Wall v Northern Sydney Local Health District

[2019] NSWSC 1239

Supreme Court

New South Wales

Medium Neutral Citation:	Wall v Northern Sydney Local Health District & Ors [2019] NSWSC 1239
Hearing dates:	11 September 2019
Date of orders:	11 September 2019
Decision date:	11 September 2019
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1) Order 4 made by his Honour Justice Harrison on 22 June 2017 is vacated to the extent that it provided for payment out of funds paid into court by the defendants to a private corporate trustee pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW). (2) The funds paid by the defendants into court are to be paid to the New South Wales Trustee and Guardian to be held on behalf of the plaintiff pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW). (3) Each party bear its own costs of the application.
Catchwords:	CIVIL PROCEDURE – change of trustee – funds paid into Court to be paid to New South Wales Trustee and Guardian to hold on behalf of the plaintiff   COSTS – each party to bear its own costs
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 77(3) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Louis Wall (Plaintiff) Northern Sydney Local Health District (First Defendant) Robert Sew Hoy (Second Defendant) Alan Gunn (Third Defendant)
Representation:	Counsel: J Tsang (Plaintiff)   Solicitors: Brydens Lawyers (Plaintiff) Avant Law (Second Defendant)
File Number(s):	2015/148702
Publication restriction:	Nil

EX TEMPORE Judgment

1. A notice of motion was filed by the plaintiff's solicitors on 6 August 2019 seeking orders adjusting the arrangement that had been approved by Harrison J of this Court in June 2017 for payment out of funds paid into court for a settlement involving a young person.

2. It seems from the affidavit of Larissa Atkinson sworn 7 March 2019 that the tutor of the young person instructed Brydens, it seems some time in 2018 or maybe earlier, that he no longer wished to appoint a private trustee, as had been ordered by Harrison J, but chose instead to appoint the NSW Trustee and Guardian to manage the young person's funds. There is an affidavit affirmed on 1 November 2018 to that end authored by the tutor.

3. It seems then a consent order was sent to the defendants requesting their consent to this course, but as I have observed today to the legal representatives at the Bar table, the consent or otherwise of the defendants is otiose to this exercise in my view.

4. Complicating the matter is that it seems communication was provided from Harrison J's chambers to the parties that his Honour would make the necessary order in chambers if the defendants consented. I wonder whether there perhaps has not been some breakdown in communication there to the effect that his Honour was prepared to deal with the matters in chambers if nobody had any objection to that course, as opposed to there being any need for the defendants to indicate their consent to the course proposed now by the plaintiffs.

5. In any event, what has occurred is a delay in payment out of money for the assistance of a child for some two years due to what seems to have been a lack of understanding and application of available mechanisms under the Uniform Civil Procedure Rules 2005 (NSW) to properly deal with this issue.

6. Having considered the material set out in the affidavits of Larissa Atkinson of 7 March 2019 and Paul Creed of 10 September 2019, I am content that the orders sought in respect of the payment out of the funds are appropriate and I make orders as follows:

1. Order 4 made by his Honour Justice Harrison on 22 June 2017 is vacated to the extent that it provided for payment out of funds paid into court by the defendants to a private corporate trustee pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW).

2. The funds paid by the defendants into court are to be paid to the New South Wales Trustee and Guardian to be held on behalf of the plaintiff pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW).

Costs

7. Argument has been heard regarding costs. Mr Tsang on behalf of the plaintiff argued that the second defendant, who is represented today by Ms Faulk from Avant Law, ought to pay the plaintiff's costs of this notice of motion. Ms Faulk explained that her client's position was that, as set out in correspondence forwarded to the plaintiff some time ago, the proceedings are over and Avant Law has no ongoing role in the proceedings and no interest in the orders sought, and in those circumstances the orders sought in the current motion were a matter between the plaintiff and the Court. There is no doubt this is a correct reading of the parties' obligations and roles.

8. I add to this that in a letter dated 6 September 2019, Avant Law communicated to the solicitor for the plaintiff that they consented to the proposed orders 1 and 2. A complicating factor on this issue of costs is that the proposed consent orders that were forwarded to Avant Law seem to have contained in them an order that the second defendant, Avant Law, pay the plaintiff's costs of the application. This is in contradistinction to the order that was actually sought in the motion filed on 6 August 2019, which was that the costs of the application be costs in the proceedings.

9. Neither suggested course is appropriate in the circumstances.

10. The proceedings are complete, so a costs order that abides the outcome of proceedings completed two years ago is somewhat meaningless. I certainly do not consider it appropriate any defendant pays costs for an application that was necessitated by a change of mind of the tutor particularly where a defendant had properly indicated in correspondence that its reading of the rules was to the effect that the application made did not require the second defendant to indicate its consent.

11. In all the circumstances the appropriate costs order is that each party bear its own costs of the application.

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Decision last updated: 18 September 2019