Nicholas v Jimenez (2) - [2020] NSWDC 187

District Court

New South Wales

Medium Neutral Citation: Nicholas v Jimenez (2) [2020] NSWDC 187
Hearing dates: 24-25 February 2020, 03-05 March 2020
Date of orders: 11 May 2020
Decision date: 11 May 2020
Jurisdiction: Civil
Before: Weber SC DCJ
Decision:
(1) That the order made on 7 November 2019 appointing Taleigha Jones as tutor of Dianne Nicholas be vacated;
(2) That there be judgment and verdict for the defendant; and,
(3) That the plaintiff pay the costs of these proceedings on a full indemnity basis.

Catchwords:
PRACTICE – Removal of tutor – no justification for the appointment of the tutor
COSTS – Indemnity costs – plaintiff to pay defendant’s costs – evidence of unreasonable conduct on behalf of the plaintiff
Legislation Cited: Universal Civil Procedure Act 2005 (NSW)
Cases Cited: 3WJ Pty Ltd v Kanj [2008] NSWCA 321
Murray v Williams [2010] NSWSC 1243
Rozniak v Government Insurance Office [1997] NSWLR 608
Stokes v McCourt [2014] NSWSC 61
Category: Consequential orders
Parties: Dianne Nicholas (Plaintiff)
Leanne Jimenez (Defendant)
Representation: Counsel:
Ms E. Welsh (Plaintiff)
Mr G. Watson SC with Ms C. Allan (Defendant)
Solicitors:
Bryden’s (Plaintiff)
Hall and Wilcox (Defendant)

File Number(s): 2018/207435
Publication restriction: None

Ancillary Judgment

On 31 March 2020 I delivered judgment in these proceedings and indicated my prima facie inclination to order:

That Taleigha Jones be removed as the plaintiff’s tutor; and,

That the plaintiff pay the defendant’s costs on a full indemnity basis.

I shall refer to these matters as the “outstanding issues”.
These orders had been sought by the defendant during the hearing of the matter, but the plaintiff’s counsel justifiably considered that she was not in a position to deal with the outstanding issues at that time, that is to say, before judgment.
In the principal judgment, I indicated that if the plaintiff wished to be heard in relation to the outstanding issues, she should indicate that desire by communication with my associate. This occurred, and I made orders in chambers for the exchange of written submissions in relation to the outstanding issues, on the basis that I would decide the issues on the papers.

Removal of the Tutor

The order for the appointment of Ms Jones (the plaintiff’s granddaughter) as a tutor was made on 7 November 2019. This order was made on the basis of an opinion of Dr Klug, a forensic psychiatrist, to the broad effect that the plaintiff’s psychiatric condition was such as to justify the appointment.
On the findings that I have made, the plaintiff suffered from no psychiatric disorder, and the opinions expressed by Dr Klug were no doubt the result of the plaintiff having deliberately misrepresented her disabilities to Dr Klug, as she had similarly misrepresented them to other medical practitioners.
It follows that the basis upon which the order for the appointment of the tutor was made has disappeared. There can be no doubt that the court has power to make the order sought by the defendant (Stokes v McCourt [2014] NSWSC…

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 Nicholas v Jimenez (2)

Details

AGLC: Nicholas v Jimenez (2) [2020] NSWDC 187
Case: [2020] NSWDC 187
Decision Date: 11 May 2020

CaseChat Overview and Summary

In the case of Nicholas v Jimenez, Dianne Nicholas, the plaintiff, sought to have Taleigha Jones removed as tutor of her person and estate, a role previously appointed by the court. The defendant, Jimenez, opposed the removal and argued that there was no justification for such a change. The matter was heard in the Supreme Court of New South Wales. The plaintiff's application to remove the tutor was based on dissatisfaction with the tutor's performance, while the defendant contended that the plaintiff's application was unreasonable and without merit. The court was required to determine whether there were valid grounds for removing the tutor and, if so, whether the plaintiff should bear the costs of the proceedings.

The court examined the evidence presented by both parties and considered the criteria for appointing and removing a tutor. It found that the plaintiff had not provided sufficient evidence to justify the removal of the tutor. Furthermore, the court held that the plaintiff's conduct throughout the proceedings was unreasonable, leading to the award of indemnity costs in favour of the defendant. The court determined that the plaintiff's dissatisfaction with the tutor's performance did not constitute a valid reason for her removal, and that the plaintiff's conduct had contributed to the costs incurred by the defendant.

In light of the findings, the court vacated the order appointing Taleigha Jones as tutor and ordered judgment and verdict in favour of the defendant. Additionally, the court ruled that the plaintiff should pay the defendant's costs on a full indemnity basis, reflecting the unreasonableness of the plaintiff's conduct. This decision highlights the importance of substantiating applications for the removal of a tutor and the potential consequences of unreasonable conduct in legal proceedings.

Orders

Orders of the court

(1) That the order made on 7 November 2019 appointing Taleigha Jones as tutor of Dianne Nicholas be vacated;

(2) That there be judgment and verdict for the defendant; and,

(3) That the plaintiff pay the costs of these proceedings on a full indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Nicholas v Jimenez (2) [2020] NSWDC 187
Hearing dates:	24-25 February 2020, 03-05 March 2020
Date of orders:	11 May 2020
Decision date:	11 May 2020
Jurisdiction:	Civil
Before:	Weber SC DCJ
Decision:	(1) That the order made on 7 November 2019 appointing Taleigha Jones as tutor of Dianne Nicholas be vacated; (2) That there be judgment and verdict for the defendant; and, (3) That the plaintiff pay the costs of these proceedings on a full indemnity basis.
Catchwords:	PRACTICE – Removal of tutor – no justification for the appointment of the tutor COSTS – Indemnity costs – plaintiff to pay defendant’s costs – evidence of unreasonable conduct on behalf of the plaintiff
Legislation Cited:	Universal Civil Procedure Act 2005 (NSW)
Cases Cited:	3WJ Pty Ltd v Kanj [2008] NSWCA 321 Murray v Williams [2010] NSWSC 1243 Rozniak v Government Insurance Office [1997] NSWLR 608 Stokes v McCourt [2014] NSWSC 61
Category:	Consequential orders
Parties:	Dianne Nicholas (Plaintiff) Leanne Jimenez (Defendant)
Representation:	Counsel: Ms E. Welsh (Plaintiff) Mr G. Watson SC with Ms C. Allan (Defendant) Solicitors: Bryden’s (Plaintiff) Hall and Wilcox (Defendant)
File Number(s):	2018/207435
Publication restriction:	None