Bogle v Kasan (No 2)
[2013] NSWSC 1349
•12 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Bogle v Kasan (No 2) [2013] NSWSC 1349 Hearing dates: 12 September 2013 Decision date: 12 September 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Trustee appointed.
Catchwords: INFANT SETTLEMENT - no question of principle. Legislation Cited: Civil Procedure Act 2005
Infants' Custody and Settlements Act 1899Cases Cited: - Bogle v Kasan [2013] NSWSC 295 Category: Consequential orders Parties: Wei-Ping Bruce Bogle by his tutor
Yu-Ping Li (Plaintiff)
Dr Pravin Kasan (Defendant)Representation: Counsel:
R.A. Algie (Sol) (Plaintiff)
N/A (Defendant)
Solicitors:
Carroll & O'Dea (Plaintiff)
TressCox Lawyers (Defendant)
File Number(s): 2011/404823
EX TEMPORE Judgment
On 8 March 2013 Button J published a judgment approving a settlement of a claim brought on behalf of the plaintiff, who is a minor, under s 76 of the Civil Procedure Act 2005 (Bogle v Kasan [2013] NSWSC 295). His Honour's judgment records that the plaintiff is a fourteen year old boy who suffered injuries that have led to disabilities. The amount of the judgment that was entered in his favour was $495,000 plus costs as agreed or assessed. Since that time inquiries have been made as to the appropriate means of managing the judgment sum.
Today an application has been made to the Court under s 16 of the Infants' Custody and Settlements Act 1899 which provides:
"Court may appoint trustees for settlements for the benefit of minors in certain cases
1. Whenever a verdict is recovered or a judgment entered for any amount as damages in any action or other proceeds for tort brought by or on behalf of a minor, the Court may order that a settlement of the same shall be made for the benefit of the minor, and may appoint a trustee or trustees for such settlement.
2. The terms of such settlement shall be fixed by the Court, or subject to its approval by some officer of the Court appointed to do so.
3. This power shall extend to the District Court as well as the Supreme Court."
Further, s 77 of the Civil Procedure Act also provides:
"Payment of money recovered on behalf of person under legal incapacity
1) This section applies to money recovered in any proceedings on behalf of any of the following persons:
(a) a person under legal incapacity,
(b) a person who, during the course of the proceedings, becomes a person under legal incapacity,
(c) a person whom the court has found, under section 76 (1) (c), to be incapable of managing his or her own affairs,
pursuant to a compromise, settlement, judgment or order in any proceedings.
(2) All money recovered on behalf of a person referred to in subsection (1) is to be paid into court.
(3) Despite subsection (2), the court may order that the whole or any part of such money not be paid into court but be paid instead to such person as the court may direct, including:
(a) if the person is a minor, to the NSW Trustee and Guardian, or
(b) if the person is a protected person, to the manager of the protected person's estate.
(4) Money paid into court under subsection (2) is to be paid to such person as the court may direct, including:
(a) if the person is a minor, to the NSW Trustee and Guardian, or
(b) if the person is a protected person, to the manager of the protected person's estate."
Since the approval of a judgment by Button J, the plaintiff's tutor, who is his mother, has made various enquiries of potential trustees. She has indicated that she does not wish the NSW Trustee and Guardian to manage the proceeds of the settlement. She has met with representatives of National Australia Trustees Limited and seeks to have them appointed as trustee.
An affidavit has been sworn from a representative of National Australia Trustees. The affidavit reveals that, as its name suggests, National Australia Trustees Limited is a wholly owned subsidiary of the National Australia Bank Limited. The affidavit outlines the fee regime for the cost of managing the plaintiff's funds and gives a brief description of the investment approach which is described as "prudent".
As is to be expected, the defendant has indicated that he neither opposes nor consents to the orders. In light of the inquiries made by the plaintiff's mother and the matters revealed concerning the appropriateness of National Australia Trustees, I will accede to the application.
I will make orders in accordance with paragraph 1 of the document described "Judgment/Order" which is initialled by me, dated today and placed with the papers.
Decision last updated: 26 September 2013
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