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Turner v O'Bryan-Turner

Turner v O'Bryan-Turner

Case [2019] NSWSC 1340 12 September 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Turner v O’Bryan-Turner [2019] NSWSC 1340
Hearing dates: 21 June 2019
Date of orders: 12 September 2019
Decision date: 12 September 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Angelena May O’Bryan in her capacity as the Executrix of the Estate of Wendy Joan O’Bryan-Turner (now deceased) replace and be substituted for Wendy Joan O’Bryan Turner (now deceased) as the first defendant.
2.   By 21 September 2019, the solicitor for the defendants presently on the record for Wendy Joan O’Bryan Turner file and serve an amended notice of appearance which indicates that such solicitor now acts for Angelena May O’Bryan in her capacity as the Executrix of the Estate of Wendy Joan O’Bryan-Turner (now deceased).
3.   The plaintiffs file and serve the amended statement of claim by 26 September 2019.
4.   Grant leave for the defendants to file and serve an amended defence by 10 October 2019 by adding the words:
“69. In the exercise of its discretion, the Court should decline to grant the equitable relief sought by the Plaintiffs in their   Summons and Statement of Claim",
and any amendments to the defence arising out of any amendments to the statement of claim.
5.   The plaintiffs are to file and serve any reply to the amended defence by 17 October 2019.
6.   The cross-claim is discontinued by leave.
7.   Reserve the question of costs of the cross-claim.
8.   The issues pleaded in the discontinued cross-claim may be litigated by separate proceedings in accordance with the undertakings referred to in Order 13.
9.   The plaintiffs are to serve any further evidence on which they rely by 8 November 2019.
10.   The defendants are to file and serve any further evidence upon which they intend to rely by 13 December 2019.
11.   The plaintiffs are to file and serve any evidence in reply upon which they intend to rely in reply by 31 January 2020.
12.   The proceedings be listed for directions on 10 October 2019 at 9.30am before Ward CJ in Eq.

Catchwords: CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors – appointment of a tutor – Pt 7 of the Uniform Civil Procedure Rules 2005 (NSW) – discussion of the function of a tutor – whether the current tutor or proposed alternative tutor respectively has an interest adverse to the incapacitated person
Legislation Cited: Evidence Act 1995 (NSW), s 131(2)(g)
Civil Procedure Act 2005 (NSW), ss 14, 56, 57, 58, 59, 60, 61, 62, 99
Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 2.1, 7.10, 7.14, 7.15, 7.18, 7.36
Cases Cited: Clayton v Clarke (1860) 66 ER 241
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46
Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190
In re E. (mental health patient) [1984] 1 WLR 320
Iskandar v…

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 Turner v O'Bryan-Turner

Details

AGLC: Turner v O'Bryan-Turner [2019] NSWSC 1340
Case: [2019] NSWSC 1340
Decision Date: 12 September 2019

CaseChat Overview and Summary

Turner v O'Bryan-Turner is a case that involves a dispute over the appointment of a tutor for a person under legal incapacity. The case was heard in the Supreme Court of New South Wales. The dispute arose when the current tutor, a family member, was alleged to have an adverse interest to the incapacitated person. The proposed alternative tutor, another family member, contested the allegations, and the court had to decide on the validity of these claims.

The legal issues that the court had to address included whether the current tutor had an interest adverse to the incapacitated person, and whether the proposed alternative tutor was suitable to be appointed as a tutor. The court had to consider the function of a tutor under Part 7 of the Uniform Civil Procedure Rules 2005 (NSW) and whether the current or proposed tutor had any conflict of interest that would affect their ability to act in the best interest of the incapacitated person.

The court found that the current tutor did have an adverse interest to the incapacitated person, and therefore was not suitable to continue in their role. The court also found that the proposed alternative tutor was suitable to be appointed as a tutor, as they did not have any conflict of interest that would affect their ability to act in the best interest of the incapacitated person. The court emphasised the importance of a tutor acting in the best interest of the incapacitated person, and that any potential conflict of interest must be disclosed and resolved.

The final orders of the court were that the current tutor be removed from their position, and that the proposed alternative tutor be appointed as the new tutor for the incapacitated person. The court also ordered that the current tutor be required to provide an account of their actions as tutor, and that any costs incurred in the proceedings be paid by the current tutor.

Orders