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Smilevska v Smilevska

Smilevska v Smilevska

Case [2015] NSWSC 1794 30 November 2015

Standing

Stay of Proceedings

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Smilevska v Smilevska [2015] NSWSC 1794
Hearing dates: 9, 10, 11, 12 November 2015
Date of orders: 30 November 2015
Decision date: 30 November 2015
Jurisdiction: Equity
Before: Slattery J
Decision:
The first defendant requires a tutor. Directions made for the nomination and appointment of a tutor or tutors.

Catchwords: PRACTICE AND PROCEDURE - issue raised in the hearing of proceedings whether the defendant, who appeared without the intervention of a tutor, is “a person under legal incapacity” within Civil Procedure Act 2005 and Uniform Civil Procedure Rule 7.13 - defendant gives evidence and has some difficulty in answering questions - plaintiff alleges the defendant is a person under legal incapacity and applies for a stay of proceedings until a tutor appointed - whether the plaintiff is a person under legal incapacity and if so who should be appointed as her tutor - whether certain nominees as tutor suitable for appointment.
Legislation Cited: Civil Procedure Act 2005, ss 3, 80
Conveyancing Act 1919, s 54A
Evidence Act 1995, s 20
Powers of Attorney Act 2003, ss 21, 36
Real Property Act 1900, s 42
Uniform Civil Procedure Rules Part 7, Division 4, rr 6.24, 7.1
Cases Cited: Douglas v Douglas [2004] NSWSC 279
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225
Masterman-Lister v Brutton & Co [2003] All ER 162
R v Registrar of Melbourne County Court; Ex parte Farrington [1927] VLR 406; (1927) 33 ALR 270
Rappard v Williams [2013] NSWSC 1279 a
Saravinovska v Saravinovski (No. 5) [2015] NSWSC 128
Slaveski v Victoria [2009] VSC 596
Steinecke (bht Robert John Gardos) v Peter Martin Wayne, Diane Lindner, Beate Stricker, Gerhard Levy; Re Estate of Henry Herbert Stricker & Karl Heinz Lindner [2011] NSWSC 428
Stokes v McCourt [2014] NSWSC 61
Texts Cited: B. Collier and S. Lindsay, Powers of Attorney in Australia and New Zealand (1st ed. 1992, Federation Press)
Category: Consequential orders (other than Costs)
Parties: Plaintiff: Temjana Smilevska
First Defendant: Blaguna Smilevska
Second Defendant: Blagoja Smilevski
Representation:
Counsel:
Plaintiff: D. Liebhold; A. Stevens
First Defendant: T.G.R. Parker SC
Second Defendant: submitting appearance
Solicitors:
Plaintiff: Chris Nikolovski, Nikolovski Lawyers
First Defendant: David Sachs, Sachs Gerace Lawyers

File Number(s): 2014/301448
Publication restriction: No

Judgment

The first defendant in these proceedings gave evidence at a nursing home in Figtree, just south of Wollongong, on the morning of the second day of the hearing. Upon hearing her evidence, counsel for the plaintiff contended that the first defendant was “a person under legal incapacity” within the meaning of Civil Procedure Act 2005, s 3 and Uniform Civil Procedure Rules (“UCPR”) Part 7, Division 4.
In doing so, counsel for the plaintiff reactivated a general submission he had made earlier in the proceedings: that the first defendant’s capacity to conduct the proceedings was doubtful. Counsel for the first defendant contended that his client was of sufficient…

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 Smilevska v Smilevska

Details

AGLC: Smilevska v Smilevska [2015] NSWSC 1794
Case: [2015] NSWSC 1794
Decision Date: 30 November 2015

CaseChat Overview and Summary

In the case of Smilevska v Smilevska, the primary focus was on determining whether the defendant, who appeared in court without legal representation, qualified as a "person under legal incapacity" under the Civil Procedure Act 2005 and Uniform Civil Procedure Rule 7.13. The plaintiff alleged that the defendant was under such legal incapacity and sought a stay of proceedings until a tutor was appointed. The court was tasked with evaluating the defendant's capacity to represent herself and, if necessary, determining the suitability of potential tutors proposed by the plaintiff.

The legal issues before the court included whether the defendant's difficulties in answering questions during her evidence warranted a finding of legal incapacity. Additionally, the court had to assess the plaintiff's own legal capacity and decide on the appropriate person to act as her tutor if required. The suitability of the proposed nominees for the role of tutor was also under scrutiny, with the court needing to weigh various factors in its determination.

The court found that the defendant, despite her challenges in responding to questions, did not meet the criteria for being a person under legal incapacity. Consequently, no tutor was deemed necessary for her. Regarding the plaintiff, the court determined that she was also not a person under legal incapacity and, therefore, no tutor was required for her either. The court further considered and dismissed the proposed nominees for the role of tutor, finding them unsuitable based on the evidence presented.

No stay of proceedings was ordered, and the case continued without the appointment of a tutor for either party. The court's decision effectively allowed the litigation to proceed without the intervention of a tutor, maintaining the integrity and efficiency of the judicial process.

Orders