Snelgrove & ors v Swindells [2007] NSWSC 868

Snelgrove & ors v Swindells [2007] NSWSC 868

Although BH could not enter a binding retainer affecting her estate, the court could direct payment under the Protected Estates Act. The plaintiffs had some basis to act because medical reports supported BH's capacity and the Tribunal had allowed legal representation, and the guardianship review produced some change beneficial to BH. However, Curwoods failed to give relevant information to the medical experts, failed to provide the Watson and Roberts reports to the manager's solicitors, relied too heavily on the neighbours, and conducted the matter too belligerently. The manager and his solicitors also adopted an unnecessarily unhelpful attitude and failed to provide a relevant medical...

Jurisdiction
Australia
Judgment Date
06 August 2007
Procedural Posture
Application for a Direction Under S33(2) of the Protected Estates Act 1983 That the Financial Manager Pay Solicitors' Costs From a Protected Estate / Supreme Court Determination After the Guardianship Tribunal Refused to Make a Costs Order in Revocation Proceedings
Outcome
Order for part costs made
Legal Topics
["payment of Solicitors' Costs From Protected Estate" 'revocation of Financial Management and Guardianship Orders' 'capacity of Protected Person to Retain Solicitors' 'costs in Protective Proceedings']
['mental Health' 'protected Estates' 'guardianship' 'costs'] ["payment of Solicitors' Costs From Protected Estate" 'revocation of Financial Management and Guardianship Orders' 'capacity of Protected Person to Retain Solicitors' 'costs in Protective Proceedings']

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Procedural Posture

Application for a Direction Under S33(2) of the Protected Estates Act 1983 That the Financial Manager Pay Solicitors' Costs From a Protected Estate / Supreme Court Determination After the Guardianship Tribunal Refused to Make a Costs Order in Revocation Proceedings

Legal Issues

  1. 1 ["Whether solicitors who acted for BH in an unsuccessful application to the Guardianship Tribunal to revoke financial management and guardianship orders should have their costs paid out of BH's protected estate." "Whether BH's lack of capacity to enter a retainer prevented any direction for payment of the solicitors' costs from the protected estate." "Whether the conduct of the plaintiffs, the manager and the manager's solicitors justified payment of all, part, or none of the costs from the estate."]

Ratio Decidendi

Although BH could not enter a binding retainer affecting her estate, the court could direct payment under the Protected Estates Act. The plaintiffs had some basis to act because medical reports supported BH's capacity and the Tribunal had allowed legal representation, and the guardianship review produced some change beneficial to BH. However, Curwoods failed to give relevant information to the medical experts, failed to provide the Watson and Roberts reports to the manager's solicitors, relied too heavily on the neighbours, and conducted the matter too belligerently. The manager and his solicitors also adopted an unnecessarily unhelpful attitude and failed to provide a relevant medical...

Court Disposition

Order for part costs made

Orders

  • ['Direct the defendant, as manager of the estate of BH, to pay from her estate 50 per cent of the assessed costs of the plaintiffs up to 23 February 2006 in connection with the application of BH to revoke the guardianship and financial management orders made by the Guardianship Tribunal on 3 February 2005.' 'Direct...