Shapiro v Jacobson - [2014] NSWSC 1960

Supreme Court

New South Wales

Medium Neutral Citation: Shapiro v Jacobson [2014] NSWSC 1960
Hearing dates: 4 April 2014
Date of orders: 11 April 2014
Decision date: 11 April 2014
Before: Garling J
Decision:
(1)Pursuant to s 77(4) of the Civil Procedure Act 2005, the sum of $29,870.35, be paid out of the monies held in Court for the plaintiff to Terence Stern Trust Account to be applied for payment of outstanding solicitor’s costs and disbursements, including counsel’s fees.
(2)Pursuant to s 77(4) of the Civil Procedure Act 2005, the sum of $14,979.50, be paid out of the monies held in Court for the plaintiff to the tutor, Bianca Maria Shapiro, by way of reimbursement for disbursements paid.
(3)Pursuant to s 77(4)(a) of the Civil Procedure Act 2005, the balance of the monies held in Court for the plaintiff, after the payments referred to in Orders 1 and 2 are made, is to be paid to the NSW Trustee and Guardian to be held and applied in accordance with s 78(1) of the Civil Procedure Act 2005
Catchwords: COSTS - civil - substantive proceedings settled - costs to be paid by defendant - plaintiff a minor - judgment sum monies paid into and held in Court - application for order pursuant to Civil Procedure Act 2005, s 77(4) that the difference between the amount for costs paid and the total legal fees and disbursements to be paid out of the sum held in Court - application for order that the balance of monies in Court be paid to the NSW Trustee & Guardian - whether Court comfortably satisfied that costs reasonably incurred - whether for benefit of infant party - whether tutor akin to trustee conducting litigation in respect of, or for the benefit of, an infant beneficiary - whether in the interests of justice and the infant plaintiff to make orders
Legislation Cited: Civil Procedure Act 2005
Declaration of Titles Act 1862 (25 & 26 Vict. c.67)
Legal Profession Act 2004
Cases Cited: Damant v Hennell (1886) 33 Ch. D. 224
Ronayne v Anstead (1891) 12 A.L.T. 159
Dissidomino by her next friend Dissidomino v Butcher Paull and Calder [2005] WASCA 210
Farrell by her next friend Ronald Waugh v Royal Kings Park Tennis Club (Incorporated) [2007] WASCA 173
J by his litigation guardian Vardanega v Australian Capital Territory [No 2] [2011] ACTSC 36
Murray v Kirkpatrick (1940) 57 WN (NSW) 162
NSW Insurance Ministerial Corporation v Abualfoul [1999] FCA 433; (1999) 94 FCR 247
Pritchard v Roberts (1873) LR 17 Eq 222
Steeden v Walden (1910) 2 Ch 393
Stephenson v Geiss [1998] 1 Qd R 542
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Matthew Shapiro (P)
Dr Stanley Jacobson (D)
Representation:
Counsel:
I Butcher (P)
Ex parte
Solicitors:
Terry Stern (P)

File Number(s): 2009/297664
Publication restriction: Not Applicable

___________________________________________________________________

Judgment

The Nature of the Proceedings

Matthew Harry Shapiro was born on 12 November 2002.
In 2009, he commenced proceedings in this Court claiming damages from…

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 Shapiro v Jacobson

Details

AGLC: Shapiro v Jacobson [2014] NSWSC 1960
Case: [2014] NSWSC 1960
Decision Date: 11 April 2014

CaseChat Overview and Summary

The case of Shapiro v Jacobson involved a dispute concerning costs and the settlement of substantive proceedings. The plaintiff, Shapiro, who was a minor, had entered into a settlement agreement with the defendant, Jacobson, with the amount being paid into and held by the court. Shapiro, through his tutor, applied to the court to determine the distribution of the remaining funds held by the court after deducting the costs paid. The application sought an order under section 77(4) of the Civil Procedure Act 2005 to direct that the balance be paid to the NSW Trustee & Guardian for the benefit of the minor plaintiff. The court was required to decide whether it was comfortably satisfied that the costs reasonably incurred were for the benefit of the minor and whether the tutor was akin to a trustee conducting litigation for the benefit of an infant beneficiary. Furthermore, the court had to consider if making such an order was in the interests of justice and the minor plaintiff.

The court considered the statutory framework provided by the Civil Procedure Act 2005 and the obligations of a tutor in managing litigation on behalf of a minor. It assessed whether the costs paid were reasonable and necessary and if the tutor acted in the best interest of the minor. The court also examined whether the tutor could be considered analogous to a trustee for the purposes of the application. The decision hinged on whether the court could be satisfied that the costs were indeed for the benefit of the minor and whether it was just and equitable to order the balance to be paid to the Trustee & Guardian.

After careful deliberation, the court concluded that it was comfortably satisfied that the costs were reasonably incurred and for the benefit of the minor. The court found that the tutor's role in this context was sufficiently analogous to that of a trustee. Consequently, the court determined that making the order in question was in the interests of justice and the minor plaintiff. The application was thus granted, and an order was made directing that the balance of the funds held by the court be paid to the NSW Trustee & Guardian for the benefit of the minor plaintiff.

Orders