Sowmi v Master Electrical Services Pty Ltd - [2024] NSWSC 176

Supreme Court

New South Wales

Medium Neutral Citation: Sowmi v Master Electrical Services Pty Ltd [2024] NSWSC 176
Hearing dates: 28 February 2024
Date of orders: 28 February 2024
Decision date: 28 February 2024
Jurisdiction: Common Law
Before: Chen J
Decision:
(1) Declare that the plaintiff is not under a legal incapacity for the purposes of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW).
(2) Order that costs of this application be costs in the cause.

Catchwords:
CIVIL PROCEDURE – parties – persons under legal incapacity – tutors – application to remove tutor – whether plaintiff remains a person under legal incapacity

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Mental Health Act 1958 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Azar v Kathirgamalingan (2012) 62 MVR 462; [2012] NSWCA 429
DD v AA; DD v Lewis; DD v PP [2023] NSWCA 140
Farr v State of Queensland [2009] NSWSC 906
Mao v AMP Superannuation Limited [2017] NSWSC 987
Mary Perera by her tutor Marisa Perera v Alpha Westmead Private Hospital trading as Westmead Private Hospital [2022] NSWSC 571
Masterman-Lister v Brutton & Co [2003] 1 WLR 1511
Murray v Williams [2010] NSWSC 1243
PY v RJS [1982] 2 NSWLR 700
Rappard v Williams [2013] NSWSC 1279

Category: Procedural rulings
Parties: Antwan Sowmi (plaintiff)
Master Electrical Services Pty Ltd (first defendant)
Sannout Pty Ltd (second defendant)
LIV Construction Pty Ltd (third defendant)
Nicolas Tannous (fourth defendant)
Workers Compensation Nominal Insurer (cross-claimant and cross-defendant)
Representation:
Counsel:
D Toomey SC with S Holmes (plaintiff)
A Abboud (first and fourth defendants)
N Studdert (cross-claimant and cross-defendant)
Solicitors:
Slater and Gordon Lawyers (plaintiff)
McInnes Wilson Lawyers (first and fourth defendants)
Hall & Wilcox (cross-claimant and cross-defendant)

File Number(s): 2020/00182049
Publication restriction: Nil

JUDGMENT

Introduction

On 22 June 2017, Antwan Sowmi (‘the plaintiff’), a plumber employed by Blockbuster Group (NSW) Pty Ltd, fell a substantial distance – the estimates are between approximately 4.5m and 8m – whilst working on a building site in Wiley Park, NSW. The plaintiff suffered significant injuries in consequence, including a traumatic brain injury and various neurocognitive disabilities secondary to that injury.
The plaintiff commenced proceedings for damages, for the injuries, loss and damage suffered by him in that fall, against a number of defendants by statement of claim filed on 19 June 2020. Those proceedings were commenced without a tutor. However, around the time of filing an amended statement of claim on 28 May 2021, a tutor was appointed, being the plaintiff’s wife (Anita Sowmi), and since that time the proceedings have been conducted on that basis.
The plaintiff, by amended notice of motion filed in Court without objection, seeks a declaration that he is no longer under legal incapacity.
In support of the declaration sought, the following evidence was read without objection:

an affidavit of the plaintiff sworn 4 December 2023;

an affidavit of Anita Sowmi sworn 4 December 2023; and

two affidavits of Larissa Atkinson, the plaintiff’s solicitor, sworn 27 February 2024…

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 Sowmi v Master Electrical Services Pty Ltd

Details

AGLC: Sowmi v Master Electrical Services Pty Ltd [2024] NSWSC 176
Case: [2024] NSWSC 176
Decision Date: 28 February 2024

CaseChat Overview and Summary

Sowmi, an individual under legal incapacity, was represented by a tutor in a legal action against Master Electrical Services Pty Ltd. The dispute revolved around allegations of defective electrical work, which had resulted in damage to Sowmi's property. The matter was heard in the Supreme Court of New South Wales, where the central legal issue was whether the plaintiff, represented by a tutor, retained their status as a person under legal incapacity for the purposes of the proceedings. Specifically, the court needed to determine if the plaintiff's marriage to an Australian citizen and the subsequent acquisition of permanent residency in Australia meant that they were no longer subject to legal incapacity.

The court examined the relevant provisions of the Guardianship Act 1987 (NSW), which stipulates that a person under legal incapacity can be represented by a tutor in legal proceedings. It was argued by Master Electrical Services Pty Ltd that Sowmi's changed circumstances, including her marriage and residency status, meant that she was no longer subject to legal incapacity, and therefore, the tutor should be removed. The court considered whether these changes had the effect of altering the plaintiff's status under the Guardianship Act, and thus, the appropriateness of the tutor's continued representation. The court ultimately concluded that while the plaintiff's circumstances had changed, her status as a person under legal incapacity had not been affected by her marriage or residency status.

The Supreme Court found that the plaintiff remained a person under legal incapacity and that the tutor's representation was valid and necessary for the continuation of the proceedings. The court held that the legal incapacity of a person is determined by their ability to manage their affairs, and that the changes in the plaintiff's personal circumstances did not negate her need for representation by a tutor. The court's decision confirmed the continued appropriateness of the tutor's role in the case, ensuring that the plaintiff's interests were properly represented throughout the litigation process. The orders of the court confirmed that the tutor would remain as the plaintiff's representative and that the case would proceed with the tutor's continued involvement.

Orders