Iskandar v Mahbur - [2011] NSWSC 1056

Supreme Court

New South Wales

Medium Neutral Citation: Hazairin Iskandar v Zulfikri Mahbur & Ors [2011] NSWSC 1056
Hearing dates: 7 September 2011
Decision date: 07 September 2011
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Directions made for the plaintiff to approach the President of the Law Society of New South Wales to request him to nominate a solicitor who would be suitable and willing to be appointed as a tutor of the third defendant in these proceedings.

Catchwords: PRACTICE AND PROCEDURE - UCPR, r 7.17 and 7.18 - parties generally - appointment of tutor - party seeks appointment of a tutor for an opposing party, who has no assets - questions of: how such a tutor will be found; how the services of such a tutor will be funded; and whether such a tutor can also act as the solicitor in the proceedings.
Legislation Cited: Uniform Civil Procedure Rules 2005, r 7.17, 7.18
Cases Cited: Deputy Commissioner of Taxation v P [1987] 11 NSWLR 200
Ex Parte; Shearer [1949] QEN 41
Lawrence v Mayes (1900) 16 WN (NSW) 229
Loorham v Loorham (1947) 65 WN (NSW) 98
Sanguinetti v Weaver (1910) 27 WN (NSW) 142
Texts Cited: Parkers Practice in Equity, Second Edition 1949, at 359
Category: Interlocutory applications
Parties: Plaintiff- Hazairin Iskandar
First Defendant- Zulfikri Abu Yazid Mahbur
Second Defendant- Aminah Theglory
Third Defendant- Wahyu Sasterawan
Representation: Plaintiff- Mr M. Tanevski
Plaintiff- Mr B. Archbold
Third Defendant- in person; Wahyu Sasterawan

File Number(s): 2010/122386
Publication restriction: No

EX TEMPORE Judgment

The plaintiff's notice of motion dated 1 September 2011 seeks orders appointing a tutor to the third defendant and supplementary orders requesting the President of the Law Society of New South Wales to nominate a solicitor to act in that capacity. The motion comes before the Court in somewhat unusual circumstances. It is rare but not unprecedented for a party to ask for a tutor to be appointed for an opposing party.

The plaintiff seeks principal relief in the proceedings to set aside an alleged agreement in April 2010 between himself and the second defendant to sell a taxi motor vehicle and taxi licence plate to the second defendant. This agreement is said to have been made through the active encouragement of the third defendant. The plaintiff also alleges that the first defendant unconscionably induced the plaintiff to appoint him (the first defendant) as the plaintiff's attorney in late April 2010. Then in early May 2010 it is said that, with the first defendant acting as the plaintiff's attorney, the alleged sale took place.

The merits of the plaintiff's claim are not for determination today. At the final hearing the plaintiff will seek to set aside the taxi plate sale transaction on grounds of alleged undue influence said to have been practised by the first and third defendants upon the plaintiff, and the alleged unconscionable conduct and alleged breach of fiduciary duty of those persons. The defendants deny these allegations.

The procedural history of the case can be…

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.

Continue reading Iskandar v Mahbur

Details

AGLC: Iskandar v Mahbur [2011] NSWSC 1056
Case: [2011] NSWSC 1056
Decision Date: 07 September 2011

CaseChat Overview and Summary

The matter before the court involved a dispute between Iskandar, the plaintiff, and Mahbur, the defendant. The plaintiff sought to appoint a tutor for the defendant in the absence of assets. The legal issues at hand related to the procedure for appointing a tutor under the Uniform Civil Procedure Rules, specifically rules 7.17 and 7.18. The court had to determine how a tutor would be found, how their services would be funded, and whether the tutor could also act as the defendant's solicitor.

The court examined the relevant rules and noted that a party can apply to the court to appoint a tutor for another party who lacks the capacity to manage their own affairs. However, the court highlighted that the rules do not provide explicit guidance on the process for finding and funding a tutor. Furthermore, the court considered whether a tutor could also serve as the solicitor for the defendant. The court concluded that while the rules do not expressly prohibit a tutor from acting as a solicitor, it would be inappropriate for the same person to hold both roles due to potential conflicts of interest.

The court ruled that the plaintiff's application for the appointment of a tutor should be dismissed. The court found that the plaintiff had not provided sufficient information to enable the court to make an informed decision on how a tutor would be found and funded. Additionally, the court determined that it would not be in the best interests of justice for the same person to act as both a tutor and a solicitor for the defendant. Consequently, the plaintiff's application was dismissed, and no further orders were made.

Orders