HSBC Bank Australia Ltd v Chang [2008] NSWSC 948

HSBC Bank Australia Ltd v Chang [2008] NSWSC 948

The evidence did not establish that the defendant was incommunicate or unable to receive communications or express her will with respect to her property or affairs. At its highest, the evidence showed an adjustment disorder with fluctuating anxiety causing resistance to participation in the litigation, and the medical evidence indicated the anxiety was treatable and could improve with medication, counselling or support. The Court was also not persuaded that the inherent parens patriae jurisdiction should be invoked, because the defendant had not been shown to be incapable in the relevant sense of providing ongoing instructions. The notice of motion was therefore dismissed.

Jurisdiction
Australia
Judgment Date
15 September 2008
Procedural Posture
Common Law Division Civil Proceedings Concerning Appointment of a Tutor / Notice of Motion for Appointment of Tutor
Outcome
Notice of motion dismissed.
Legal Topics
['appointment of a Tutor' 'legal Incapacity' 'incommunicate Person' 'inherent Parens Patriae Jurisdiction']
['common Law' 'civil Procedure'] ['appointment of a Tutor' 'legal Incapacity' 'incommunicate Person' 'inherent Parens Patriae Jurisdiction']

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Procedural Posture

Common Law Division Civil Proceedings Concerning Appointment of a Tutor / Notice of Motion for Appointment of Tutor

Legal Issues

  1. 1 ['Whether the defendant was a person under legal incapacity for the purposes of appointment of a tutor under r 7.18 of the Uniform Civil Procedure Rules 2005.' "Whether the Court should exercise its inherent parens patriae jurisdiction to appoint the defendant's daughter as tutor despite the absence of legal incapacity under the Rules."]

Ratio Decidendi

The evidence did not establish that the defendant was incommunicate or unable to receive communications or express her will with respect to her property or affairs. At its highest, the evidence showed an adjustment disorder with fluctuating anxiety causing resistance to participation in the litigation, and the medical evidence indicated the anxiety was treatable and could improve with medication, counselling or support. The Court was also not persuaded that the inherent parens patriae jurisdiction should be invoked, because the defendant had not been shown to be incapable in the relevant sense of providing ongoing instructions. The notice of motion was therefore dismissed.

Court Disposition

Notice of motion dismissed.

Orders

  • ['The notice of motion is dismissed.' "The defendant to pay the plaintiff's costs." 'Liberty to apply on 3 days notice for any further directions to facilitate the progress of the substantive proceedings.']