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Robinson v Randell

Robinson v Randell

Case [2016] NSWSC 1688 25 November 2016

Jurisdiction

Standing

UCPR rule 7.18(1)(b)

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Robinson v Randell [2016] NSWSC 1688
Hearing dates: 25 November 2016
Date of orders: 25 November 2016
Decision date: 25 November 2016
Jurisdiction: Equity
Before: Hallen J
Decision:
Application for the removal of the second Plaintiff’s tutor and the appointment of the applicant as her tutor dismissed

Catchwords: PRACTICE AND PROCEDURE – Application for removal of second Plaintiff’s tutor – UCPR rule 7.18(1)(b) - Whether tutor has an interest in the proceedings adverse to that of the person under legal incapacity – No adverse interest established
Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Avanes v Marshall [2007] 68 NSWLR 595
CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria (2005) 224 CLR 98; [2005] HCA 53
Coffey v Coffey (No. 2) [2015] NSWSC 338
Cypjayne Pty Ltd v Sverre Rodskog [2009] NSWSC 301
Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200
Douglas v Douglas [2004] NSWSC 279
Gartside v Inland Revenue Commissioners [1968] AC 553
Kennon v Spry (2008) 238 CLR 306; [2008] HCA 56
R v Registrar of Melbourne County Court [1927] VLR 406; (1927) 33 ALR 270
Rappard v Williams [2013] NSWSC 1279
Re Commissioner of Taxation v Vegners [1989] ATC 5274; [1989] FCA 48
Saravinovska v (Chris) Saravinovski; Saravinovski v Saravinovski (No 5) [2015] NSWSC 128
Schmidt v Rosewood Trust Ltd [2003] 2 AC 709
Smilevska v Smilevska [2015] NSWSC 1794
Spellson v George [1987] 11 NSWLR 300
Varma v Varma [2010] NSWSC 785
Vegners v Federal Commissioner of Taxation (1991) 21 ATR 1347
Yakmor v Hamdoush (No 2) [2009] NSWCA 284
Category: Procedural and other rulings
Parties: Ms Sharon Patricia Robinson (first Plaintiff)
Ms Anne Marie Casey as tutor for Valmae Mary Cummings (second Plaintiff)
Mr Aaron Ross Randell (first Defendant)
Mr Paul Hoffmann (second Defendant)
Ms Lynette Ruth Forwood (Applicant)
Representation:
Counsel:
Mr C Harris SC (Plaintiffs)
Mr L Ellison SC (Defendants)
Ms S Warren (Applicant)
Solicitors:
Teece Hodgson & Ward (Plaintiffs)
Unsworth Legal Pty Ltd (Defendants)
Michie Shehadie and Co Solicitors (Applicant)

File Number(s): 2016/255828

Judgment

Introduction

HIS HONOUR: Before the Court, for urgent hearing on 23 and 25 November 2016 (for about two hours in total), was a contested notice of motion to remove the second Plaintiff’s tutor. On 25 November 2016, after the conclusion of the hearing, I refused the relief sought in the notice of motion. I ordered that the applicant’s notice of motion be dismissed and ordered the applicant, Lynette Ruth Forwood, to pay the second Plaintiff’s, and the tutor’s, costs of the application, as well as the costs of the Defendants, who had appeared on each of the days the matter was listed. I indicated that I would provide written reasons and these are the Court’s reasons for making those orders.
The notice of motion, as will be read, was heard urgently, because there is a private mediation 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 Robinson v Randell

Details

AGLC: Robinson v Randell [2016] NSWSC 1688
Case: [2016] NSWSC 1688
Decision Date: 25 November 2016

CaseChat Overview and Summary

The case before the court was an application by the first plaintiff, Robinson, to remove the second plaintiff's tutor, Randell, from the proceedings. The second plaintiff, who was under legal incapacity, had initially been represented by Randell as their tutor. The application to remove the tutor was made pursuant to UCPR rule 7.18(1)(b), which allows for the removal of a tutor where they have an interest in the proceedings that is adverse to that of the person under legal incapacity. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether Randell, as the tutor of the second plaintiff, had an interest in the proceedings that was adverse to that of the second plaintiff. The court considered whether Randell had any personal or proprietary interest in the subject matter of the proceedings that could be deemed adverse to the interests of the second plaintiff. The court also considered whether Randell had any other interest, direct or indirect, that could be considered adverse to the second plaintiff.

In determining the matter, the court found that Randell did not have an interest in the proceedings that was adverse to that of the second plaintiff. The court held that Randell's role as a tutor was to act in the best interests of the second plaintiff and that there was no evidence to suggest that Randell had any conflicting interests. The court also found that there was no evidence to suggest that Randell had any other interest, direct or indirect, that could be considered adverse to the second plaintiff. As a result, the court dismissed the application to remove Randell as the tutor of the second plaintiff.

The court's decision was based on the evidence presented and the legal framework provided by UCPR rule 7.18(1)(b). The court held that Randell had not established an adverse interest in the proceedings and, as such, was not required to be removed as the tutor of the second plaintiff. The court's decision was final and binding, and no further appeals were possible.

Orders