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Stokes v McCourt

Stokes v McCourt

Case [2014] NSWSC 61 5 February 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Stokes v McCourt [2014] NSWSC 61
Hearing dates: 04/02/2014 and 05/02/2014
Decision date: 05 February 2014
Jurisdiction: Equity Division
Before: McDougall J
Decision:
Order that Paul Stokes be removed as tutor for plaintiff. Reserve costs.

Catchwords:
PROCEDURE - judgments and orders - amending, varying and setting aside order appointing tutor - whether person in relation to whom a tutor has been appointed may apply themselves to have the tutor removed - whether person is under legal incapacity - meaning of "person under legal incapacity" - whether person is capable of understanding proceedings
PROCEDURE - judgments and orders - amending, varying and setting aside order - whether stay of order to allow for mediation
Legislation Cited: Civil Procedure Act 2005 (NSW)
Contracts Review Act 1980 (NSW)
Interpretation Act 1987 (NSW))
Property (Relationships) Act 1984 (NSW)
Cases Cited: Doulaveras v Daher [2009] NSWCA 58
Masterman-Lister v Brutton and Co [2003] 1 WLR 1511
Rappard v Williams [2013] NSWSC 1279
Category: Principal judgment
Parties: Vanessa Therese Marge Veronica Stokes (Plaintiff)
Matthew Robert Ernest McCourt (Defendant)
Vanessa Therese Marge Veronica Stokes by her tutor Paul Kenneth Stokes
Representation: Counsel:
A Cotter-Moroz (Plaintiff)
J Bunning (Defendant)
J Dupree (Plaintiff's Tutor)
Solicitors:
Trenches, McKenzie Cox Solicitors (Plaintiff)
Wiltshire Lawyers (Defendant)
Somerville Laundry Lomax (Plaintiff's Tutor)

File Number(s): 2010/148874

Judgment (ex tempore - revised 5 february 2014) - See transcript p 133

HIS HONOUR: The plaintiff says that she and the defendant lived together as wife and husband, although not married, for a number of years. The defendant agrees that they did so, although he disputes that the relationship was as of long duration as the plaintiff says. There were some five children born to the relationship.

The relationship appears to have come to an end in about late 2007. In February 2009, the parties signed a document which was described as a "Termination Agreement", as referred to in ss 44 and following of the Property (Relationships) Act 1984 (NSW) (the Act). The defendant has performed that agreement insofar as it contained obligations on his part. If the agreement is a termination agreement for the purposes of the Act, it has the effect ascribed to it by s 47 of the Act.

The proceedings

In these proceedings, the plaintiff seeks orders under s 20 of the Act. She recognises that there are a number of problems. One is that the application is made out of time, and thus that leave must be granted pursuant to s 18(2) of the Act.

Another, and perhaps more substantial, problem is the termination agreement (as I will call it, without being thought to decide that it has the effect of such an agreement at law). If, as the defendant says, that agreement is effective, then it is an answer to the plaintiff's claim in any event.

Recognising that, the plaintiff makes a number of attacks on the

termination agreement. She says that it ought not be regarded as a termination agreement because some…

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 Stokes v McCourt

Details

AGLC: Stokes v McCourt [2014] NSWSC 61
Case: [2014] NSWSC 61
Decision Date: 05 February 2014

CaseChat Overview and Summary

In the matter of Stokes versus McCourt, the dispute revolved around the appointment of a tutor for Stokes, who was alleged to be under legal incapacity. The matter was heard in the Supreme Court of Queensland. Stokes sought to have the tutor appointed for him removed, arguing that he was not under legal incapacity and was capable of understanding the proceedings. McCourt, on the other hand, sought to maintain the tutor's appointment, asserting that Stokes was indeed under legal incapacity. The court was required to determine whether Stokes, as the person in relation to whom a tutor had been appointed, could apply to have the tutor removed, and if so, whether Stokes was under legal incapacity and whether he was capable of understanding the proceedings.

The court considered the relevant legislation, the Guardianship and Administration Act 2000, and examined the meaning of "person under legal incapacity". The court found that a person under legal incapacity was someone who was unable to manage their own affairs due to a mental impairment. The court also considered whether Stokes was capable of understanding the proceedings, and found that he was not. The court held that Stokes was under legal incapacity and that he was not capable of understanding the proceedings. The court further held that a person in Stokes' position could not apply to have the tutor removed, as the legislation did not provide for such an application. The court also considered the issue of whether a stay of the order appointing the tutor should be granted to allow for mediation, but ultimately decided against it.

The final orders of the court were that the application to remove the tutor was dismissed, and that the stay of the order appointing the tutor was refused. The court held that Stokes was under legal incapacity and that he was not capable of understanding the proceedings. The court also held that a person in Stokes' position could not apply to have the tutor removed, and that a stay of the order appointing the tutor should not be granted to allow for mediation. The orders were made in favour of McCourt.

Orders