Gregory Stuart Bowering v Deborah Jayne Knox and David John Bowering [2014] NSWSC 1107

Gregory Stuart Bowering v Deborah Jayne Knox and David John Bowering [2014] NSWSC 1107

Given the medical evidence, there is a real risk that David may be disadvantaged because he may not be capable of understanding, even with assistance, the issues on which his decision or consent is required. He is therefore a person under legal incapacity for the purposes of these proceedings, and a tutor should be appointed under UCPR r 7.18. Even if statutory incapacity is not established, the court would exercise its inherent power to appoint a tutor to protect his interests.

Parties
Plaintiff: Gregory Stuart Bowering; First Defendant: Deborah Jayne Knox; Second Defendant: David John Bowering
Jurisdiction
Australia
Judgment Date
15 August 2014
Procedural Posture
Notice of Motion in Equity/probate Proceeding / Interlocutory Application (appointment of Tutor and Expedition of Hearing)
Outcome
Tutor appointed for second defendant and hearing expedited.
Legal Topics
Appointment of Tutor Under UCPR R 7.18, Legal Incapacity, Construction of Will, Special Disability Trust
Civil Procedure Equity Succession Law Appointment of Tutor Under UCPR R 7.18 Legal Incapacity Construction of Will Special Disability Trust

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Parties

Gregory Stuart Bowering

Plaintiff

Deborah Jayne Knox

First Defendant

David John Bowering

Second Defendant

Procedural Posture

Notice of Motion in Equity/probate Proceeding / Interlocutory Application (appointment of Tutor and Expedition of Hearing)

Legal Issues

  1. 1 Whether David John Bowering is a person under legal incapacity within the meaning of the Civil Procedure Act 2005 and UCPR r 7.18
  2. 2 Whether a tutor should be appointed for the second defendant
  3. 3 Whether the making of a submitting appearance by David was the product of apathy or a considered approach

Ratio Decidendi

Given the medical evidence, there is a real risk that David may be disadvantaged because he may not be capable of understanding, even with assistance, the issues on which his decision or consent is required. He is therefore a person under legal incapacity for the purposes of these proceedings, and a tutor should be appointed under UCPR r 7.18. Even if statutory incapacity is not established, the court would exercise its inherent power to appoint a tutor to protect his interests.

Court Disposition

Tutor appointed for second defendant and hearing expedited.

Orders

  • Margaret Hole appointed tutor for the second defendant, David John Bowering, pursuant to UCPR r 7.18(1)(a).
  • Hearing of the proceedings to be expedited.