Maurice Sperling v Salo Sperling - [2015] NSWSC 286

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), 7.18A
Cases 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) 142
Category: Consequential orders (other than Costs)
Parties: Plaintiff: Maurice Sperling
First Defendant: Salo Sperling
Second Defendant: Carla Rosen
Representation:
Counsel:
Plaintiff: R Lovas
Second Defendant: R Bianchi
Solicitors:
First Defendant: Mr Patrick See, Lloyd & Lloyd Solicitors as tutor

File Number(s): 2015/12429
Publication restriction: No

EX TEMPORE Judgment

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.
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.
The need for the appointment of a tutor for Salo is undoubted. The evidence before me is that Salo…

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.

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Details

Case: [2015] NSWSC 286
Decision Date: 17 March 2015

CaseChat Overview and Summary

Maurice Sperling filed an application in the Supreme Court of New South Wales against Salo Sperling, who is under legal incapacity, seeking to appoint a tutor for Salo. The urgency of the matter arises from the necessity of a tutor to manage Salo's affairs as the proceedings cannot proceed without one. Given Salo's lack of available friends or family to act in this capacity, the President of the NSW Law Society was requested to nominate an independent solicitor to serve as the tutor. The primary legal issues before the court were who should bear the cost of the solicitor-tutor and the management of any inherent conflicts of duty and interest that might arise.

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.

Orders