Pauperis v Pauperis - [2023] NSWSC 1136

Supreme Court

New South Wales

Medium Neutral Citation: Pauperis v Pauperis [2023] NSWSC 1136
Hearing dates: 13 September 2023
Date of orders: 13 September 2023
Decision date: 19 September 2023
Jurisdiction: Equity - Duty List
Before: McGrath J
Decision:
Approve proposed settlement in the Deed of Settlement and Release dated 12 September 2023

Catchwords:
PRACTICE AND PROCEDURE – Civil Procedure Act 2005 (NSW), s 76(3) – application for approval of settlement of proceedings involving third defendant who is a person under legal incapacity – settlement approved

Legislation Cited:
Civil Procedure Act2005 (NSW)

Cases Cited:
Budini v Sunnyfield(No 3) [2021] FCA 1540
Fairhurst (bhtNSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388
Pauperis v Pauperis [2020] NSWSC 1470
Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

Category: Principal judgment
Parties: Ralph Udo Pauperis (Plaintiff)
Kurt Werner Pauperis (First Defendant)
Judith Joy Elwing (Second Defendant)
The Public Trustee of Queensland as manager of the estate of Kaspar Dale Pauperis (Third Defendant)
NSW Trustee and Guardian (Fourth Defendant)
Registrar General of NSW (Fifth Defendant)
Representation:
Counsel:
N Allan (Plaintiff)
B Connell (First and Second Defendants)
FFF Salama with A Smyth (Third Defendant)
Fourth Defendant – No Appearance
Fifth Defendant – No Appearance
Solicitors:
Dean Michael Solicitors (Plaintiff)
Fox & Staniland Lawyers (First and Second Defendants)
Makinson d’Apice Lawyers (Third Defendant)

File Number(s): 2019/00065839
Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

Before me is an application pursuant to s 76(3) of the Civil Procedure Act2005 (NSW) for the court's approval of a compromise or settlement of these proceedings. The need for the approval arises because the parties have now reached a settlement of the proceedings in a Deed of Settlement and Release made on 12 September 2023, and the third defendant, Kaspar Pauperis, is a person under legal incapacity.
The evidence before me in support of the application is as follows:

affidavit of Alan Scott Collins sworn 11 September 2023;

affidavit of Erin Tennille Dawson sworn 12 September 2023; and

confidential memorandum of advice dated 11 September 2023 from counsel for the third defendant.

The proceedings have been hard fought, resulting in a judgment of Parker J given on 23 October 2020 after three days of hearing: Pauperis v Pauperis [2020] NSWSC 1470. In a judgment of 200 paragraphs, his Honour made numerous findings of fact and had to apply those unusual facts to complex legal questions involving property and estate law. In this judgment, I will also refer to all parties by their given names, as used by Parker J.
For the sake of brevity, I do not repeat all of those matters of fact in this judgment but incorporate them by reference.
The outcome of Parker J's judgment was that two properties formed part of Lisa's estate. If it is assumed that Kaspar has a one-third interest in Lisa's estate, a question which is yet to be determined by Parker J, and the estate has a total current estimated value of…

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 Pauperis v Pauperis

Details

AGLC: Pauperis v Pauperis [2023] NSWSC 1136
Case: [2023] NSWSC 1136
Decision Date: 19 September 2023

CaseChat Overview and Summary

The matter of Pauperis v Pauperis was heard in the Supreme Court of New South Wales. The dispute involved a claim by the plaintiff, Pauperis, against the first defendant, also Pauperis, with a third defendant who was a person under legal incapacity. The plaintiff sought approval of a settlement agreement that included the third defendant, who could not provide consent due to their incapacity. The third defendant was represented by a litigation guardian.

The central legal issue before the court was whether the settlement agreement could be approved under section 76(3) of the Civil Procedure Act 2005 (NSW) without the consent of the third defendant, who was under legal incapacity. The court needed to consider the relevant statutory provisions and case law to determine if the settlement was in the best interests of the incapacitated party.

The court examined the statutory framework provided by the Civil Procedure Act 2005 (NSW) and relevant case law. It held that the settlement was fair and reasonable and in the best interests of the incapacitated party. The court noted that the settlement agreement provided for the third defendant to receive appropriate compensation and that the litigation guardian had acted in the best interests of the incapacitated party. The court was satisfied that the settlement met the statutory requirements and approved the settlement agreement.

The court granted the application for approval of the settlement agreement, allowing the proceedings to be settled with the incapacitated party. The court's decision was based on the statutory provisions and the evidence presented, ensuring that the incapacitated party's interests were protected.

Orders