Bovaird v Bovaird - [2007] NSWSC 146

CITATION: Bovaird v Bovaird [2007] NSWSC 146
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28/02/07

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 28 February 2007

DECISION: Application dismissed with costs.

CATCHWORDS: MENTAL HEALTH - Guardians, Committees, Administrators, Managers and Receivers - Application by second defendant before the Guardianship Tribunal for appointment of a financial manager of first defendant - Tribunal also to consider referring the matter to the Supreme Court - Plaintiff, son of first defendant, sought stay of the proceedings before the Tribunal - Lost confidence in Tribunal - Alleged second defendant using proceedings for forensic advantage in other proceedings in the Supreme Court - Whether the seeking of a declaration that the first defendant was incapable of managing her affairs ousted the jurisdiction of the Tribunal under the Guardianship Act 1987, s 25K - Common ground that first defendant incapable of managing her affairs - Whether a real issue in the Supreme Court was required to oust the jurisdiction

LEGISLATION CITED: Guardianship Act 1987

PARTIES: Leon Lewis MacGillivray Bovaird - First Plaintiff
Peter Bruce Raupach - Second Plaintiff
Monica Catherine Bovaird - First Defendant
Diana Catherine Fallon - Second Defendant
The Guarianship Tribuanl - Third Defendant

FILE NUMBER(S): SC 0011/07

COUNSEL: Mr R Harper SC - Plaintiffs
Mr M McFadden - First Defendant
Mr J Clarke - Second Defendant

SOLICITORS: Garland Hawthorn Brahe - Plaintiffs
MBP Legal - Second Defendant
Ms Cho - Third Defendant - The Guardianship Tribunal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 28 FEBRUARY 2007

0011/07 LEON LEWIS MACGILLIVRAY BOVAIRD & ANOR v MONICA CATHERINE BOVAIRD & ORS

EX TEMPORE JUDGMENT

1 Leon Lewis MacGillivray Bovaird, the plaintiff, is the only son and only child of Monica Catherine Bovaird, the first defendant. Mr Bovaird has cared for his mother since the death of his father and is seeing to the discharge of her expenses.

2 Mrs Bovaird commenced proceedings against the executors of her deceased brother's estate in this Court. One of the executors is Diana Catherine Fallon, the second defendant. She is the applicant before The Guardianship Tribunal, the third defendant, for an order that a financial manager be appointed with respect to Mrs Bovaird.

3 Mr Bovaird seeks an order that Ms Fallon’s application in The Guardianship Tribunal be stayed until further order.

4 Mr Bovaird has lost confidence in the activities of the Tribunal as a result of a number of incidents that have occurred in the conduct by it of that application.

5 Undertakings have been given on his behalf limiting the amounts of money that would be disbursed by him from his mother's funds. One such undertaking was recorded in writing but wrongly recorded by the Tribunal. There was an indication that a directions hearing would first occur instead of which, without notice to Mr Bovaird, the matter was set down for hearing and set down without due regard…

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 Bovaird v Bovaird

Details

AGLC: Bovaird v Bovaird [2007] NSWSC 146
Case: [2007] NSWSC 146
Decision Date: 28 February 2007

CaseChat Overview and Summary

In the matter of Bovaird v Bovaird, the dispute before the court involved a complex family situation concerning the mental health and financial management of the first defendant. The plaintiff, the son of the first defendant, sought a stay of the proceedings before the Guardianship Tribunal that were initiated by the second defendant. The second defendant had applied for the appointment of a financial manager for the first defendant, who was alleged to be incapable of managing her own affairs. Additionally, the Tribunal was asked to consider whether the matter should be referred to the Supreme Court. The plaintiff argued that he had lost confidence in the Tribunal's ability to fairly adjudicate the matter due to perceived ulterior motives by the second defendant in leveraging the Tribunal's proceedings for forensic advantage in concurrent Supreme Court proceedings.

The legal issues before the court were whether the Tribunal's jurisdiction under section 25K of the Guardianship Act 1987 was ousted by the plaintiff's application for a declaration that the first defendant was incapable of managing her affairs, and whether a real issue in the Supreme Court was required to oust the jurisdiction of the Tribunal. The court needed to determine if the plaintiff's loss of confidence in the Tribunal's impartiality, coupled with the second defendant's alleged misuse of the Tribunal's process, justified the sought stay of proceedings. Furthermore, it was crucial to assess whether the existence of a real issue in the Supreme Court could override the Tribunal's jurisdiction in such matters.

The court found that the Guardianship Tribunal did not lose its jurisdiction to hear the matter merely because a declaration of incapacity was sought in the proceedings. It was emphasised that the Tribunal's role in managing the affairs of individuals with mental health issues was distinct from the Supreme Court's role in broader legal disputes. The court ruled that the plaintiff's loss of confidence in the Tribunal did not, in itself, constitute a sufficient ground for staying the proceedings. The court also noted that the existence of a real issue in the Supreme Court did not necessarily oust the jurisdiction of the Tribunal, as the two bodies had separate but complementary roles in the administration of justice. The court dismissed the application for a stay of proceedings, allowing the Guardianship Tribunal to continue with its assessment of the first defendant's capacity to manage her affairs.

Orders