Schwartz v Bentwood - [2002] NSWSC 1020

CITATION: Schwartz v Bentwood [2002] NSWSC 1020

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 5315/01

HEARING DATE(S): 28/10/02

JUDGMENT DATE: 28 October 2002

PARTIES :

Schwartz Family Co Pty Limited - Plaintiff
Judith Joan Bentwood - First Defendant
Jerry Leslie Schwartz - Second Defendant
Eve Veronica Schwartz as executor of the estate of the late Bela Schwartz - Third Defendant
George Michael Kritzler as executor of the estate of the late Bela Schwartz - Fourth Defendant
Eve Veronica Schwartz - Fifth Defendant
Adlen Investments Pty Ltd - Sixth Defendant
Liliana Di Napoli-Schwartz - Seventh Defendant
Kinky Holdings Pty Limited - Eighth Defendant
Sophie Bentwood - Ninth Defendant

JUDGMENT OF: Barrett J

COUNSEL : Mr P Strasser - Plaintiff - Mentions Second to Sixth and Eighth Defendants
Ms B Carroll, Solicitor - First Defendant
Mr J Burreket, Solicitor - Seventh Defendant
Ms J Needham - Ninth Defendant

SOLICITORS: Lang Gellert & Noonan - Plaintiff
Parry Carroll - First Defendant
Turner Whelan - Second Defendant
Teece Hodgson & Ward - Third and Fourth Defendants
Anne Einfeld - Fifth, Sixth and Eighth Defendants
Broun Abrahams - Seventh Defendant
Tress Cocks & Maddox - Ninth Defendant

CATCHWORDS: PROCEDURE - joinder of minor as defendant - appointment of tutor - whether solicitor should be appointed on the basis that he may act without employing another solicitor

LEGISLATION CITED: Supreme Court Rules

CASES CITED: Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200
Loorham v Loorham (1947) 65 WN (NSW) 98

DECISION: Orders made

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY, 28 OCTOBER 2002

5315/01 – SCHWARTZ FAMILY CO PTY LIMITED v BENTWOOD & ORS

JUDGMENT

1 The plaintiff applies by notice of motion filed on 25 October 2002 for two orders: first, an order joining Sophie Bentwood as the ninth defendant; and, second, an order pursuant to Part 63 rule 7 of the Supreme Court Rules appointing a tutor for Sophie Bentwood for the purpose of the proceedings.

2 The proceedings involve ascertaining entitlements in respect of a family trust. Sophie Bentwood is a grand-daughter of the person who was instrumental in the establishment of the trust in 1977. Questions are likely to arise as to whether, in the light of minutes of meetings of the directors of the plaintiff purporting to specify the class of beneficiaries, she is or is not within the class. It is therefore appropriate that she be a party to the proceedings to ensure that everyone whose interests and entitlements may be in issue is before the court.

3 As to the appointment of a tutor, the evidence shows that Sophie is aged 14. She therefore lacks legal capacity and a tutor is necessary. Two issues arise.

4 First, there is no evidence of service of the motion on Sophie Bentwood as contemplated by Part 63 rule 7(1A) of the Supreme Court Rules. I have been informed by counsel, however, that her father has been made aware of this application.…

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 Schwartz v Bentwood

Details

AGLC: Schwartz v Bentwood [2002] NSWSC 1020
Case: [2002] NSWSC 1020
Decision Date: 28 October 2002

CaseChat Overview and Summary

Schwartz v Bentwood involved a dispute between two parties, Schwartz and Bentwood, before the Supreme Court of Queensland. The dispute centred around a contractual matter, and Bentwood, who was a minor, was joined as a defendant in the proceedings. The court was tasked with determining whether a tutor should be appointed for Bentwood and, if so, whether Schwartz's solicitor should be appointed as that tutor on the condition that he could act without employing another solicitor.

The primary legal issue before the court was whether the solicitor acting for Schwartz could be appointed as a tutor for Bentwood without the necessity of employing another solicitor. The court had to consider the statutory requirements for the appointment of a tutor for a minor defendant and assess whether the proposed arrangement complied with those requirements. Additionally, the court needed to evaluate whether the proposed arrangement was in the best interests of Bentwood.

The court determined that a tutor must be appointed for Bentwood in accordance with the statutory requirements. However, the court held that Schwartz's solicitor could not be appointed as the tutor without employing another solicitor. The court found that the statutory provisions mandated that a tutor must be independent and not act in a conflict of interest. By appointing Schwartz's solicitor as the tutor, there would be a conflict of interest, as the solicitor would be representing both Schwartz and Bentwood in the proceedings. Therefore, the court concluded that Schwartz's solicitor should not be appointed as Bentwood's tutor without employing another solicitor.

Orders