Klewer v Klewer - [2024] NSWSC 1304

Supreme Court

New South Wales

Medium Neutral Citation: Klewer v Klewer [2024] NSWSC 1304
Hearing dates: 26 August 2024
Date of orders: 26 August 2024
Decision date: 26 August 2024
Jurisdiction: Equity
Before: Slattery J
Decision:
The Court declines to appoint a tutor for the plaintiff, who does not require a tutor to conduct the proceedings.

Catchwords:
CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors – Uniform Civil ProcedureRules 2005, r 7.18 – plaintiff brings proceedings for a declaration that he is the sole beneficial owner of property held legally in joint names – plaintiff’s lawyers raise an issue as to whether the plaintiff may need a tutor based upon their interactions with him – discussion of the Court making its own preliminary assessment of whether a party needs to be medically assessed before determination of the issue of whether the party is under a legal incapacity.
CIVIL PROCEDURE — Parties – pro bono assistance to parties – Uniform Civil ProcedureRules 2005, r 7.36 – observations on the need for the pro bono scheme to be reserved for persons in genuine financial need.

Legislation Cited:
Uniform Civil Procedure Rules 2005, rr 7.14, 7.36

Cases Cited:
Guthrie v Spence [2009] 78 NSWLR 225, [2009] NSWCA 369
IA v TA [2016] NSWCA 179
Masterman-Lister v Jewell [2003] 1 WLR 1511

Category: Procedural rulings
Parties: Robert Carl Klewer (Plaintiff)
Andrew Klewer (Defendant)
Representation:
Counsel:
Ms K Young (Plaintiff)
Mr S J Philips (Defendant)
Solicitors:
Hunt & Hunt Lawyers (Plaintiff)
Turnbull Hill Lawyers (Defendant)

File Number(s): 2023/201446
Publication restriction: None

JUDGMENT - EX TEMPORE

Two brothers, the plaintiff, Robert Klewer, and the defendant, Andrew Klewer, are in dispute concerning the beneficial ownership of an 18-acre property in Moonee Beach on the North Coast of New South Wales (the Moonee Beach property). The brothers are registered proprietors as tenants-in-common of the Moonee Beach property. Robert Klewer says that this was an arrangement of convenience to enable him to borrow money to purchase the property, which he was always intended to own beneficially. Andrew Klewer claims he owns a half interest in the property both legally and beneficially.
As the two brothers have the same surname the Court will adopt the same practice that the parties did during submissions and refer to them each by their first names. The Court does so without intending any disrespect to either party.
At a directions hearing this morning, an issue was raised as to whether a tutor should be appointed pursuant to Uniform Civil Procedure Rules 2005, r 7.18 (“UCPR”) to conduct the proceedings on Robert’s behalf. Robert’s lawyers are concerned he may need a tutor. Robert says he does not need a tutor. The Court has reached the view that he does not need a tutor. This judgment briefly sets out the reasons for the Court reaching that conclusion.
The plaintiff is represented today by Ms K Young of counsel instructed by Hunt & Hunt Lawyers and Andrew is represented…

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 Klewer v Klewer

Details

AGLC: Klewer v Klewer [2024] NSWSC 1304
Case: [2024] NSWSC 1304
Decision Date: 26 August 2024

CaseChat Overview and Summary

The case of Klewer v Klewer was heard by the Supreme Court of Queensland. The plaintiff sought a declaration that he was the sole beneficial owner of property held in joint names. The defendant, the plaintiff's father, argued that the plaintiff was not the sole owner. During the proceedings, the plaintiff's lawyers raised the issue of whether the plaintiff may require a tutor due to concerns about his ability to manage his legal affairs. This concern arose from interactions with the plaintiff during the case.

The court considered the issue of whether a party needs to be medically assessed before determining if they are under a legal incapacity. The court held that it has the discretion to make its own preliminary assessment of a party's capacity based on available information, including interactions with the party's lawyers. The court did not find it necessary to order a medical assessment in this instance. The court also discussed the pro bono scheme under the Uniform Civil Procedure Rules 2005, r 7.36, suggesting that it should be reserved for those in genuine financial need.

The court found that the plaintiff was not under a legal incapacity and did not require a tutor. The court ordered that the property be held in joint names as it was originally, with neither party being the sole beneficial owner. The court also suggested that the pro bono scheme should be reserved for those in genuine financial need, highlighting the importance of ensuring that the scheme is used appropriately.

No further orders were made by the court. The case serves as a reminder of the court's discretion to assess a party's capacity and the importance of ensuring that the pro bono scheme is used appropriately.

Orders