Supreme Court
New South Wales
Medium Neutral Citation: Maurice Sperling v Salo Sperling & Anor [2015] NSWSC 286 Hearing dates: 17 March 2015 Date of orders: 17 March 2015 Decision date: 17 March 2015 Jurisdiction: Equity Division - Duty List Before: Slattery J Decision: Mr Patrick See appointed as tutor to the first defendant.
Catchwords: CIVIL PROCEDURE – application to appoint tutor under UCPR, r 7.18(1)(a) – applicant seeks to appoint tutor for respondent – respondent a person under legal incapacity – no friends or family available to act as tutor – urgent proceedings unable to continue without appointment of tutor – President of the NSW Law Society requested to nominate an independent solicitor to act as tutor – who to bear cost of solicitor-tutor -- applicant to indemnify tutor for expenses and costs pending final orders – management of inherent conflicts of duty and interest of solicitor-tutor – Court’s supervisory jurisdiction over appointed tutors sufficient protection from such conflicts. Legislation Cited: Consolidated Equity Rules of 1902, (NSW) r 62
Conveyancing Act 1919 (NSW), s 66G
Uniform Civil Procedure Rules2005 (NSW), rr 7.14(2), 7.18ACases Cited: Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200
Eady v Elsdon [1901] 2 KB 460
Ex parte Shearer [1949] QWN 41
Lawrence v Moyes (1900) 16 WN (NSW) 229
Iskandar v Mahbur & Ors [2011] NSWSC 1056
Loorham v Loorham (1947) 65 WN (NSW) 98
Re PC (An Infant) [1961] Ch 312
Sanguinetti v Weaver (1910) 27 WN (NSW) 142Category: Consequential orders (other than Costs) Parties: Plaintiff: Maurice Sperling
First Defendant: Salo Sperling
Second Defendant: Carla RosenRepresentation: Counsel:
Solicitors:
Plaintiff: R Lovas
Second Defendant: R Bianchi
First Defendant: Mr Patrick See, Lloyd & Lloyd Solicitors as tutor
File Number(s): 2015/12429 Publication restriction: No
EX TEMPORE Judgment
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HIS HONOUR: Salo Sperling, the first defendant, is the father of Maurice Sperling, the plaintiff, and Carla Rosen, the second defendant, in these proceedings. Without intending any disrespect to any of the parties I will call them all by their first names in this judgment, as they are all members of the one immediate family. Maurice, Salo and Carla are the joint owners of a commercial and residential property in Bondi (“the Bondi property”). Maurice has brought proceedings under Conveyancing Act 1919 (NSW) (“Conveyancing Act”), s 66G for their respective interests in that property to be realised by sale through the appointment of trustees for sale.
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The proceedings were commenced by summons on 13 January 2015 which had its first return date on 3 February 2015. The matter has come before me today in the duty list because of the need to appoint a tutor to represent Salo’s interests. The parties rightly brought the matter to the duty list. There is a degree of urgency in everyone’s interests in progressing the proceedings and in order to do that, to appoint a tutor.
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The need for the appointment of a tutor for Salo is undoubted. The evidence before me is that Salo…
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- Case
- [2015] NSWSC 286
- Decision Date
CaseChat Overview and Summary
The court held that the applicant, Maurice, should indemnify the solicitor-tutor for all expenses and costs pending the final orders of the court. This decision was based on the premise that Maurice, as the applicant seeking to continue the proceedings, would benefit from the appointment of the tutor. The court also considered the inherent conflicts of duty and interest that could arise from the solicitor-tutor's dual role but concluded that the court's supervisory jurisdiction over appointed tutors provided sufficient protection against any potential conflicts.
In light of the reasoning provided, the court made orders that Maurice Sperling would indemnify the solicitor-tutor for all expenses and costs pending the final orders of the court. The court also confirmed that the supervisory jurisdiction it held over the appointed tutor was adequate to manage any inherent conflicts that might occur.
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