Coffey v Coffey (No. 2) [2015] NSWSC 338

Coffey v Coffey (No. 2) [2015] NSWSC 338

The enduring guardianship instrument did not itself prove legal incapacity because it was conditional on Leslie Coffey becoming partially or totally incapable of managing his person. The medical referral and affidavit evidence did not establish that he was incapable of managing his own affairs or lacked capacity to conduct the proceedings, and no expert evidence of current cognitive capacity or the effect of bipolar II disorder was provided. Because the Court was not satisfied that Leslie Coffey was a person under legal incapacity, Leanne Thurling's appointment as tutor could not stand and she was removed.

Jurisdiction
Australia
Judgment Date
30 March 2015
Procedural Posture
Civil Procedure Application to Remove Plaintiff's Tutor / Notice of Motion Heard on 19 March 2015; Consequential Orders
Outcome
Yvette Latu's motion was successful and Leanne Thurling was removed as tutor of Leslie Coffey.
Legal Topics
['appointment and Removal of Tutor' 'person Under Legal Incapacity' 'enduring Guardianship' 'capacity to Conduct Proceedings']
['civil Procedure' 'guardianship'] ['appointment and Removal of Tutor' 'person Under Legal Incapacity' 'enduring Guardianship' 'capacity to Conduct Proceedings']

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Procedural Posture

Civil Procedure Application to Remove Plaintiff's Tutor / Notice of Motion Heard on 19 March 2015; Consequential Orders

Legal Issues

  1. 1 ['Whether Leanne Thurling should be removed as tutor of Leslie Coffey.' 'Whether Leslie Coffey was a person under legal incapacity for the purposes of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the instrument appointing Leanne Thurling as enduring guardian established that Leslie Coffey was under guardianship or under legal incapacity.' "Whether Leanne Thurling had any interest in the proceedings adverse to Leslie Coffey's interests."]

Ratio Decidendi

The enduring guardianship instrument did not itself prove legal incapacity because it was conditional on Leslie Coffey becoming partially or totally incapable of managing his person. The medical referral and affidavit evidence did not establish that he was incapable of managing his own affairs or lacked capacity to conduct the proceedings, and no expert evidence of current cognitive capacity or the effect of bipolar II disorder was provided. Because the Court was not satisfied that Leslie Coffey was a person under legal incapacity, Leanne Thurling's appointment as tutor could not stand and she was removed.

Court Disposition

Yvette Latu's motion was successful and Leanne Thurling was removed as tutor of Leslie Coffey.

Orders

  • ['Leanne Thurling be removed as the tutor of Leslie Coffey.' 'The costs of this application be reserved.']