Application of Peter Hodges [2021] NSWSC 55

Application of Peter Hodges [2021] NSWSC 55

Mr Hodges was not a trustee and could not obtain judicial advice under s 63 of the Trustee Act 1925 (NSW) or the inherent jurisdiction to advise trustees. However, as the Court-appointed tutor for Mr Darley, he could seek directions under s 80 of the Civil Procedure Act 2005 (NSW) about the conduct of the Primary Proceedings, including settlement. Given Mr Darley's dementia, Mr Hodges' inability ethically to advance a defence with a proper basis, and the advice and evidence concerning the reopened Settlement Offer, it was in Mr Darley's best interests for Mr Hodges to settle the Primary Proceedings on terms no less favourable than the reopened offer, while any settlement would still...

Jurisdiction
Australia
Judgment Date
05 February 2021
Procedural Posture
Application by a Tutor for Directions in Relation to Possible Settlement of Proceedings Involving a Person Under Legal Incapacity / Directions on Summons Filed 7 September 2020
Outcome
Directions made in relation to possible settlement.
Legal Topics
['persons Under Legal Incapacity' 'tutors' 'settlement of Proceedings' 'judicial Advice' 'trustee Applications for Advice' 'court Approval of Compromise or Settlement']
['civil Procedure' 'equity' 'trusts and Trustees'] ['persons Under Legal Incapacity' 'tutors' 'settlement of Proceedings' 'judicial Advice' 'trustee Applications for Advice' 'court Approval of Compromise or Settlement']

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Procedural Posture

Application by a Tutor for Directions in Relation to Possible Settlement of Proceedings Involving a Person Under Legal Incapacity / Directions on Summons Filed 7 September 2020

Legal Issues

  1. 1 ["Whether Mr Hodges, as tutor for Mr Darley, could obtain judicial advice under s 63 of the Trustee Act 1925 (NSW) or the Court's inherent jurisdiction as if he were a trustee." 'Whether the Court had power under s 80 of the Civil Procedure Act 2005 (NSW) to give directions to Mr Hodges about defending or settling the Primary Proceedings.' "Whether it was in Mr Darley's best interests for Mr Hodges to settle the Primary Proceedings on terms no less favourable than the reopened Settlement Offer." 'Whether any settlement would still require Court approval under s 76(3) of the Civil Procedure Act 2005 (NSW).']

Ratio Decidendi

Mr Hodges was not a trustee and could not obtain judicial advice under s 63 of the Trustee Act 1925 (NSW) or the inherent jurisdiction to advise trustees. However, as the Court-appointed tutor for Mr Darley, he could seek directions under s 80 of the Civil Procedure Act 2005 (NSW) about the conduct of the Primary Proceedings, including settlement. Given Mr Darley's dementia, Mr Hodges' inability ethically to advance a defence with a proper basis, and the advice and evidence concerning the reopened Settlement Offer, it was in Mr Darley's best interests for Mr Hodges to settle the Primary Proceedings on terms no less favourable than the reopened offer, while any settlement would still...

Court Disposition

Directions made in relation to possible settlement.

Orders

  • ['The Court advises the applicant that he would be justified in settling proceedings intituled Links & Anor v Darley Equity 2019/229657 on terms no less favourable to Mr Eric Darley than those terms set out in a letter to the applicant from Heckenberg Lawyers dated 21 September 2020.' 'The applicant should have his...