Yu v Western Sydney Local Health District (No 2)

[2016] NSWSC 716

Supreme Court

New South Wales

Medium Neutral Citation:	Yu v Western Sydney Local Health District (No 2) [2016] NSWSC 716
Hearing dates:	2 June 2016
Date of orders:	02 June 2016
Decision date:	02 June 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1)I order that the sum of $765,000 be paid out of Court to the plaintiff's solicitor, Ms Julie Mahony, for distribution to the manager as part of the plaintiff's Estate. (2) I note the manager’s undertaking contained in paragraphs 11 to 12 of his affidavit of 11 May 2016 that he will apply the subject funds to the construction of a facility for the plaintiff's accommodation, that he does not seek any remuneration from the funds for the discharge of his duties, and that any surplus after completion of the construction will be applied to the plaintiff's ongoing maintenance and support. (3) I order that these orders may be entered forthwith.
Catchwords:	PRODEDURE – Interlocutory proceedings – interim payments – where agreed between the parties   TRUSTEE AND GUARDIANSHIP – provision of necessary authority for manager of estate by NSW Trustee and Guardian
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 77(2), 77(4) 82 NSW Trustee and Guardian Act 2009 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 41.3
Category:	Procedural and other rulings
Parties:	Charmaine Yu by her tutor Laurie Yu (Plaintiff) Western Sydney Local Health District (Defendant)
Representation:	Counsel: E Romaniuk SC with T Hickey (Plaintiff)    A Bridges-Webb (solicitor) (Defendant)   Solicitors: Stacks Goudkamp (Plaintiff)    Curwood Lawyers (Defendant)
File Number(s):	2015/77086

ex tempore Judgment –Revised

1. On 24 February 2016 I approved the settlement of a claim for an order for the payment of interim damages under s 82 of the Civil Procedure Act2005 (NSW) in the sum of $765,000 and I ordered that that sum be paid into Court under s 77(2) of the same Act.

2. At that time the evidence before me established that Mr Yu, who is the plaintiff's tutor for the purpose of these proceedings, and her brother, had been appointed manager of her Estate under the provisions of the NSW Trustee and Guardian Act2009 (NSW).

3. The issue which concerned me at that time was that the order of the Civil and Administrative Tribunal appointing Mr Yu as manager, in a notation, was expressed to be subject to Mr Yu obtaining "all necessary authority" from the NSW Trustee and Guardian before he could deal with the Estate. There was no evidence then of any “authority” having been provided.

4. It is also relevant to record that Mr Yu is one of the guardians of his sister appointed by order of the Tribunal under the guardianship legislation and, amongst other things, is empowered to determine his sister's place of accommodation.

5. Mr Romaniuk SC, who appears for the plaintiff with Mr Hickey, is applying for the payment out of the funds paid into court pursuant to liberty previously reserved. He has read further evidence, being another affidavit of his instructing solicitor, Julie Ann Mahony, sworn on 11 May 2016 and an affidavit of the tutor also sworn on 11 May 2016.

6. Attached to Ms Mahony's affidavit is correspondence passing between her and an officer of the NSW Trustee & Guardian who appears to have authority to deal with this matter on behalf of that body. The letter relevantly states that the NSW Trustee and Guardian “approves” the release of the funds totalling $765,000 subject to certain conditions which I need not go into. I am of the view that the conditions are really matters of management as between the NSW Trustee and Guardian and Mr Yu and not matters which need concern the Court at this stage.

7. There is also a subsequent e-mail from the NSW Trustee and Guardian to Ms Mahony which expresses satisfaction with the provision of further information and says that the release of the funds is “supported” by the NSW Trustee & Guardian.

8. I am accordingly satisfied that whatever apparent limitations there may be in respect of Mr Yu's powers as manager of his sister’s estate, he has the necessary authority to receive and deal with the interim payment of damages.

9. As my reasons of 24 February made clear, the purpose of the payment out to the manager is to enable the construction of a suitable facility for the plaintiff's accommodation at her parent's home to be undertaken.

10. I also again record that Mr Yu is a practising solicitor and he is clearly a person whom the Court can trust to act as manager of his sister's estate in accordance with his legal obligations.

11. For these reasons, under s 77(4) of the Civil Procedure Act and r 41.3 of the Uniform Civil Procedure Rules 2005:

1. I order that the sum of $765,000 be paid out of Court to the plaintiff's solicitor, Ms Julie Mahony, for distribution to the manager as part of the plaintiff's estate.

2. I note the undertaking contained in paragraphs 11 to 12 of the manager’s affidavit of 11 May 2016 that he will apply the subject funds to the construction of a facility for the plaintiff's accommodation; that he does not seek any remuneration from the funds for the discharge of his duties; and that any surplus after completion of the construction will be applied to the plaintiff's ongoing maintenance and support.

3. I order that these orders may be entered forthwith.

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Decision last updated: 03 June 2016