Sobalirov v Bullen

Case [2020] NSWSC 1532


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Sobalirov v Bullen [2020] NSWSC 1532
Hearing dates: 28, 29 September and 1 October 2020
Decision date: 05 November 2020
Jurisdiction:Equity - Expedition List
Before: Sackar J
Decision:

See para [254]-[255]

Catchwords:

GUARDIANSHIP – Guardianship Act 1987 (NSW) ss 25E, 25G – NSW Trustee and Guardian Act 2009 (NSW) s 41 – Parens patriae jurisdiction – Application for financial management order – Where matter transferred to Supreme Court from NCAT – Whether defendant incapable of managing her affairs – Where defendant said to be under the influence of two of her children – Discussion concerning evidence required

Legislation Cited:

Adoption Act 2000 (NSW) s 126

Civil and Administrative Tribunal Act2013 (NSW) s 38(2)

Guardianship Act 1987 (NSW) ss 3(2), 4, 25E, 25G, 25L and 25M(1)(a) or (b)

NSW Trustee and Guardian Act 2009 (NSW) ss 38, 39, 40 and 41

Uniform Civil Procedure Rules r 57.5

Cases Cited:

Antov v Bokan [2018] NSWSC 1474

Bellamy v Bellamy [2018] NSWSC 534

CJ v AKJ [2015] NSWSC 498

Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83

Murphy v Doman (2003) 58 NSWLR 51

P v NSW Trustee & Guardian [2015] NSWSC 579

PY v RJS [1982] 2 NSWLR 700

Re Eve [1986] 2 SCR 388

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482

Secretary, Department of Health & Community Services v JWB & SMB (Marion’s case) (1992) 175 CLR 218

SS Pharmaceuticals v Qantas (1991) 1 Lloyds LR 288

Sudathv Health Care Complaints Commission (2012) 84 NSWLR 474

Szozda v Szozda [2010] NSWSC 804

The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228

Thorne v Kennedy (2017) 263 CLR 85

Tulloch (deceased) v Braybon & Ors (No 2) [2010] NSWSC 650

Texts Cited:

n/a

Category:Principal judgment
Parties: Jane Leslie Sobalirov (plaintiff)
Jean Margaret Bullen (defendant)
Representation:

Counsel:
C Harris SC (plaintiff)
W Muddle SC, I Stanley (defendant)

Solicitors:
Matthews Folbigg Lawyers (plaintiff)
Solomon Tudehope Solicitors (defendant)
File Number(s): 2020/00247484

Judgment

  1. This is the first of at least three pieces of litigation it is anticipated will ensue between a mother and her son and daughter.

  2. In this matter, removed from NCAT under s 25L of the Guardianship Act 1987 (NSW), the issue is whether the Court should appoint a financial manager to manage the defendant mother’s affairs.

  3. Depending upon the outcome other consequential applications may flow and the other pieces of litigation may take a different form and course to that which is currently intended.

  4. Initially I was invited to hear all proceedings together by reason of the identity of the parties and many of the issues but in the end I took the view that only the issue removed from NCAT should be heard separately because of the significance of the result upon the parties and therefore future course of any other piece of litigation.

  5. The present…

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AGLC
Sobalirov v Bullen [2020] NSWSC 1532
Case
[2020] NSWSC 1532
Decision Date

CaseChat Overview and Summary

In the matter of Sobalirov v Bullen, the dispute involved the application for a financial management order concerning the defendant, Bullen. The case was transferred to the Supreme Court of New South Wales from the NCAT, where it was argued that Bullen was incapable of managing her affairs due to being under the influence of two of her children. The primary legal issues the court was required to address were whether Bullen lacked the capacity to manage her financial affairs and, if so, whether the evidence provided was sufficient to support such a claim. The court needed to determine the appropriate legal standards and the burden of proof in such cases.

The court carefully examined the evidence presented to assess Bullen's capacity to manage her affairs. It considered the testimonies and the applicability of the Guardianship Act 1987 (NSW) and the NSW Trustee and Guardian Act 2009 (NSW). The court held that the evidence did not meet the required standard to establish that Bullen was unable to manage her financial affairs. The court emphasised the necessity for clear and convincing evidence to support such a significant decision under the parens patriae jurisdiction. As a result, the court dismissed the application for a financial management order.

The reasoning and outcome of the case highlight the stringent requirements for establishing incapacity in guardianship matters. The court's decision underscored the importance of thorough evidence and legal standards in such sensitive cases. The orders of the court were that the application for a financial management order was dismissed, and Bullen was to retain control over her financial affairs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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