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Application of Peter Hodges

Application of Peter Hodges

Case [2021] NSWSC 55 5 February 2021

Jurisdiction

Anticipatory Applications

Tutors

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Application of Peter Hodges [2021] NSWSC 55
Hearing dates: 5 February 2021
Date of orders: 5 February 2021
Decision date: 05 February 2021
Jurisdiction: Equity
Before: Kunc J
Decision:
Directions made in relation to possible settlement

Catchwords:
CIVIL PROCEDURE – Parties – Persons under legal incapacity – Tutors – Application for directions by tutor not to be confused with application by trustee for judicial advice – Anticipatory applications by tutors for directions in relation to potential settlement of proceedings should generally not be made – Civil Procedure Act 2005 (NSW), ss 76(3), 80

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Trustee Act 1925 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
A v A [2015] NSWSC 1778
AC v OC (a minor) [2014] NSWSC 53
Hancock v Rinehart [2019] NSWSC 1451
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand & Anor (2008) 237 CLR 66; [2008] HCA 42
Rappard v Williams [2013] NSWSC 1279

Category: Procedural rulings
Parties: Peter Hodges (Plaintiff)
Representation:
Counsel:

M Gunning (Plaintiff)

Solicitors:
Mills Oakley (Plaintiff)

File Number(s): 2020/260355
Publication restriction: No

eX TEMPORE Judgment (REVISED)

Summary

By Summons filed on 7 September 2020, the applicant solicitor, Mr Peter Hodges, seeks judicial advice in the form frequently sought by trustees. However, Mr Hodges is not a trustee.
By order of this Court made on 24 February 2020, Mr Hodges was appointed tutor for Mr Eric Darley. Mr Darley is the defendant in proceedings (the “Primary Proceedings”) brought by Mr Darley’s daughter, Mrs Jillian Links, and her husband, Mr Colin Links (the “Links”). Mr Darley has been diagnosed by his general practitioner with “severe cognitive impairment because of dementia”.
Mr Hodges’ summons, which names no defendant, seeks this relief:

“1.   An order that the plaintiff would be justified in defending Supreme Court of New South Wales Case No. 2019/00229657 (Primary Proceedings).
2.   An order that the plaintiff would be justified in paying the legal costs of defending the Primary Proceedings out of the Estate of Eric Darley on an indemnity basis.
3.   Alternatively, an order that the plaintiff would be justified in accepting the offer made by the plaintiffs in the Primary Proceedings on 3 September 2020.
4.   Further or other orders and directions.
5.   An order that the costs of these proceedings be paid out of the Estate of Eric Darley on an indemnity basis.”

In the Primary Proceedings, the Links allege that Mr Darley and his late wife agreed to lend them up to $250,000 to purchase a property at Kariong (the “Property”) on which the Links would live, but which would be held by Mr and Mrs Darley for the benefit of the Links. The Links seek relief in the Primary Proceedings to the effect that, subject to their obligation to do equity by repaying what they borrowed, Mr Darley holds the Property on trust for them. They…

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 Application of Peter Hodges

Details

AGLC: Application of Peter Hodges [2021] NSWSC 55
Case: [2021] NSWSC 55
Decision Date: 05 February 2021

CaseChat Overview and Summary

The case involved Peter Hodges, a party under legal incapacity, with his tutor seeking directions in relation to potential settlement of the proceedings. The dispute was heard in the Supreme Court of New South Wales. The tutor, acting on behalf of Hodges, sought directions from the court to facilitate the potential settlement of the proceedings. The legal issues at hand were whether the tutor could make an application for directions and whether such an application could be confused with a trustee's application for judicial advice.

The court held that an application by a tutor for directions in relation to potential settlement of proceedings should generally not be made. The court clarified that the tutor's role is to manage the legal affairs of the incapacitated person, not to make substantive legal decisions. The court relied on sections 76(3) and 80 of the Civil Procedure Act 2005 (NSW), which distinguish between the tutor's role and that of a trustee seeking judicial advice. The court emphasised that the tutor's application for directions could be confused with a trustee's application for judicial advice, which has different legal implications and requirements. The court ultimately dismissed the tutor's application for directions, emphasising the importance of maintaining the distinction between the roles of a tutor and a trustee.

The court's decision underscores the need for clarity in the roles and responsibilities of those acting on behalf of incapacitated persons. The court emphasised that anticipatory applications by tutors for directions in relation to potential settlement of proceedings should generally not be made, as this could lead to confusion and potentially undermine the legal framework governing the management of incapacitated persons' affairs. The court's decision provides important guidance for tutors and other parties involved in proceedings where an incapacitated person is a party.

Orders