In the matter of Nadel Investments Pty Ltd

[2015] NSWSC 2091

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Nadel Investments Pty Ltd [2015] NSWSC 2091
Hearing dates:	10 August 2015
Date of orders:	10 August 2015
Decision date:	10 August 2015
Jurisdiction:	Equity - Corporations List
Before:	Brereton J
Decision:	Notice of motion dismissed.
Catchwords:	DISABILITY – appointment of tutor – where alleged that defendant incapable of giving instructions in proceedings – where defendant has good understanding of the proceedings except for option of abandoning proceedings – inherent power of court to appoint tutor – held, not satisfied of necessity or desirability of appointing tutor.
Legislation Cited:	(NSW) Uniform Civil Procedure Rules 2005, r 7.15, r 7.16
Cases Cited:	Gregory Stuart Bowering v Deborah Jayne Knox and David John Bowering [2014] NSWSC 1107 Re P [2006] NSWSC 1082
Category:	Procedural and other rulings
Parties:	Geoffrey Robert Davis as liquidator of Nadel Investments Pty Ltd ACN 000 229 818 (plaintiff/respondent) Michelle Sarah Armer (defendant/applicant)
Representation:	Counsel: F Mclay (plaintiff/respondent) B Levet (defendant/applicant)   Solicitors: Harris Freidman (plaintiff/respondent) Spectrum Legal Group (defendant/applicant)
File Number(s):	2015/95696

Judgment (ex tempore)

1. HIS HONOUR: By notice of motion filed on 5 August 2015, an application is made that the defendant's cousin Rosita Armer be appointed as tutor for the defendant Michelle Sarah Armer in the proceedings. The application is supported by an affidavit of her solicitor David Leon Rod of 31 July 2015, who deposes that, on 11 June, counsel expressed the view that he was concerned as to whether the defendant was able to properly give instructions, and as a result the defendant was evaluated by a neuropsychologist who, in a report. concluded that she was not able to give proper instructions in relation to the matter.

2. An affidavit of that neuropsychologist, Dr Notman, is also before the Court, together with his report of the neuropsychological assessment of 11 July 2015, which I have read closely. An overall reading of that report demonstrates that although the defendant’s functioning in various domains has a few discrepancies and deficits, it is generally at least average, and in many respects quite good. The psychometric tests which were conducted do not demonstrate any significant deficit in function. The psychologist concluded that, whilst on interview she demonstrated a good understanding of many of the essential elements of the current legal action, she did not understand that one option was abandoning the proceedings, in which case she would still receive some $300,000 in respect of the distribution associated with the disputed share. However, I am far from convinced on the material that that is reflective of any incapacity, as distinct from something that she has forgotten (if ever she was advised of it), or something that she could be brought to understand by appropriate explanation.

3. The psychologist's conclusion that Ms Armer does not have capacity to provide proper instructions as to the conduct of the current legal matter appears essentially dependent on that one matter. He said:

It is unclear why Ms Armer demonstrates poor appreciation of her legal options and the consequences of these in the context of otherwise intact learning, memory, abstract reasoning, mental flexibility, problem solving and judgment on quantitative neuropsychological assessment. One possibility is that Ms Armer was not paying attention or adequately sustaining her concentration during her meetings with her team at Spectrum Legal. Certainly, there is indication of mildly reduced working memory skills on current testing. More speculative is the possibility of rigidity of thought manifesting as poor appreciation of how certain facts apply to her individual situation. Such rigidity can be found associated with bipolar affective disorder but it is noted that there is no quantitative evidence obtained of rigidity of thought on current assessment.

4. If anything in that passage could provide a basis for finding that she was to some extent incapable and required the assistance of a tutor, it would be if it was unreasonable rigidity of thought. But while offering it as a possible explanation, it does not seem to be the psychologist's favoured view. Likewise, if there were evidence before the Court that the defendant were not understanding and acting upon sensible advice, that might provide a strong case for the appointment of a tutor, but that is not what the evidence indicates.

5. I accept that the Court has inherent power to appoint a tutor, and that it can do so notwithstanding that the case might not be an absolute and clear one for an appointment. I also accept that in circumstances where a tutor is not acting, it is open for a person to consent to be appointed as tutor simply by filing a consent under (NSW) Uniform Civil Procedure Rules 2005, r 7.15 and r 7.16. Even if the Court is not affirmatively satisfied that a person is within the definition of "legal incapacity", it retains an inherent power to appoint a tutor where it is appropriate to do so for the purpose of protecting the interests of a person in the particular litigation [see Gregory Stuart Bowering v Deborah Jayne Knox and David John Bowering [2014] NSWSC 1107, [62] (Sackar J); Re P [2006] NSWSC 1082, [8] (Young CJ in Eq)].

6. But on the evidence presently before the Court, I am unconvinced of the necessity or desirability of making such an order at all. I cannot see how the conduct of the proceedings in the defendant's interests, especially given that she is represented, is compromised.

7. There are other, formal, difficulties with the present application. There is no consent of tutor as required by UCPR, r 7.16, and the proposed tutor, although she deposes to an awareness of a number of matters, does not depose that she will be personally liable for the defendant's costs and for any costs that the defendant might be ordered to pay the plaintiff.

8. In those circumstances, without foreclosing the possibility that at some future stage it may become appropriate to appoint a tutor, on the material presently before the Court I am unpersuaded that it is a necessary or appropriate course. While it is probably the case that the Court's leave for an appointment of a tutor is not necessary and, if there are proper grounds, a tutor can be appointed merely by the tutor filing a consent in the appropriate form, I do not think on the material before me that the Court should affirmatively sanction that course. If a tutor were appointed unilaterally, then it would be open to the defendant in an appropriate case to apply for removal of the tutor if so minded.

9. The Court orders that the notice of motion be dismissed.

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Decision last updated: 19 August 2016