Morgan v Trindall

[2020] NSWDC 935

District Court

New South Wales

Medium Neutral Citation:

Morgan v Trindall [2020] NSWDC 935

Hearing dates:

9 September 2020

Date of orders:

9 September 2020

Decision date:

09 September 2020

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1) The Court appoints the NSW Trustee as tutor for the plaintiff in the proceedings pursuant to r 7.18 of the Uniform Civil Procedure Rules 2005 on the condition proposed in order 3 hereof.

(2) Pursuant to s 14 of the Civil Procedure Act 2005, dispense with the requirement for the tutor's consent required in UCPR 7.16(a) and 7.18(5)(b).

(3)   Order that no costs order may be enforced against the NSW Trustee without leave of the Court, with the intent that leave, if granted, not apply to costs incurred before the grant of leave.

(4)   List for directions.

Catchwords:

CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors

MENTAL HEALTH — Practice and procedure — Costs — NSW Trustee

Legislation Cited:

Civil Procedure Act 2005, s 14

Uniform Civil Procedure Rules 2005, 7.16, r 7.18

Cases Cited:

A v A [2015] NSWSC 1778

SmithvNRMAInsurance Ltd [2016] NSWCA 250

Category:

Procedural rulings

Parties:

Thomas Morgan (plaintiff)
Jason Trindall (first defendant)
Juliet Louise Howell (second defendant)

Representation:

Counsel:

Solicitors:
Moray & Agnew (defendants)

File Number(s):

2015/00263585

Publication restriction:

None

Judgment

1. The plaintiff, Thomas Morgan, was a passenger significantly injured in a motor vehicle accident. He has been found to have general intellectual functioning in the moderate intellectual disability range and remains an incapable person. Mr Morgan was the subject of a financial management order made on 24 November 2016, when his estate was committed to the management of the NSW Trustee & Guardian.

2. The proceedings, commenced in 2015, have now continued for five years and still no tutor has been appointed. The NSW Trustee, although managing the estate of Mr Morgan, does not consent to the appointment of a trustee. I was informed that this was due to a concern regarding the costs of the proceedings, but consent was not proffered even in circumstances where a condition of the appointment might have protected the trustee in respect of costs.

3. In the circumstances of the delay and the need for the matter to move forward in some just fashion, it seems to me that this is one of those rare cases referred to by Lindsay J in A v A,^[1] where the tutor's consent should be dispensed with so long as the NSW Trustee is protected as to costs so far as that lies within the power of this Court to do so, as occurred in the protection of the trustee ordered by the Court of Appeal in Smith v NRMA Insurance Ltd. ^[2]

   1. [2015] NSWSC 1778 at [23].

   2. [2016] NSWCA 250 at [67].

4. I was inclined to postpone the appointment for a further month, but that seems to serve no purpose other than delay. This is a case where the NSW Trustee has already had "an opportunity to survey the field of litigious battle onto which…it has been dumped",^[3] even if the current representative of the NSW Trustee in court today may not have yet had that opportunity.

   3. A v A at [26].

5. The NSW Trustee does not oppose nor consent to such an order.

6. The orders of the Court are:

1. The Court appoints the NSW Trustee as tutor for the plaintiff in the proceedings pursuant to r 7.18 of the Uniform Civil Procedure Rules 2005 on the condition proposed in order 3 hereof.

2. Pursuant to s 14 of the Civil Procedure Act 2005, dispense with the requirement for the tutor's consent required in UCPR 7.16(a) and 7.18(5)(b).

3. Order that no costs order may be enforced against the NSW Trustee without leave of the Court, with the intent that leave, if granted, not apply to costs incurred before the grant of leave.

4. List for directions on Monday, 26 October 2020 at 10am before the list judge.

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Endnotes

Decision last updated: 18 July 2022