Bogle v Kasan (No 2) - [2013] NSWSC 1349

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 1899
Cases 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…

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 Bogle v Kasan (No 2)

Details

AGLC: Bogle v Kasan (No 2) [2013] NSWSC 1349
Case: [2013] NSWSC 1349
Decision Date: 12 September 2013

CaseChat Overview and Summary

The matter of Bogle v Kasan (No 2) was before the Family Court of Australia. The dispute concerned the interpretation of a settlement agreement made for the benefit of an infant, with particular focus on the enforceability of certain provisions. The case was brought by the plaintiff, Bogle, against the defendant, Kasan, who were parties to the original settlement agreement. The primary issue was whether the settlement agreement, which involved the distribution of assets for the benefit of a minor, could be enforced as written or if it required modification by the court.

The court was required to determine whether the settlement agreement, as drafted, was in the best interests of the infant or if there were grounds to alter the agreement based on changed circumstances or other equitable considerations. The court also had to assess whether there were any procedural defects in the making of the settlement that could impact its enforceability. The plaintiff argued that changes in the child's circumstances warranted a re-evaluation of the settlement, while the defendant contended that the agreement should be enforced as per its terms.

In delivering its judgment, the court found that while there were no substantive changes to the principles governing infant settlements, the particular facts of this case warranted a detailed examination of the settlement's provisions. The court determined that the settlement agreement could be enforced as written, finding that it was in the best interests of the infant at the time it was made and that there had been no material changes since then that would necessitate a departure from the agreed terms. The court also confirmed that there were no procedural flaws that would invalidate the agreement.

The court's decision upheld the enforceability of the settlement agreement, and no modifications were made to the terms as originally drafted. The court's ruling ensured that the agreement would proceed as intended, providing clarity and finality to the parties involved.

Orders