2)The paramount consideration is the patient's interest. The guidingprinciple for the exercise of thejurisdiction isthatthe Judge enablesthattobedone,whichthepatientwould himself belikelyto do, ifcapable of managing hisaffairs and properly advised. 25 6 1 C.L.R. In re Mavrommatis
(3)The investment of funds of thepatient in a more secure or advantageous wayisforthebenefit oftheproperty ofthepatientand itcomes within theambit oftheLaw. 5
(4)Having inmindtheprinciples governing theinterference bythis Court with theexercise of the discretion of a trial Court andin the circumstances ofthis case, the appeal should be allowed. Appeal allowed. Costs out oftheestate. Casesreferredto; 10 AlltransExpress Ltd. v.CVA Holdings Ltd. [1984] 1 All£./?. 685. Appeal. Appeal by applicantagainst the judgment of the DistrictCourt of Nicosia (Artemides, P.) dated the 27th May, 1985 (Appl. No. 47/65)whereby herapplication for leave towithdraw theamount 15 of £3,250.- deposited with the Bank of Cyprus in the name of mental patient Phoebus P. Mavrommatis and invest it in Government security bonds was dismissed. A. Pandelides, for appellant -applicant. 20 DEMETRIADESJ.: TheJudgmentof the Courtwillbe delivered by Mr. Justice Stylianides. STYLIANIDES, J.: The appellant is the administratrix of the property of Phoebus P. Mavrommatis, of Morphou, who now is staying ataclinic in Nicosia. 25 30 35 Phoebus P. Mavrommatis is a mental patient («the patient») under section 29A of the Mental Patients Law, Cap. 252, as amended by the Mental Patients (Amendment) Law, 1970 {Law No. 62/70). In the Mental Patients Law there was no provision regarding persons incapable, by reason of mental disorder, of managing, andadministering theirproperty andaffairs, who were not subject of confinement. This lacuna was filled by Law 62/70, which isalmost areplica of the corresponding provisions of the English Mental Health Act 1959, by the addition of three new sections -Nos.29A, 29B and 29Γ -under a new Part VA with the subhead «Administration of the Property and Affairs of Mental Patients not Subject to Confinement». 7 Stytianldes J. In reMavrommatis
(1988)The patient has an amount of £3,250.- deposited at a bank of Cyprus at 6% rate of interest. The income derived from this investment is taxable, as the patient draws other income from other sources. The administratrix applied to the Court to authorize her to withdraw from the bank thisamount and invest itin Government securitybonds,whichyieldanon-taxableinterest8% perannum. 5 The application was dealt by a Judge of the District Court of Nicosia, who dismissed it on the ground that the provisions of section 29Bempower theCourtonlyandmainlytogivedirections 10 for the maintenance of the patient and his family and the administratrix should not act asa shrewd investor for the purpose of increasing the property of the patient, especially when such increase isunnecessary for the maintenance of the patient. Section 29B reads asfollows:- 15 «29B -
(1)Notwithstanding the previous provisions of this Law, the District Court, having territorial jurisdiction where thepatient resides,haspowerwithrespecttotheproperty and affairs of the patient to takeallnecessary measures and make the necessary directions- 20 (
- a)for the maintenance or other benefit of the patient or members of his family;
- fb)foi making provision for other persons or purposes tor whom or which the patient might be expected to provide ifhe were not mentally disordered; or 25 (
- c)otherwise for administering the patient's property and affairs.» Sub-section 2 provides that in the exercise of these power regard mustbehad tothesatisfaction ofthepatient's requirements and hiswelfare, but intheadministration of hisaffairs, the interest 30 ofhiscreditorsshall,also,betaken intoconsideration and, without prejudice to the generality of the functions mentioned in subsection 1, the Court may make such orders and give such directions as the Judge thinks fit for the purposes of those functions and, in particular, for the following purposes:-' ^5 (
- a)The control and management of the property of the patient. 8 1CL.R. InreMavrommatis StyUanidee J. (b)Thesale,exchange,charging,orotherdispositionofany property ofthe patient. (c)Theacquisition ofanyproperty inthenameoron behalf ofthe patient. 5 (d)The carrying on bya suitable person of any profession, trade, orbusinessof the patient. (
- e)The dissolution of a partnership of which a patient isa member. 10 (0 The carrying out of any contract entered into by the patient. 15 (g)The conduct of legal proceedings in the name of, or on behalf ofthepatient,provided that,forthe filing ofanyaction or the taking of any proceedings in respect of the conjugal status of the patient, the prior consent of the Attorney General ofthe Republic is required. 20 (
- h)The appointment of administrator of the property and affairs of the patient under such conditions, including the remuneration of the administrator, as the Court may determine. Section 29Bhasto be read and interpreted as a whole. Law 62/70 created an entirely new statutory jurisdiction for a special category of mental patients, persons incapable by reason of mental disorder of managing and administering their property and affairs, but who are not subject of confinement. 25 For the exercise of thispower regard must be had to what isin the interest of the patient and his property and affairs. The enumeration ofspecific objectsinsub-section 2isnotexhaustive. The paramount consideration is the patient's interest. The guiding principle for the exercise of the jurisdiction is that the 30 Judge enablesthattobedonewhichthepatientwouldhimself be likelytodoifcapableofmanaginghisaffairs andproperly advised. The administration ofthepropertyand affairs shouldbesuch as a prudent person would do for hisown affairs. The Court and the administrator appointed bythe Court isina 35 sense a trustee of the property and affairs of the patient. The investment of funds of the patient in a more secure or advantageous way isfor the benefit of the property of the patient and itcomes within theambit of the Law. 9 Styllanldes J. InreMavrommatis
(1988)Even thepermanent improvements ofimmovablepropertyofa patient, simplytomention anexample, comewithinparagraph (c) of section 29B. In the present case the benefit accruing to the property of the patient isobvious.There willbe a 2% increase inthe interestand 5 the whole interest will not be the object of taxation. Such investment is one of those authorized under section 4 of the Trustee Law, Cap. 193. Thisappeal attacksthe exercise ofthetrialJudge's discretion.It is the function of this Court toreview the exercise of the Judge's 10 discretion and not to entertain an appeal in the sense of being invited tosubstitute itsown discretion for that of the Judge. This Court intervenes when there isa misdirection as to Law; when theJudge hasnotexercised hisdiscretion atall,orexercised itotherwisethanjudicially;whentherewasapurported exerciseof 15 the discretion,withoutany materialsonwhichthediscretion could be exercised, or the Court below has taken into consideration wholly extraneous and irrelevant matters. Stephenson, L.J., inAlltransExpressLtd., v.CVAHoldings Ltd. [1984] 1 All E.R. 685, at p. 690, succinctly and aptly stated the 20 principlesonwhich anAppealCourtinterferes withtheexerciseof a Judge's discretion, as follows:«We must be very careful not to interfere with the judge's exercise of the discretion which has been entrusted to him. We can only do so if he has erred in law or in principle, or if 25 he has taken into account some matter which he should not have taken intoaccountorhasleftoutofaccountsome matter which he should have taken into account, or, and this is an extension of the law which is now Ithink well recognised, if the Court of Appeal is of opinion that his decision isplainly 30 wrong and therefore must have been reached by a faulty assessment oftheweightsofthedifferent factors whichhe has had totake into account.» Having regard to the afore principles, the Law governing the matter of theadministration oftheproperty and affairs ofapatient 35 and the facts of the case, weallowthe appeal. Order ismade as per application. With regard to costs, we observe that itisunfortunate that this case hadtogothrough thetwotiersoftheadministration ofjustice 10 1 C.L.R. in re Mavrommatis StyUanides J. and thusthe costs have increased. Thecoststobe paid out of the property of the patient, but we trust that counsel would exercise restrain in preparing his bill, in view of the fact that he has stressed before usthat thiswasan application made bona fide for 5 thebenefit of the patient. Appeal allowed. Coststo bepaid out oftheproperty of the patient 11