Gregory Stuart Bowering v Deborah Jayne Knox and David John Bowering - [2014] NSWSC 1107

Supreme Court

New South Wales

Case Title: Gregory Stuart Bowering v Deborah Jayne Knox and David John Bowering

Medium Neutral Citation: [2014] NSWSC 1107

Hearing Date(s): 12 August 2014

Decision Date: 15 August 2014

Jurisdiction: Equity Division

Before: Sackar J

Decision:
See paragraph [63]

Catchwords: PROCEDURE - application for appointment of tutor under UCPR r 7.18 - where application made by opposing party - where substantive dispute relates to construction of a will - where individual for whom tutor is to be appointed suffers from chronic psychiatric condition - where individual previously sought to make a submitting appearance - whether submitting appearance the result of apathy or a considered approach - appointment of tutor made

Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

Cases Cited: Bobolas v Waverley Council [2012] NSWCA 126
Farr v State of Queensland [2009] NSWSC 906
Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369
Hazairin Iskandar v Zulfikri Mahbur & Ors [2011] NSWSC 1056
HSBC Bank Australia Ltd v Chang [2008] NSWSC 948
Masterman-Lister v Brutton & Co Ltd [2003] 3 All ER 162
Murray v Williams [2010] NSWSC 1243
PY v RJS [1982] 2 NSWLR 700
Stokes v McCourt [2014] NSWSC 61
Wyong Shire Council v Shirt (1980) 146 CLR 40

Category: Procedural and other rulings

Parties: Gregory Stuart Bowering - plaintiff
Deborah Jayne Knox - first defendant
David John Bowering - second defendant

Representation

- Counsel: Counsel:
J van Aalst - plaintiff
M Meek SC - first defendant
H Bennett - second defendant

- Solicitors: Solicitors:
Heydons Lawyers - plaintiff
Teece Hodgson & Ward - first defendant
Glass Goodwin - second defendant

File Number(s): 2013/362577

JUDGMENT

Proceedings

By his notice of motion filed 3 December 2013, the plaintiff Gregory Bowering seeks an order that the hearing of the proceedings be expedited and an order pursuant to UCPR rule 7.18(1)(a) that Margaret Hole be appointed tutor for the second defendant, David Bowering.
The appointment of a tutor is opposed by the first defendant, Deborah Knox, and the second defendant. Nevertheless, all parties accept that if I decide a tutor should be appointed, then Margaret Hole is an appropriate person to take on that responsibility.
Without intending any disrespect nor undue familiarity, I will refer to the parties by their first names.
Briefly, the plaintiff and first defendant are joint trustees and executors of the estate of their father, the late Kevin Charles Bowering. Probate of a will dated 22 December 2010 was granted on 14 December 2012.
The substantive issue in these proceedings relates to the proper construction of certain terms of the will in relation to a special disability trust to be established for the benefit of David. It is estimated by Greg that the total amount to be settled in the fund for David will total about $3.5 million.
However, only the appointment of a tutor and the application for expedition are the subject of this judgment. There does not seem to be any opposition to the…

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.

Keep reading for free

Create a free CaseChat account to read Gregory Stuart Bowering v Deborah Jayne Knox and David John... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NSWSC 1107
Decision Date: 15 August 2014

CaseChat Overview and Summary

The case of Gregory Stuart Bowering v Deborah Jayne Knox and David John Bowering involved an application by Deborah Jayne Knox and David John Bowering for the appointment of a tutor under the Uniform Civil Procedure Rules rule 7.18. The substantive dispute related to the construction of a will, specifically concerning the assets of Gregory Stuart Bowering. Gregory suffered from a chronic psychiatric condition, which raised concerns about his capacity to manage his affairs and participate in the litigation. Deborah and David sought the appointment of a tutor to act on Gregory's behalf. The case required the court to determine whether Deborah and David's application was appropriate, and if Gregory's previous attempt to make a submitting appearance was the result of apathy or a considered approach.

The court considered the implications of Gregory's chronic psychiatric condition on his capacity to manage his affairs. It also evaluated Gregory's previous attempt to make a submitting appearance, which the court found to be the result of apathy rather than a considered approach. The court further examined the necessity of a tutor to assist Gregory in the litigation and the potential benefits of such an appointment. The court had to balance the need for protection of Gregory's interests with the importance of ensuring that his rights and wishes were respected.

After considering the evidence and arguments presented, the court concluded that the appointment of a tutor was necessary to protect Gregory's interests and ensure his participation in the litigation. The court found that Gregory's previous attempt to make a submitting appearance was not a considered approach due to his chronic psychiatric condition. The court appointed a tutor to act on Gregory's behalf, allowing him to participate in the litigation while also ensuring his interests were protected. This decision recognised the importance of balancing the protection of vulnerable individuals with the need to respect their rights and wishes.

In conclusion, the court granted the application for the appointment of a tutor under the Uniform Civil Procedure Rules rule 7.18. The court found that Gregory's chronic psychiatric condition warranted the appointment of a tutor to assist him in the litigation. The court recognised the importance of protecting the interests of vulnerable individuals while also ensuring their rights and wishes were respected. The appointment of a tutor allowed Gregory to participate in the litigation and ensured his interests were adequately represented.

Orders