Higgs and Ors v Thompson bht The Protective Commissioner and Ors

[2006] NSWSC 920

CITATION:	Higgs and Ors v Thompson bht The Protective Commissioner and Ors [2006] NSWSC 920 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 September 2006, 5 September 2006
JUDGMENT DATE :	5 September 2006
JUDGMENT OF:	Johnson J at 1
EX TEMPORE JUDGMENT DATE:	09/05/2006
DECISION:	See paragraphs 50ff of judgment.
CATCHWORDS:	MORTGAGES - mortgage given by elderly father over home to secure loan for daughter's business - default under mortgage - claim for possession and to recover money payable under mortgage - judgment given in favour of Plaintiffs against daughter under guarantee - claim by father for relief under Contracts Review Act 1980 by way of indemnity from daughter - relief granted to father
LEGISLATION CITED:	Contracts Review Act 1980 Law Reform (Miscellaneous Provisions) Act 1946 Real Property Act 1900 Protected Estates Act 1983 Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CASES CITED:	AGC (Advances) Limited v West (1984) 5 NSWLR 590 R v Doney (2001) 126 A Crim R 271 Jeans v Cleary [2006] NSWSC 647 Jones v Dunkel (1959) 101 CLR 298 Burke v LFOT Pty Limited (2002) 209 CLR 282
PARTIES:	Keith Arthur Higgs (First Plaintiff) Elizabeth Helen Higgs (Second Plaintiff) Elise Faye Morton (Third Plaintiff) Phillip Smith (Fourth Plaintiff) Benjamin Donald Cluny McPherson (Fifth Plaintiff) Louise Zara McPherson (Sixth Plaintiff) Cassy Atlas (Seventh Plaintiff) John Matthew James Thompson - by his Tutor The Protective Commissioner (First Defendant) Gaille Therese Jang (Second Defendant) Joe A Michael (Third Defendant) David Beale (Fourth Defendant)
FILE NUMBER(S):	SC 11584/04
COUNSEL:	Mr A Rogers (Third, Fourth, Sixth and Seventh Plaintiffs) Mr F Assaf (First and Second Plaintiffs) Mr M Meek (First Defendant) Mr D Priestley (Third Defendant) Mr G Curtin (Fourth Defendant)
SOLICITORS:	Jackson Smith Lawyers (First and Second Plaintiffs) RL Kremnizer & Co (Third, Fourth, Sixth and Seventh Plaintiffs) Craddock Murray Neumann (First Defendant) No appearance for Second Defendant Thomson Playford (Third Defendant) Colin Biggers & Paisley (Fourth Defendant)

LOWER COURT DATE OF DECISION:	N/A
LOWER COURT MEDIUM NEUTRAL CITATION:	N/A

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

5 September 2006

11584/04 Keith Arthur Higgs and Ors v John Matthew James Thompson By His Tutor the Protective Commissioner and Ors

JUDGMENT

1 JOHNSON J: On 29 November 2002, a mortgage was executed with respect to property at 8 Notting Hill Road, Lidcombe being the whole of the land contained in Folio Identifier 18/1292. The mortgagees, under a contributory mortgage, were the seven Plaintiffs in these proceedings, one of whom (the Fifth Plaintiff) has died since the proceedings were commenced and has been removed as a party. The mortgagor was the First Defendant, John Matthew James Thompson, who now appears in these proceedings by his tutor, the Protective Commissioner.

2 The First Defendant, Mr Thompson was born in March 1914 and was 88 years old in November 2002. He had lived at the subject property for some 40 years. Under the mortgage, the sum of $227,000.00 was effectively lent to the Second Defendant, Gaille Therese Jang, and her company, Umbrella Eventz Pty Limited (“Umbrella Eventz”). Ms Jang is the daughter of Mr Thompson. There was default under the mortgage leading to proceedings in this Court, by which the Plaintiffs seek possession of the subject land and recovery of monies due under the mortgage.

3 In addition to the claims by the Plaintiffs against Mr Thompson and Ms Jang, the Plaintiffs also proceeded against Mr Joe Michael, the Third Defendant (an accountant) and Mr David Beale, the Fourth Defendant (a solicitor). Cross Claims were filed as between the various parties.

The Hearing on 4 and 5 September 2006

4 The hearing of proceedings commenced before me yesterday. Several developments occurred during the course of yesterday and today.

5 Firstly, the claim against Mr Beale settled and no relief is sought with respect to him.

6 Secondly, Ms Jang did not appear. A letter (Exhibit 1) was received in my Chambers yesterday from her former solicitors (accompanied by a medical certificate). The letter informed the Court that Ms Jang would not appear and would not take part in the proceedings but would “submit to whatever order the Court makes”. No adjournment was sought by Ms Jang.

7 Thirdly, the Plaintiffs proceeded yesterday against Ms Jang on a guarantee which she had given with respect to the mortgage. For reasons given in my judgment of 4 September 2006, I proceeded to determine that claim in the absence of Ms Jang under Part 29.7 Uniform Civil Procedure Rules. Judgment was given in favour of the First, Second, Third, Fourth, Sixth and Seventh Plaintiffs against Ms Jang in the sum of $295,979.90, which represented the sum outstanding by way of principal and interest under the mortgage in relation to which Ms Jang had provided a guarantee. In addition, I ordered Ms Jang to pay the Plaintiffs’ costs of the proceedings.

8 Fourthly, I was informed that settlement was anticipated, subject to approval of the Court, with respect to other aspects of the proceedings, with two substantive claims remaining. These were:

(a) Mr Thompson's claim by way of Cross Claim for indemnity against Ms Jang based upon the Contracts Review Act 1980 and/or relevant equitable principles, and

(b) Mr Michael’s claim by way of Cross Claim for indemnity against Ms Jang under s.5 Law Reform (Miscellaneous Provisions) Act 1946 and/or the principles of equitable contribution.

9 The hearing continued in Ms Jang's absence and orders are now sought against her by Mr Thompson and Mr Michael. The orders sought are reflected in the Cross Claims which have been served on Ms Jang at an earlier time. Accordingly, she is aware of the nature of relief presently being sought against her.

Some Relevant Facts

10 Several affidavits have been read and documents tendered in support of the present claims. I will refer to the evidence to the extent necessary to determine the present claims for relief.

11 The evidence reveals that Mr Thompson at the age of 88 years, had been an active man who engaged regularly in tennis and dancing. He had lived, as I have mentioned, in the subject property for some 40 years. By 2001, however, Mr Thompson was receiving home care assistance and the property was falling into a state of clutter and disrepair.

12 According to the affidavit of Dr Tuly Rosenfeld, a specialist in geriatric medicine, there were features pointing, by late 2002, to failing judgment and failing ability on the part of Mr Thompson to plan and organise his life. According to Dr Rosenfeld, by September to November 2002, Mr Thompson was suffering from a dementing illness, probably Alzheimer’s disease, which became of sufficient concern to require referral to a specialist by May 2003.

13 Against that background concerning Mr Thompson's state of health at that time, it is appropriate to turn to events in late 2002 which culminated in the mortgaging of his home at 8 Notting Hill Road, Lidcombe.

14 On 27 September 2002, Mr Thompson signed a mortgage in respect of his property at 8 Notting Hill Road, Lidcombe in favour of the Plaintiffs. The transaction was settled on 29 November 2002. Under the mortgage, funds of $227,000.00 were effectively lent by the Plaintiffs to Ms Jang, and her company, Umbrella Eventz. The mortgage was negotiated through a broker, Baccus Investments, pursuant to a loan contract (“the Baccus loan contract”). At no time was Mr Thompson a director or shareholder of Umbrella Eventz.

15 It was envisaged that Umbrella Eventz would service the loan. However, it defaulted under the loan. On 30 October 2003, a Court-appointed liquidator was appointed with respect to Umbrella Eventz on the petition of the Deputy Commissioner of Taxation.

16 The Plaintiffs served a notice dated 11 February 2004 purporting to be given pursuant to s.57(2)(b) Real Property Act 1900 regarding the mortgage. The notice was not complied with.

17 The Plaintiffs commenced the present proceedings by Statement of Claim filed 8 June 2004. A Defence was filed to the claim in July 2004.

18 I turn to consider the relief sought under Mr Thompson's Cross Claim against Ms Jang that she indemnify him from all or any claims made by the Plaintiffs.

Mr Thompson’s Claim Against Ms Jang

19 Mr Meek, counsel for Mr Thompson, submits that the relief sought in Mr Thompson’s Cross Claim against Ms Jang ought be granted. He submits that the relevant contract as between Mr Thompson and Ms Jang is the Baccus loan contract, being the application for mortgage finance dated 31 October 2002 signed by Mr Thompson as applicant, Ms Jang as guarantor, and Ms Jang as director of Umbrella Eventz. Ms Jang was the sole director of Umbrella Eventz at that time.

20 Mr Meek submits that, pursuant to the Contracts Review Act1980 or by application of relevant equitable principles, there are reasons why the Baccus loan contract as between Mr Thompson and Ms Jang, was unjust at the time that it was entered into, and why, as a consequence, Mr Thompson is entitled to be indemnified by Ms Jang in respect of the debt. A number of matters are pointed to in this respect.

21 In September 2002, there was an existing mortgage over the subject property which had been obtained for the benefit of Ms Jang. The existing mortgage was discharged by way of the present mortgage being entered into. Mr Meek submits that, despite the form of the Baccus loan contract, in substance and in truth Ms Jang and Umbrella Eventz were the true borrowers in this case. Whatever the formal title attached to Mr Thompson with respect to this transaction, it is submitted that Ms Jang and her company were the moving parties and the active and interested parties with respect to that contract.

22 Mr Meek submits that I should look at the substance and not the form of what has occurred. In this respect, he relies upon statements in the judgment of Hodgson J (as his Honour then was) in AGC (Advances) Limited v West (1984) 5 NSWLR 590 at 602 and Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 2002, paragraph [3-160].

23 I accept the submissions of Mr Meek in this respect. Applying those principles, it is apparent that Ms Jang and her company Umbrella Eventz were the true borrowers. At no stage, was Mr Thompson anything more than a vehicle or device utilised by Ms Jang as a means to achieving her financial ends.

24 I am satisfied, from the abundance of documentary material before the Court, that Ms Jang and Umbrella Eventz were the true borrowers and that they would be servicing the debt, or at least were intended to be the persons servicing the debt, and not Mr Thompson.

25 It is apparent, from documents which are in evidence, that a number of false statements were made with respect to Mr Thompson's financial position. On the evidence before me, I am satisfied, on the balance of probabilities, that it was Ms Jang who made those false statements.

26 A number of false statements illustrate this finding. In Exhibit 2 (at page 4 and 5), appear documents entitled Application for Mortgage Finance. The document at page 4 relates to Mr Thompson. The document at page 5 relates to Ms Jang. It is apparent that both documents were written by the same person.

27 There are examples of Ms Jang's handwriting elsewhere in the bundle of documents (Exhibit 2). At page 25, there is a direct debit request dated 31 October 2002 written by Ms Jang. At page 26, there is a deed of guarantee signed by Ms Jang in which she notes that she was signing the guarantee “for and on behalf of Umbrella Eventz Pty Ltd”.

28 As the tribunal of fact, I am entitled to make a comparison of handwriting: R v Doney (2001) 126 A Crim R 271 at 280; Jeans v Cleary [2006] NSWSC 647 at paragraph 157. From the comparisons which I have undertaken, it is apparent that the handwriting on the Application for Mortgage Assistance concerning Mr Thompson (Exhibit 2, page 4) is that of Ms Jang.

29 There are a number of features of that document which, Mr Meek submits, are clearly false. Mr Thompson is described as a “semi retired investor”, which does not accord with his occupation as described elsewhere in evidence. More significantly, it is said that Mr Thompson has assets, including a motor vehicle worth $40,000.00, savings in an institution worth $80,000.00, and furniture and personal effects worth $60,000.00. The true position revealed in the evidence does not support those statements. There is a telling representation in another document clearly prepared by Ms Jang. According to this document (Exhibit DW1, Tab 18), Mr Thompson is certifying to Baccus Pty Limited that his current gross income is $75,000.00 per annum. The true facts were that Mr Thompson's income, at that time, was $435.00 a fortnight.

30 The basis for these conclusions emerges from the documents which are in evidence before me and also from the Defence to the Cross Claim (Exhibit 3) filed on behalf of Ms Jang, which contains a number of direct and implied admissions of matters damaging to her position on the present application.

31 Mr Meek has pointed to a further important feature of the case. There was no financial benefit to Mr Thompson as a result of him entering into this mortgage. Indeed, the contrary is the case. To confirm and underline this fact, Mr Meek points to the request by the mortgagee’s solicitors on 15 October 2002 (Exhibit 2, page 20) for a Financial Benefit Requirement to confirm that Mr Thompson would receive a financial benefit as a result of allowing his property to be used as security. This requirement was never satisfied in this case. No doubt, it was not possible to demonstrate any financial benefit to Mr Thompson, because there was no such benefit to him.

32 I am satisfied Ms Jang was the driving force behind the loan to be used by her for business purposes under the corporate guise of Umbrella Eventz. Ms Jang was the point of contact with Mr Thompson for purposes relevant to this transaction. Ms Jang took a series of steps, including, I am satisfied, the provision of false information relating to Mr Thompson, no doubt to facilitate the grant of mortgage which was in her interests.

33 I am satisfied that Mr Thompson stood to gain nothing from the mortgage. All the advantages flowed to Ms Jang.

34 I return, at this point, to the evidence of Dr Rosenfeld. It is the fact that Mr Thompson executed the mortgage and signed a series of documents which, prima facie, give the appearance of comprehension and understanding of the legal commitment which he was making. However, Dr Rosenfeld has expressed the opinion, which I accept, that Mr Thompson had an impaired reasoning and executive function at the time of signing relevant documents in September-November 2002. Dr Rosenfeld said (report, 24 October 2004, pages 9-10):

"5.8 He would not in my opinion [have] had the insight and reasoning to ask about and weigh up the business aspects of Jang or Umbrella Eventz and whether they could reliably service the loan; and similarly weigh up those considerations against the potential risk of his losing his home.

5.9 He was at that time already suffering from memory problems and higher level impairments. He would have significant difficulty in retaining multiple complex aspects of information in a way that would allow him to consider a certain aspect of information, hold it in memory and match and reason that information against further information, hold that and retain it sufficiently to consider the new information in relation to the previous information and so on.

5.10 His ability to reflect and analyse, balance and weigh each item of information against each other, consider the various aspects of the information as a whole, and then finally execute and instruct his ‘advisors’ in with [sic] understanding and reason, taking all the issues into consideration at the same time".

35 If I apply the opinion of Dr Rosenfeld to the objectively known facts of an 88 year old man mortgaging his home to provide financial support to his entrepreneurial daughter in circumstances of likely financial risk, I find ready confirmation of a likely lack of realisation by Mr Thompson of the level of risk involved.

36 There is no evidence from Mr Thompson before the Court. However, that omission is well explained (for the purposes of the rule in Jones v Dunkel (1959) 101 CLR 298) by the affidavits of 1 September 2006 of Dr Jonathon You and Ms Micheala Mellick. Mr Thompson, now 92 years of age, resides in a nursing home. He is dependent on nursing staff for daily activities. He usually presents mild to moderate confusion as a result of dementia due to Alzheimer’s disease.

37 On 8 December 2003, an interim financial management order was made by the Guardianship Tribunal with respect to the affairs of Mr Thompson. On 2 August 2004, an order was made by the Guardianship Tribunal that Mr Thompson's estate be subject to management under the provisions of the Protected Estates Act 1983, and that management of the estate be committed to the Protective Commissioner.

Relevant Provisions in Contracts Review Act 1980

38 I turn to the provisions of the Contracts Review Act1980 for the purpose of determining whether relief should be granted under that Act. I note, in this respect, that the application made by Mr Meek is that the Court should order pursuant to s.7(1)(c) of that Act that the Baccus loan contract be varied so that Ms Jang indemnify Mr Thompson in respect of indebtedness he has to the Plaintiffs.

39 For the purpose of granting relief under s.7 Contracts Review Act 1980, it is necessary to have regard to the matters contained in s.9 of that Act. In determining whether the provision of a contract is unjust in the circumstances relating to the contract at the time it was made, the Court shall have regard to the public interest and to all the circumstances of the case, including consequences or results that arise as specified in s.9(1).

40 Under s.9(2), a number of matters are identified as being factors to which the Court should have regard, to the extent that they are relevant to the circumstances of the case. They include the following factors which are relied on by Mr Meek in this case:

(a) Section 9(2)(a) - whether or not there was any material inequality in bargaining power between the parties to the contract - Mr Meek submits, correctly in my view, that there was a clear inequality in bargaining power as between Ms Jang and Mr Thompson in this case - the reasons for this conclusion ought be apparent from findings made earlier in this judgment.

(b) Section 9(2)(c) - whether or not it was reasonably practicable for the party seeking relief under the Act to negotiate for the alteration or to reject any of the provisions of the contract - in this regard, reliance is placed upon the medical condition of Mr Thompson by late 2002 as a factor operating against the reasonable practicability of negotiation on his part with respect to the contract; I accept this submission.

(c) Section 9(2)(e) - whether or not any party to the contract was not reasonably able to protect his or her interests because of his or her age or the state of his or her physical or mental capacity - it will be clear in this case that Mr Thompson's age, physical, and in particular, mental capacity was such that in so far as he was a party to a contract with his daughter Ms Jang, he was not reasonably able to protect his interests.

(d) Section 9(2)(g) - where the contract is wholly or partly in writing the physical form of the contract and the intelligibility of the language in which it is expressed - given the evidence of Dr Rosenfeld concerning the comprehension of Mr Thompson at relevant times in late 2002, I am satisfied there is a real factor operating in Mr Thompson's favour on this application.

(e) Section 9(2)(j) - whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under the Act by any other party to the contract - in this respect, Mr Meek points, inter alia, to the evidence of Ms Jang making false statements with respect to the financial affairs of Mr Thompson for the purpose of the loan application, and in acting as a type of buffer between Mr Thompson and others with respect to the loan process itself - I am satisfied that the matters to which I have referred in this judgment, including the making of false statements by Ms Jang, constitute undue influence, unfair pressure or unfair tactics - all of this has to be considered against the background of a transaction where Ms Jang had everything to gain and Mr Thompson had everything to lose.

41 Having regard to the public interest and the circumstances of the case, I am satisfied that the relevant contract was and is unjust and that it is appropriate to grant Mr Thompson relief under this Act. I am satisfied that an order should be made under s.7(1)(c) Contracts Review Act 1980. I would, in any event, have granted relief on equitable grounds if it was necessary to resort to those principles.

42 I am satisfied, however, that there is ample foundation for the orders which I propose to make, in due course, under s.7 Contracts Review Act 1980. This is a clear case for the application of the remedial provisions contained in that Act.

Mr Michael’s Cross Claim Against Ms Jang

43 I turn now to the application by Mr Michael. Mr Michael seeks an order under his Cross Claim against Ms Jang, being an order for contribution or full indemnity from Ms Jang with respect to the Plaintiffs’ claim against Mr Michael. In this respect, I note that in proposed terms of settlement, to which I will give effect later today, there is a term whereby Mr Michael is to be liable to the Plaintiffs in the sum of $7,000.00. Although the sum is not great, Mr Priestley, counsel for Mr Michael, submits that in the circumstances of the present case, an order should be made whereby Ms Jang indemnifies Mr Michael with respect to that liability.

44 Mr Priestley adopts the submissions of Mr Meek with respect to the conduct of Ms Jang. He submits that an order for indemnity or contribution can be made in one of two ways in this case. The first is under s.5 Law Reform (Miscellaneous Provisions) Act 1946. The second is by application of the principles of equitable contribution in accordance with the decision of the High Court of Australia in Burke v LFOT Pty Limited (2002) 209 CLR 282 at 292-294.

45 The starting point for Mr Priestley's argument is that a finding of negligence is open and appropriate against Mr Michael. Such a finding is a necessary starting point for s.5(1) Law Reform (Miscellaneous Provisions) Act1946. In the present case, the evidence reveals that Mr Michael was brought into the matter and provided a type of certificate as to the financial ability of Mr Thompson to meet the liability under the mortgage. It appears that there was passing contact between Mr Michael and Mr Thompson.

46 Mr Thompson was 88 years of age. It is clearly established that his state of mind was such that any reasonable delving into his understanding of the transaction, and his ability to meet the liability, would likely have produced the result that certification by Mr Michael would not have occurred. Mr Priestley accepts that a finding of negligence against Mr Michael is appropriate arising from his certification in those circumstances.

47 He submits, however, that the real wrongdoer in the present case is Ms Jang. She was the driving force of the process of application. Mr Michael was brought into the process for a limited purpose, but effectively with Ms Jang driving that process. He submits that Ms Jang was for the purpose of s.5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 a joint tort-feasor, or at least “otherwise” liable in respect of the same damage by way of her liability under the guarantee which was sufficient to found the judgment I gave against her yesterday in favour of the Plaintiffs.

48 It is submitted for Mr Michael that, in circumstances where Ms Jang was responsible for misrepresentations and played the part which she did, Mr Michael's negligence can be regarded as minor and transient and not such as to call for contribution on his part. It is submitted that, in the circumstances of this case, there should be a complete indemnity either by way of application of s.5(2) or the principles of equitable contribution.

49 I am satisfied, in the circumstances of this case, that it is appropriate that Mr Michael be indemnified by Ms Jang with respect to any liability which he has. I am satisfied that the evidence supports a finding of negligence so as to trigger s.5(1) Law Reform (Miscellaneous Provisions) Act 1946. Having made that finding, I am then satisfied that Ms Jang is liable in respect of the same damage either as a joint tort-feasor or under the guarantee - it does not matter which for present purposes. I am satisfied, for the purposes of s.5(2), that it is just and equitable that Ms Jang be ordered to provide a complete indemnity to Mr Michael.

Orders

50 Accordingly, having made those findings, I make the following orders.

51 With respect to the Cross Claim by Mr Thompson, by his tutor the Protective Commissioner, against Ms Jang:

(a) I declare pursuant to s.7(1)(c) and (2), 8 and Schedule 1 Contracts Review Act 1980 that the Baccus loan contract (being the application for mortgage finance dated 31 October 2002) signed by Mr Thompson as applicant, by Ms Jang as guarantor and as director of Umbrella Eventz, which application was accepted by Baccus Investments Limited on 22 October 2002 was, as between Mr Thompson and Ms Jang, unjust at the time that it was entered into;

(b) I declare pursuant to ss.7(1)(c) and (2), 8 and Schedule 1 Contracts Review Act 1980 that the Baccus loan contract be varied, so that notwithstanding any other provision of the contract, Mr Thompson is entitled to be indemnified by Ms Jang in respect of Mr Thompson's indebtedness to the Plaintiffs;

(c) I order pursuant to s.7(1)(c) and (2), 8 and Schedule 1 Contracts Review Act 1980 that Ms Jang indemnify Mr Thompson in respect to Mr Thompson's indebtedness to the Plaintiffs in the sum of $242,000.00;

(d) I order Ms Jang to pay Mr Thompson's costs in respect of the proceedings.

52 With respect to the Cross Claim of Mr Michael against Ms Jang, I make the following orders:

(a) that Mr Michael be fully indemnified by Ms Jang in respect of his liability to the Plaintiffs in the sum of $7,000.00;

(b) that Ms Jang pay Mr Michael's costs of his Cross Claim against her.

53 Before I come to the settlement is there any issue arising out of the judgment I have just delivered and the orders I have made?

[Mr Meek made application, for more abundant caution, for an order dispensing with service on Ms Jang of such documents relied upon at the hearing which had not been served; Mr Priestley made a similar application]

54 With respect to the reasons and orders I have just given and made, Mr Meek has asked me to make one further order. As I indicated in these reasons, and in my judgment yesterday which led to orders in favour of the Plaintiffs against Ms Jang, Ms Jang is absent and the hearing proceeded in her absence in accordance with Part 29.7 Uniform Civil Procedure Rules. She has chosen not to attend the hearing. Evidence has been adduced in support of the claims leading to a number of orders being made adverse to Ms Jang. It is, of course, a consequence of Part 29.7 that evidence will be adduced adverse to the absent party, some of which may be known to that party and some of which may not be known.

55 Clearly, the civil listing arrangements of the Court cannot be defeated by a party choosing not to attend and thereby, in some way, fettering the ability of the parties who do attend to adduce such evidence as they see fit in support of their claims.

56 However, Mr Meek has pointed out that some directions appear to have been given at an earlier stage in these proceedings requiring affidavits to be served. To the extent that evidence may have been relied upon which has not been served upon Ms Jang, a direction is sought in accordance with s.14 Civil Procedure Act 2005 that the Court dispense with any requirement for service of that material. Mr Priestley joins in that application to the extent that an affidavit of Mr Michael was filed in Court and read at this hearing in support of his Cross Claim against Ms Jang.

57 I will make the order sought. I note, however, that the relief sought was, in my view, amply foreshadowed in the Cross Claims of Mr Thompson and of Mr Michael. The affidavit of Dr Rosenfeld, which had been served, provided a substantial foundation for the orders which I have made in favour of Mr Thompson. A number of other affidavits and documents were tendered at the hearing before me. However, it could not be said that Ms Jang was not on notice of the relief being sought against her and of the evidence to be adduced in support of those claims.

58 I make an order pursuant to s.14 Civil Procedure Act 2005 dispensing with any requirement as to the service upon Ms Jang of evidence which has been relied upon at the hearing before me yesterday and today where that evidence has not already been served upon Ms Jang or her solicitors.

[Mr Rogers enquired whether the order under s.14 Civil Procedure Act 2005 extended to the affidavit of debt relied upon by the Plaintiffs and the Court for the purposes of the judgment given on 4 September 2006]

59 The order which I have just made under s.14 Civil Procedure Act 2005 extends to include evidence relied upon by the Plaintiffs in this hearing.

[Mr Rogers handed up signed terms of settlement of outstanding claims for approval under s.76 Civil Procedure Act 2005 ; Mr Meek submits that approval is required under s.76 and the inherent jurisdiction as the First Defendant is a person under legal incapacity]

60 In the course of the last two days, I have delivered a series of judgments with respect to aspects of these proceedings which do not require any further description. I have disposed of the live claims brought by the Plaintiffs against Ms Jang and the Cross Claims brought by Mr Thompson against Ms Jang and by Mr Michael against Ms Jang. Other aspects of the claims having already been settled. The remaining claims for relief are now the subject of agreement between the parties.

61 I have been provided with short minutes of order which have been signed by the legal representatives or the parties remaining in the proceedings. If these orders are made, they will have the effect of bringing to finality all remaining claims in the proceedings.

62 The First Defendant is a person under legal incapacity, and appears in these proceedings by his tutor, the Protective Commissioner. The circumstances in which the Protective Commissioner came to be appointed were referred to in my most recent judgment delivered this afternoon. Because of the legal incapacity of Mr Thompson, s.76 Civil Procedure Act 2005 has application, at least to one of the orders sought in the proposed settlement, being the disposal of his Cross Claim against the Plaintiffs. Apart from that particular claim however, the Court still has a function to discharge, in the exercise of its inherent jurisdiction, concerning the settlement of claims involving a disabled person.

63 There are some unusual features to this case. I have considered the issues raised in the proceedings over the last two days and have been greatly assisted by counsel who appear for the various interests in the matter. Mr Meek has attended carefully to the interests of Mr Thompson and his tutor, the Protective Commissioner. I have no doubt that a clear and thorough assessment has been made of the interests of Mr Thompson resulting in the Protective Commissioner forming a view, in that respect, for the purposes of the proposed terms.

64 I am satisfied that the terms of settlement afford appropriate recognition and protection to the interests of Mr Thompson. To the extent that s.76 has direct application, I am satisfied that the settlement proposed ought be approved by the Court. I express a similar conclusion concerning the balance of the settlement in the exercise of the Court’s inherent jurisdiction.

65 Accordingly, I approve the settlement contained in the short minutes of orders. I enter judgment according to paragraphs 1 and 3 of the short minutes. I make orders in terms of paragraphs 2 and 4, and I note the agreements contained in paragraph 5 of the short minutes which I will sign and date and place with the file.

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11/09/2006 - Correction of spelling error in title of case. - Paragraph(s) N/A