Malouf by his tutor Malouf v Davoren-Whereat

[2024] NSWSC 861

Supreme Court

New South Wales

Medium Neutral Citation:

Malouf by his tutor Malouf v Davoren-Whereat [2024] NSWSC 861

Hearing dates:

15 July 2024

Date of orders:

15 July 2024

Decision date:

15 July 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1) Connor John Malouf is no longer a person under legal incapacity under s 3 and 76 of the Civil Procedure Act 2005 (NSW), and r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW);

(2) Sam Malouf is removed as tutor to Connor John Malouf, pursuant to r 7.18 of the Uniform Civil Procedure Rules 2005 (NSW); and

(3) There will be no order as to costs.

Catchwords:

CIVIL PROCEDURE – parties – persons under legal incapacity – tutors – person no longer under legal incapacity – tutor removed

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 3, 76

Uniform Civil Procedure Rules 2005 (NSW), r 7.14

Category:

Principal judgment

Parties:

Connor John Malouf by his tutor Sam Malouf (Plaintiff)
Kurt Davoren-Whereat (Defendant)

Representation:

Counsel:
R. Royle (Plaintiff)
D. Kelly (Defendant)

Solicitors:
Veritas Law Firm (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2020/0014879

Publication restriction:

Nil

JUDGMENT

1. Before the Court is a July 2024 motion by which a declaration is sought that Mr Connor John Malouf is not a person under legal incapacity within the meaning of ss 3 and 76 of the Civil Procedure Act 2005 (NSW) and r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW), as well as an order removing his father, Mr Sam Malouf, as his tutor in the proceedings.

2. The application is supported by affidavits which both Connor Malouf and Sam Malouf have sworn. The defendant consents to the orders which are sought. His case being that it accords with a report of Professor Mattick which he served in the proceedings, which is annexed to Mr Sam Malouf's affidavit.

3. In his affidavit, Mr Sam Malouf explains how it was that after the proceedings were commenced in the District Court by his son, he came to be appointed his tutor, given the consequences of injuries which Connor has suffered, which have become the subject of the proceedings and resulting psychiatric assessments.

4. He also explains how the current application came to be made, given improvements in Connor Malouf's conditions, which are supported by reports emanating from Dr Allnutt, which are also attached to the affidavit. The most recent of which is a letter of 29 May 2024, in which Dr Allnutt explains the basis on which he has come to conclude that at present Connor Malouf has adequate capacity to manage his own affairs.    

5. Sam Malouf explains why he agrees, and Connor Malouf in his affidavit also explains why it is that he now also believes he is in a position to manage his own financial affairs, no longer having problems in understanding advices which have been provided to him and his father, regarding the proceedings that he brought, and a settlement which the parties have arrived at.

6. There is no question about the Court's power to remove a tutor. That being provided for in r 7.18 of the Uniform Civil Procedure Rules. On the evidence that is before me, which I have explained, I am satisfied that it is open to conclude that Connor Malouf is no longer a person under legal incapacity within the meaning of that term, which is defined in s 3 of the Civil Procedure Act, and that accordingly, it is appropriate to exercise the Court's undoubted discretion to make the declaration and orders which the parties have agreed.

Orders

7. For these reasons I declare that Mr Connor Malouf is no longer a person under legal incapacity within the meaning of ss 3 and 76 of the Civil Procedure Act and r 7.14 of the Uniform Civil Procedure Rules, and I order that his tutor Mr Sam Malouf now be removed as Mr Connor Malouf's tutor in the proceedings pursuant to r 7.18.

8. The order as to costs will be that there be no order as to costs.

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Decision last updated: 18 July 2024