Re S - [2011] NSWSC 536

Supreme Court

New South Wales

Medium Neutral Citation: Re S [2011] NSWSC 536
Hearing dates: Thursday, 19 May 2011
Decision date: 19 May 2011
Before: White J
Decision:
Refer to paras [29], [31] and [32]

Catchwords: PRACTICE AND PROCEDURE - notice of motion - plaintiff under legal incapacity - proceedings concluded by consent orders without appointment of tutor - absence of tutor irregularity waived by defendants - subsequent application for appointment of tutor - where plaintiff's solicitor seeking to recover costs incurred in the proceedings - recoverability of costs unaffected by whether tutor now appointed - where plaintiff seeking to enforce consent orders made in the proceedings - orders sought to be enforced not expressed as orders of the court and are agreement between the parties - enforcement of agreement would be by way of claim for specific performance - appointment of tutor not necessary or appropriate for enforcement of consent orders - notice of motion dismissed with no order as to costs
Legislation Cited: Civil Procedure Act 2005
NSW Trustee and Guardian Act 2009
Guardianship Act 1987
Legal Profession Act 2004
Cases Cited: Ex parte Brocklebank (1877) 6 Ch D 358
Yakmor v Hamdoush (No. 2) [2009] NSWCA 284; (2009) 76 NSWLR 148
Category: Procedural and other rulings
Parties: Deleted by reason of orders for anonymity of proceedings
Representation: D D Knoll AM (Plaintiff)
M V Dawson (2nd & 3rd Defendants)
Ms C Phang (NSW Trustee)
Konstan Lawyers (Plaintiff)
Cara Marasco (2nd & 3rd Defendants)

File Number(s): 2010/423600

Judgment

HIS HONOUR: This application is expressed to be made pursuant to reg 7.4 (sic) of the Uniform Civil Procedure Rules for the appointment of a tutor to the plaintiff. The application relates to the affairs of a protected person and I order that the proceedings hereafter be known as Re S .

The application is out of the ordinary because the proceedings were resolved by consent orders made on 23 December 2010. The summons was dismissed. The proceedings had been commenced without the appointment of a tutor and orders were made by consent without any order having been made expressly under s 76 of the Civil Procedure Act 2005 approving of the settlement of the proceedings.

On 21 August 2008 the Guardianship Tribunal appointed the second and third defendants as joint financial managers of the plaintiff whom I will call "S". That appointment was subject to the supervision of the Protective Commissioner. The second and third defendants are the daughters of S.

At the same time the Tribunal appointed the second and third defendants as joint guardians of S.

On 4 February 2010 the Tribunal reviewed the guardianship order of 21 August 2008 concerning S. The order was varied by appointing a lady whom I will call "F", who is said to be the de facto partner of S, as his guardian for a limited period. In those proceedings concerning the review of the guardianship order S had legal representation with the approval of the Tribunal.

Because S is…

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 Re S

Details

AGLC: Re S [2011] NSWSC 536
Case: [2011] NSWSC 536
Decision Date: 19 May 2011

CaseChat Overview and Summary

In the matter of Re S, the case involved the plaintiff, who was under legal incapacity, and the defendants. The dispute centred on the procedures followed during the proceedings, particularly the absence of a tutor for the plaintiff and the recoverability of costs incurred by the plaintiff's solicitor. The case was heard in the court. The primary legal issue before the court was whether the absence of a tutor for the plaintiff during the proceedings constituted an irregularity that would prevent the plaintiff's solicitor from recovering the costs incurred. Additionally, the court had to determine the appropriate process for enforcing the consent orders made during the proceedings.

The court found that the absence of a tutor during the proceedings did not constitute an irregularity that would preclude the plaintiff's solicitor from recovering the costs incurred, as the defendants had waived any such irregularity. The court also determined that the recoverability of costs was not dependent on whether a tutor was subsequently appointed for the plaintiff. Regarding the enforcement of the consent orders, the court held that the orders were not expressed as orders of the court but rather as an agreement between the parties. Consequently, the enforcement of these orders would require a claim for specific performance, and the appointment of a tutor was neither necessary nor appropriate for this purpose. As a result, the notice of motion was dismissed with no order as to costs.

Orders