Turner v O’Bryan-Turner [2019] NSWSC 1340

Turner v O’Bryan-Turner [2019] NSWSC 1340

Angelena May O'Bryan, as executrix, was found to have an interest adverse to that of John, and so could not be appointed as his tutor in the proceedings. The cross-claim was discontinued but may be litigated separately, and procedural directions were set for the continued conduct of the principal proceedings.

Jurisdiction
Australia
Judgment Date
12 September 2019
Procedural Posture
Interlocutory Application in Equity Proceedings / Determination of Party Constitution and Tutor Appointment
Outcome
Cross-claim discontinued by leave, Angelena May O'Bryan substituted as first defendant, procedural orders made for principal claim, costs of cross-claim reserved.
Legal Topics
['appointment of Tutor' 'persons Under Legal Incapacity' 'conflict of Interest' 'appointment and Substitution of Parties' 'case Management']
['civil Procedure' 'equity'] ['appointment of Tutor' 'persons Under Legal Incapacity' 'conflict of Interest' 'appointment and Substitution of Parties' 'case Management']

Case Brief

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Procedural Posture

Interlocutory Application in Equity Proceedings / Determination of Party Constitution and Tutor Appointment

Legal Issues

  1. 1 ['Whether proposed tutors or party representatives have interests adverse to the incapacitated party' 'Whether to appoint or remove a tutor under Uniform Civil Procedure Rules 2005 (NSW)' 'Whether the cross-claim should be discontinued or brought separately' 'Whether family members and representatives have standing to prosecute claims or cross-claims']

Ratio Decidendi

Angelena May O'Bryan, as executrix, was found to have an interest adverse to that of John, and so could not be appointed as his tutor in the proceedings. The cross-claim was discontinued but may be litigated separately, and procedural directions were set for the continued conduct of the principal proceedings.

Court Disposition

Cross-claim discontinued by leave, Angelena May O'Bryan substituted as first defendant, procedural orders made for principal claim, costs of cross-claim reserved.

Orders

  • ["Angelena May O'Bryan be substituted for Wendy Joan O'Bryan Turner as first defendant." "Defendants' solicitor to file amended notice of appearance by 21 September 2019." 'Plaintiffs to file amended statement of claim by 26 September 2019.' 'Leave granted for defendants to file amended defence by 10 October 2019...