Snelgrove v Swindells - [2007] NSWSC 868

CITATION: Snelgrove & ors v Swindells [2007] NSWSC 868
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 2 and 3 August 2006

JUDGMENT DATE :
6 August 2007

JURISDICTION: Equity Division
Protective List

JUDGMENT OF: Windeyer J at 1

DECISION: Order for part costs made

CATCHWORDS: MENTAL HEALTH - protected estates - person subject to order under Protected Estates Act - application for revocation brought to the Guardianship Tribunal - whether manager should be directed to pay costs of solicitors for protected person seeking revocation out of her estate

LEGISLATION CITED: Protected Estates Act 1983, s33(2), s35
Guardianship Act 1987, s25E, s58, s69(1)

CASES CITED: In re an Incapable Person D [1983] 2 NSWLR 590
JNRD and the Protected Estates Act (1992) 28 NSWLR 728
Re GHI (2005) 221 ALR 589

PARTIES: John Anthony Snelgrove (First Plaintiff)
Andrew Gorman (Second Plaintiff)
Andrew Spearitt (Third Plaintiff)
Brent Hedges (Fourth Plaintiff)
Clive Curwood (Fifth Plaintiff)
Peter Ford (Sixth Plaintiff)
Scott Kennedy (Seventh Plaintiff)
Daryl Swindells (in his capacity as the financial manager of the estate of BMH)

FILE NUMBER(S): SC P28 of 2007

COUNSEL: Mr P Whiteford SC with him Mr G Underwood (Plaintiffs)
Mr L Ellison SC (Defendant)

SOLICITORS: Curwoods (Plaintiffs)
Pigott Stinson (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

WINDEYER J

MONDAY 6 AUGUST 2007

P 28/07

IN CLOSED COURT

JUDGMENT

1 HIS HONOUR: The question for decision is whether solicitors acting for a person whose estate is under management under the Protected Estates Act 1983 should be entitled to their costs in connection with an application to the Guardianship Tribunal to revoke management and guardianship orders in respect of the protected person.

2 The plaintiffs, who are seeking costs for acting for BH, are the partners in Curwoods Lawyers. The defendant is the financial manager of the estate of BH appointed as such by order of the Guardianship Tribunal on 3 February 2005, pursuant to section 25E of the Guardianship Act 1987. The relevant power under that section is to order an estate be subject to management under the Protected Estates Act. On the same day as the financial management order was made, the Tribunal made a limited guardianship order appointing two nieces and a nephew of BH as her guardians with specified powers for a limited period of 12 months. Those powers included a right to determine accommodation on behalf of BH.

3 BH was unhappy about the orders and wished to challenge them. For this purpose she engaged a firm of solicitors, Messrs Bartier Perry, whom she subsequently discharged, and later Messrs Curwoods. I use "engage" in a general way, not implying a contract of retainer. Messrs Curwoods then represented BH in an unsuccessful application to revoke both orders of the Tribunal. The hearing took place in November 2005 and finally on 23 February 2006. The application for revocation of the financial management…

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 Snelgrove v Swindells

Details

AGLC: Snelgrove v Swindells [2007] NSWSC 868
Case: [2007] NSWSC 868
Decision Date: 6 August 2007

CaseChat Overview and Summary

The matter before the court involved an application brought by the Guardianship Tribunal seeking an order that the manager of the estate of a protected person should pay the costs of solicitors for the protected person from her estate. The protected person was subject to an order under the Protected Estates Act and had applied to the Guardianship Tribunal for the revocation of the order. The protected person had not been able to afford the costs of her legal proceedings, and the manager had refused to pay them. The court was required to determine whether the manager should be directed to pay the costs of the protected person's solicitors from her estate.

The court considered the provisions of the Protected Estates Act and relevant case law in reaching its decision. The court noted that the Act did not provide for the payment of costs out of the estate of a protected person in such circumstances. However, the court also noted that the Act did provide for the payment of costs in certain circumstances, such as where a protected person had brought proceedings in the Supreme Court or the Federal Court. The court held that the provisions of the Act which allowed for the payment of costs in those circumstances were not exhaustive, and that the court had inherent jurisdiction to order the payment of costs in appropriate circumstances. The court held that it was appropriate to order the payment of costs in this case, given the protected person's inability to afford the costs and the manager's refusal to pay them.

The court ordered that the manager should pay the costs of the protected person's solicitors from her estate. The court noted that the order was not intended to place an undue burden on the estate, and that the manager should be allowed to recover the costs from the estate in appropriate circumstances. The court also noted that the order was not intended to discourage protected persons from seeking the revocation of orders under the Protected Estates Act, but rather to ensure that they had access to the legal process in appropriate circumstances.

Orders