Elga Steinecke (bht Robert John Gardos) v Peter Martin Wayne, Diana Lindner, Beate Stricker, Gerhard Levy; Re Estate of Henry Herbert Stricker & Karl Heinz Lindner [2011] NSWSC 428

Elga Steinecke (bht Robert John Gardos) v Peter Martin Wayne, Diana Lindner, Beate Stricker, Gerhard Levy; Re Estate of Henry Herbert Stricker & Karl Heinz Lindner [2011] NSWSC 428

The plaintiff was a person under legal incapacity and could not sue without a tutor; the Court would not dispense with that substantive requirement, and Powers of Attorney Act 2003, s 21 did not override the established litigation rule. The proceedings could continue without a representative of Amelia Fleishman's...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
29 March 2011
Procedural Posture
Application for Appointment of Trustees for Sale of Co Owned Real Property Under Conveyancing Act 1919, S 66 G / Principal Judgment in the Equity Division Duty List
Outcome
Trustees appointed for sale of real property held in co-ownership; proceedings ordered to continue in the absence of a representative of the estate of Amelia Fleishman.
Legal Topics
['persons Under Legal Incapacity' 'tutor for Incapable Plaintiff' 'attorney Under Enduring Power of Attorney' 'unrepresented Deceased Estate' 'appointment of Trustees for Sale' 'co Ownership' 'statutory Trust for Sale']
['practice and Procedure' 'real Property' 'equity' 'succession and Estates'] ['persons Under Legal Incapacity' 'tutor for Incapable Plaintiff' 'attorney Under Enduring Power of Attorney' 'unrepresented Deceased Estate' 'appointment of Trustees for Sale' 'co Ownership' 'statutory Trust for Sale']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Application for Appointment of Trustees for Sale of Co Owned Real Property Under Conveyancing Act 1919, S 66 G / Principal Judgment in the Equity Division Duty List

Legal Issues

  1. 1 ['Whether the plaintiff, being incapable of managing her affairs, could commence or carry on proceedings without a tutor.' 'Whether the Court should dispense with UCPR r 7.14 under Civil Procedure Act 2005, s 14.' "Whether Powers of Attorney Act 2003, s 21 allowed attorneys under an enduring power of attorney to commence proceedings in the plaintiff's name without a tutor." 'Whether the proceedings should continue under UCPR r 7.10(2) in the absence of a representative of the estate of Amelia Fleishman.' 'Whether trustees should be appointed under Conveyancing Act 1919, s 66G for sale of the Strathfield property.']

Ratio Decidendi

The plaintiff was a person under legal incapacity and could not sue without a tutor; the Court would not dispense with that substantive requirement, and Powers of Attorney Act 2003, s 21 did not override the established litigation rule. The proceedings could continue without a representative of Amelia Fleishman's estate because of the long passage of time, absence of any apparent competing claim, the submitting or presumed submitting positions of potential beneficiaries, the limited effect of converting the property interest into cash, and the plaintiff's 75% beneficial interest. As the requirements for trustee consent and fitness were satisfied and no reason appeared to refuse relief,...

Court Disposition

Trustees appointed for sale of real property held in co-ownership; proceedings ordered to continue in the absence of a representative of the estate of Amelia Fleishman.

Orders

  • ['Pursuant to UCPR r 7.10(2), the proceedings continue in the absence of a representative of the estate of Amelia Fleishman.' 'David Levi and David Solomans were appointed as trustees of the land being lot five in deposited plan lxxxx, comprised in sub-folios x/xxxxxA, x/xxxxxB, x/xxxxxC, situate at and known as x...