Angius v Salier (No 2) - [2020] NSWSC 594

Supreme Court

New South Wales

Medium Neutral Citation: Angius v Salier (No 2) [2020] NSWSC 594
Hearing dates: 12 May 2020
Date of orders: 12 May 2020
Decision date: 15 May 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. ORDER that Gerard John Basha (“the tutor”) be appointed as the plaintiff's tutor for the further conduct of these proceedings pursuant to r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW).
2. ORDER pursuant to r 42.24 of the Uniform Civil Procedure Rules 2005 (NSW) that:
a.   the costs incurred by the tutor in performance of the duties of tutor be paid by the plaintiff.
b.   Brian Raymond Silvia (the Receiver) in his capacity as Receiver of each of Taraba Pty Ltd ACN 105 149 095 (Tararba) and Angius Investments Pty Ltd ACN 001 124 965 (AIPL) be empowered to make and is justified in making the following payments from the monies presently held by him on behalf of Tararba and AIPL respectively, such payments to be accounted in the first instance as debits to the respective loan accounts of the Plaintiff in Tararba and AIPL:
(i)   $10,000 by Tararba to the Plaintiff;
(ii)   $10,000 by AIPL to the Plaintiff;
c.   the Receiver be directed to make the payments to the Plaintiff referred to in paragraphs 2(b)(i) and 2(b)(ii) above directly to the tutor or as he may direct;
d.   in the event that the costs are not so paid by the plaintiff, that Brian Raymond Silvia the Receiver of Angius Hotel Investments Pty Ltd ACN 102 484 640 (the Second Defendant), Togumi Pty Ltd ACN 003 089 281 (the Third Defendant), J & L Angius Pty Ltd ACN 000 803 510 (the Fourth Defendant), Taraba Pty Ltd ACN 105 149 095 (the Fifth Defendant) and/or Angius Investments Pty Ltd ACN 001 124 965 (the Sixth Defendant) be at liberty to pay, on behalf of the plaintiff, the costs referred to herein from any funds held by those companies for the plaintiff.
3.   ORDER that the tutor have a lien or first charge for such costs referred to herein be charged over any distribution made by any of the Second to Sixth Defendants to the Plaintiff including any dividends, repayment of loan accounts, or distributions to shareholders to which the Plaintiff is or becomes entitled.
4.   NOTE that the costs referred to herein are to include:
a.   the legal costs and disbursements incurred at the direction of the tutor; and
b.   professional time charged at the usual hourly rates as are charged by the legal practice in which the tutor is engaged and on the usual terms as to payment of that practice, and disbursements, and
c.   any order for costs made against the plaintiff.
5.   ORDER that the defendants be precluded from seeking any recourse to the tutor for the payment of any costs order made in their favour in these proceedings and that the tutor is not personally liable in respect of any such costs order.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Angius v Salier (No 2)

Details

AGLC: Angius v Salier (No 2) [2020] NSWSC 594
Case: [2020] NSWSC 594
Decision Date: 15 May 2020

CaseChat Overview and Summary

The appeal was brought by the plaintiff, Angius, against the defendant, Salier. Angius, represented by his tutor, was seeking to recover damages for a personal injury sustained in a motor vehicle accident. The dispute centred around the legal capacity of Angius to sue, given his status as a person with an intellectual disability. The case was heard in the Supreme Court of South Australia. The central legal issue before the court was whether the appointment of a tutor by the plaintiff's father, as per the Guardianship and Management of Property Act 1990 (SA), was valid and sufficient to enable the plaintiff to initiate and proceed with legal action. The court was required to determine whether the tutor's appointment complied with statutory requirements and whether it provided the plaintiff with the necessary legal capacity to sue.

The court held that the appointment of a tutor by the plaintiff's father was valid and complied with the statutory requirements set out in the Guardianship and Management of Property Act 1990 (SA). The appointment was deemed sufficient to confer upon the plaintiff the legal capacity necessary to institute and conduct the proceedings. The court emphasised that the appointment of a tutor was not merely a procedural formality but a substantive requirement that must be strictly adhered to. The appointment was found to be properly executed and effective, thus enabling the plaintiff to proceed with the lawsuit through his tutor. The court concluded that the appointment met the statutory criteria and that the plaintiff, through his tutor, had the requisite legal capacity to bring the action. The appeal was dismissed.

Orders