Douglas v Douglas

[2004] NSWSC 279

CITATION:	Douglas v Douglas [2004] NSWSC 279
HEARING DATE(S):	12/09/03
JUDGMENT DATE:	12 September 2003
JUDGMENT OF:	Dowd J at 1
DECISION:	Application to seek declaration under the Property (Relationships) Act 1984 dismissed - service of notice of motion on the plaintiff under Pt 63 r 7(1)(A) SCR dispensed with - tutor appointed for purposes of proceedings.
CATCHWORDS:	Appointment of tutor - allegation of conflict of interest - appropriateness of appointment
LEGISLATION CITED:	Conveyancing Act 1919 Property (Relationships) Act 1984 Protected Estates Act 1983 Supreme Court Rules 1970
CASES CITED:	Holt v Protective Commissioner (1993) 31 NSWLR 227
PARTIES :	Thora Ruth Douglas Mary Douglas
FILE NUMBER(S):	SC 010740/02
COUNSEL:	J D Smith (Applicant) P M Friedlander (Respondent)
SOLICITORS:	Hamer & Hamer Solicitors (Plaintiff) Wight & Strickland (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J

Friday 12 September 2003

010740/02 THORA RUTH DOUGLAS v MARY DOUGLAS

JUDGMENT

1 HIS HONOUR: This is an application under Pt 63 SCR for an order that in proceedings by way of Statement of Claim by Thora Ruth Douglas seeking an order for possession of residential premises in Mosman against her daughter, Mary Douglas, that Godfrey Douglas be appointed tutor for the plaintiff for the purposes of the proceedings.

2 The plaintiff is the owner of premises known as 25 Beauty Point Rd, Mosman which is designed so that it in fact has two separate areas of habitation, one of which was formerly occupied by the plaintiff, the other which is now occupied by the defendant.

3 The proceedings were commenced on 18 March 2002. To these proceedings a defence and cross-claim have been filed, the cross-claim naming the plaintiff as cross-defendant. The cross-claim is a claim under the Property (Relationships) Act 1984 which seeks a declaration that the defendant has a possessory interest in the property by virtue of that Act and seeks an order that the cross-claimant have possession of the property. The plaintiff is advanced in years and is now in a nursing home.

4 The defence to the cross-claim substantially refutes the allegations made by the defendant in the original Statement of Claim and seeks that the cross-claim be dismissed.

5 The Notice of Motion is supported by a Form of Consent of Tutor on Appointment on behalf of Godfrey Douglas and an affidavit on behalf of Godfrey Douglas. It is also supported by an affidavit from Anthony Justin Hamer of 16 July 2003 which evidences a certificate given by a Dr Gregory Bennett of an examination carried out by him in the presence of Mr Hamer for part of the interview, and otherwise gives evidence as to the plaintiff’s competence to continue with these proceedings. The application is also supported by a certificate by Mr Hamer as to the witnessing of certain documents, and evidencing that a curator under the Protected Estates Act 1983 has not been appointed.

6 The application is opposed by the defendant, it being submitted that there is a conflict of interest such as substantially to make the appointment of Godfrey Douglas inappropriate.

7 The plaintiff has three children resident in Sydney: the defendant, Godfrey Douglas, a medical practitioner, and their brother, Warren Douglas.

8 A will has been executed appointing Mr Hamer and his daughter as executors. That will leaves the estate to be divided between the two sons.

9 A general Power of Attorney under s163B of the Conveyancing Act 1919 has been executed by the plaintiff, appointing her two sons and the wife of Godfrey Douglas as Attorneys. The form of Power of Attorney is in general terms without conditions but unfortunately has not been adequately completed and uses the words “where more than one joint and/or severally…” which is less than clear in its terms, it being desirable to make it clear as to the intention as to operating jointly or otherwise. On the face of it however the document appears to permit any one of the three to operate as Attorney, a situation which I would have thought is less than satisfactory.

10 Mr Friedlander, for the defendant, opposes the appointment of Godfrey Douglas and, having raised the issue on Monday, has now applied under s13 of the Protected Estates Act 1983 (“the Act”) for an order that the estate of Thora Douglas be subject to management under the Act. That application was made orally and Mr Friedlander sought dispensing with the Rules to permit that application to proceed. The application is opposed.

11 The question of whether a person is capable or otherwise of continuing court proceedings, which is the application before the Court, is a very discreet issue relating to specific proceedings. The declaration under the Act that is sought on behalf of the defendant in fact would result in all of the plaintiff’s property being managed under the Act. It is a general power to deal with the property of the applicant, not a power dealing with specific proceedings before the Court.

12 It seems to me that an application under s13 of the Act ought not be made in relation to this specific application for the appointment of a tutor, as the issues to be determined in that are much wider and would involve the management of the whole of the plaintiff’s property, and although that may incidentally cover these proceedings, it would in fact have much wider application. As I have indicated, there is a Power of Attorney enabling the plaintiff’s property to be managed. The Power of Attorney provides for the event of the plaintiff becoming disabled and I consider that the question of whether an order should be made under the Act are separate proceedings and should be dealt with as such. I would propose therefore to dismiss the application made under s13 of the Act.

13 Mr Friedlander, for the defendant, has relied on evidence in an affidavit of Godfrey Douglas of 1 July 2003 which, although in form is a reply to a longer affidavit, makes clear that there has not been a close relationship between Godfrey Douglas and the defendant. It also refers to the fact that the plaintiff had proposed changing her will to increase the legacy to the defendant.

14 It is put on behalf of the defendant that because there is a conflict of interest on the part of the proposed tutor with the defendant, it would be inappropriate to appoint him, and further put that he has an interest inconsistent with that of the defendant and is therefore not fit to occupy that position. He is a beneficiary under the will and it is clear that if the will operates, he will obtain one half of the estate anyway. On the evidence before me, the defendant may have some claim on the estate and, as has been shown to the Court, there was a clear intention at some stage on the part of the plaintiff that adequate provision be made for the defendant.

15 Mr Friedlander seeks to rely on a decision of the NSW Court of Appeal of Holt v Protective Commissioner (1993) 31 NSWLR 227 and, in particular, the judgment of Kirby J at p 242 which deals with the competing advantages of appointing a family member or the Protective Commissioner to manage the estate of a protected person. It sets out a series of factors to be taken into account.

16 This application is not an application under the Protected Estates Act 1983. No curator has been appointed. The issue is simply the question of whether the tutor should be appointed.

17 The medical evidence before me of Dr Bennett clearly establishes that the plaintiff is disabled and within the definition in Pt 1 r 8 SCR in that she is an incompetent person who is not a minor but incapable of managing her affairs. It is clear that she is confused in relation to the proceedings and I am satisfied on the evidence before me that the proceedings cannot continue without the appointment of a tutor.

18 Tutors are appointed in all manner of proceedings before this Court and very often have an interest which is inconsistent with that of a defendant or other parties to proceedings. However, the Rules provide that clearly a tutor to a disabled person must not have an interest adverse to the interests of the disabled person and the Rules do not provide that constraint concerning other parties. Clearly, within this family there are going to be difficult matters to resolve, not only in relation to the occupation of the subject premises but matters of management of the estate, and very difficult matters to resolve between the parties in the event of the death of the plaintiff.

19 The purpose of the provisions for the appointment of a tutor is to enable the proceedings to be continued. It is clear on the evidence that there is no interest inconsistent with the interests of the disabled person on the part of Godfrey Douglas, who is a medical practitioner and who is prepared to take on the task of bringing the proceedings. The fact that he may have an interest inimical to that of the defendant is not a factor that I consider ought to be taken into account.

20 The question of whether a curator under the Act should be appointed is not an issue before this Court.

21 The Rules provide the person moving for an appointment must serve the Notice of Motion on the disabled person, unless otherwise ordered. The evidence before me, particularly the evidence of Dr Bennett, shows that these proceedings, which are for the interests of the plaintiff, have been brought to her attention and that she is well aware of the purpose of the medical certificate evidence before this Court and it is also clear that the Power of Attorney which she has given to Godfrey Douglas is in unlimited terms. The only difficulty about it is that the Power of Attorney does not obviate the necessity to appoint a tutor because the Rules are clear that a tutor must be appointed, even though that tutor may have no more power than conferred by the Power of Attorney.

22 It seems to me that the purpose of serving a Notice of Motion on the disabled person is by way of protection and to bring the application to that person’s notice. Although one would have expected, on an application such as this, that there would be proof of service, I am satisfied that I should order that the requirement for service of the Notice of Motion on the disabled person be dispensed with.

23 On the evidence before me I consider that the tutor, Godfrey Douglas, should be appointed. The orders, therefore, that I make are as follows:

i. That the application to seek a declaration under the Property (Relationships) Act 1984 in respect of the affairs of the plaintiff be dismissed;

ii. That the service of the Notice of Motion on the plaintiff under Pt 63 r7(1)(A) SCR be dispensed with;

iii. That Godfrey Douglas be appointed tutor of the plaintiff for the purpose of these proceedings.

24 Application has been made for an order against the defendant for costs of these proceedings. That is opposed and an order sought that costs be costs in the cause which is the cause of the principal proceedings themselves. It is put on behalf of the defendant that it was a quite proper matter to bring the proceedings because of the conflict of interest that inevitably will occur and which now exists and that an order for costs ought not be made.

25 There is considerable weight in what Mr Friedlander has said as to the justness of the cause of the defendant but the application before the Court was for the appointment of a tutor. It is clear that a tutor had to be appointed. The costs of the appointment of any other person would have been quite substantial. The plaintiff and the tutor clearly have, in these proceedings, a common interest and it was proper that the orders which I have made be made.

26 In the circumstances, therefore, I think that costs should follow the event and that the applicant have an order against the defendant for the costs of this application. I say further that the tutor has taken on the responsibility and ought to be covered as to the costs of this application.

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Last Modified: 05/21/2004