Cassaniti v Thomson
[2022] NSWSC 1233
•14 September 2022
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New South Wales |
Case Name: | Cassaniti v Thomson |
Medium Neutral Citation: | [2022] NSWSC 1233 |
Hearing Date(s): | 14 September 2022 |
Date of Orders: | 14 September 2022 |
Decision Date: | 14 September 2022 |
Jurisdiction: | Common Law |
Before: | Harrison J |
Decision: | Make the following further order: |
Catchwords: | CIVIL PROCEDURE – settlement approval – where settlement approved but plaintiff yet to receive funds directed to NSW Trustee & Guardian – further order made – funds to be held by NSW Trustee & Guardian on trust for plaintiff |
Legislation Cited: | Civil Procedure Act 2005 (NSW), s 77 |
Category: | Procedural rulings |
Parties: | Carmela Cassaniti (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2019/212244 |
Publication Restriction: | Nil |
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JUDGMENT
HIS HONOUR: I approved a settlement in favour of the plaintiff in this matter on 9 June 2021. The orders that I made were as follows:
(1) I note that this matter has settled subject to approval, in accordance with the terms of a consent judgment dated today [9 June 2021] and signed by the legal representatives of the parties.
(2) I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005.
(3) I make orders in accordance with paragraphs 1 to 8 inclusive of the consent judgment which for identification I will initial, date with today’s date and place with the papers.
(4) In accordance with s 77(2) of the Civil Procedure Act 2005 I order that the judgment sum referred to in paragraph 2 of the consent judgment, less any authorised deductions for which it specifically, or by necessary implication provides, be paid into Court for payment out thereafter to the NSW Trustee & Guardian or as the Court may, upon application made pursuant to s 77(3) of the Act, otherwise direct.
The proceedings have since then been relisted before me at the request of the plaintiff’s solicitors in order to amend the orders that I had made. That application was prompted by concerns, apparently expressed by a person employed by the NSW Trustee and Guardian, that order (4) did not operate with sufficient clarity to indicate whether the funds paid into court by the defendant and thereafter paid out to the NSW Trustee and Guardian were to be held by the latter on trust for the plaintiff or in some other capacity. This concern would appear to have been based upon an unfounded perception that my order could somehow have involved or anticipated the appointment of a financial manager. It did not.
This dispute has regrettably festered for more than a year over a faux issue that should not have caused any confusion at all. However, at the request of the solicitor for the plaintiff, and for more abundant caution, I will make an additional order (5) in the following terms:
(5) The judgment sum is to be paid to the NSW Trustee & Guardian, in its trust capacity, pursuant to s 77 of the Civil Procedure Act 2005, to be held on trust for the plaintiff while she is alive, pending the plaintiff reaching 100 years of age or regaining capacity to manage her affairs. The trustee may apply any trust income and/or capital for her maintenance, education, benefit, and advancement in such a manner as the trustee shall in its absolute discretion think fit, including the payment of any of her expenses relating to these proceedings.
I am also informed that, for some inexplicable reason, the defendant paid into court an amount agreed between the parties as party and party costs. I do not understand why that occurred. It goes without saying that the NSW Trustee and Guardian was not entitled to receive funds mistakenly paid to it in that capacity and that the monies should immediately be repaid to the plaintiff’s solicitor.
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