Valverde v Inch - [2009] NSWSC 1203

CITATION: Valverde v Inch [2009] NSWSC 1203

HEARING DATE(S): 9 November 2009

JUDGMENT DATE :
9 November 2009

JURISDICTION: Equity Division
Protective List

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 9 November 2009

DECISION: Plaintiff to have her costs out of Defendant’s estate.

CATCHWORDS: PROTECTIVE JURISDICTION – COSTS – Plaintiff brings application for protection of elderly and infirm person – allegations of manipulation by third party – Defendant dies before application heard on merits – whether Plaintiff should pay costs of application to Defendant’s estate or have her costs out of estate – discretion – principles.

LEGISLATION CITED: NSW Trustee and Guardian Act 2009 (NSW) – s 41(1)

CATEGORY: Separate question

CASES CITED: Bovaird v Guardianship Tribunal & Ors [2009] NSWSC 452.

PARTIES: Aurea Valverde (Plaintiff)
Maude Inch (Defendant)

FILE NUMBER(S): SC P48/09

COUNSEL: S. Neagle (Sol) (Plaintiff)
J. Hassett (Sol) (Defendant)

SOLICITORS: Neagle Lawyers (Plaintiff)
Hassett Dixon (Defendant)

P48/09 Valverde v Inch

JUDGMENT – Ex tempore

9 November, 2009

1 The Plaintiff filed a Summons on 14 October 2009 seeking a declaration that the Defendant is incapable of managing her affairs within the meaning of s 41(1)(a) of the NSW Trustee and Guardian Act 2009 (NSW). The Plaintiff sought an order that she be appointed manager of the estate of the Defendant, and that she or some other suitable person be appointed guardian of the Defendant. The Plaintiff filed several affidavits in support of that Summons.

2 The gravamen of the Plaintiff's allegations was that she had been the very good friend of the Defendant for many years and had cared for the Defendant and the Defendant's brother. She became concerned that the Defendant, who was elderly and infirm, was being manipulated by another person, the partner of the Defendant's brother. She says that she became concerned that the brother's partner had, in effect, taken an overbearing and controlling attitude over the Defendant who was helpless to resist, that the Defendant had been placed in a nursing home against her will by the imposition of the brother's partner, and that the brother's partner was procuring the sale of the Defendant's property at Bondi and intended to use the proceeds of sale basically for her own benefit. It was for that reason, so the Plaintiff said, that she was seeking the appointment of a financial manager under the Act.

3 The proceedings came on for directions, but before they could progress very much further the Defendant died. Accordingly, there is no point to the proceedings and they will necessarily be dismissed. However, the question at issue is costs.

4 There is actually no Defendant in the proceedings at the moment, but the solicitor for the Defendant's brother, who is now the executor of the Estate (although Probate has not been granted) appears today and says that a costs order should be made against the Plaintiff in favour of the estate. I put aside for one moment the fact that Mr Hassett has no standing to appear because he…

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.

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Details

Case: [2009] NSWSC 1203
Decision Date: 9 November 2009

CaseChat Overview and Summary

In the case of Valverde v Inch, the plaintiff, Valverde, sought an application for the protection of an elderly and infirm individual, Inch, alleging manipulation by a third party. Inch, who was the subject of the application, passed away before the application could be heard on its merits. The dispute centred on whether Valverde should be required to pay the costs of the application to Inch's estate or if her costs should instead be paid out of the estate. The court was tasked with exercising its discretion and applying relevant principles to determine the appropriate allocation of costs.

The primary legal issue before the court was whether the plaintiff, having initiated the application, should bear the responsibility for the costs associated with the application, even though the application had not been heard on its merits due to the death of the protected person. The court considered the principles governing the allocation of costs in such circumstances, taking into account the nature of the application and the circumstances leading to the death of the protected person.

The court, after thorough consideration, determined that the plaintiff should not be required to pay the costs of the application to the defendant's estate. Instead, the court ruled that the costs should be paid out of the estate, reflecting a balanced approach that recognised the public interest in protecting vulnerable individuals and the fairness of the outcome in light of the specific circumstances of the case. The court's decision was based on the discretionary powers available to it, and it emphasised the importance of applying the appropriate principles in such sensitive matters.

In accordance with the court's decision, it was ordered that the plaintiff's costs of the application should be paid out of the estate of the deceased defendant. This outcome was reflective of the court's careful consideration of the unique facts and the principles guiding the allocation of costs in cases involving the protection of vulnerable individuals.

Orders