Maurice Sperling v Salo Sperling & Anor [2015] NSWSC 286

Maurice Sperling v Salo Sperling & Anor [2015] NSWSC 286

Given the urgent need to continue proceedings and no suitable family or friend available as tutor, the Court has power to appoint an independent solicitor nominated by the Law Society as tutor. The applicant must indemnify the tutor for expenses pending final orders. The Court's supervisory jurisdiction provides sufficient protection against conflict of interest in the solicitor-tutor arrangement.

Parties
Plaintiff: Maurice Sperling; First Defendant: Salo Sperling; Second Defendant: Carla Rosen
Jurisdiction
Australia
Judgment Date
17 March 2015
Procedural Posture
Application for Appointment of Tutor / Interlocutory Appointment of Tutor Pending Resolution of Substantive Proceedings
Outcome
Orders made appointing Mr Patrick See as tutor for Salo Sperling; issues of costs and tutor's legal fees reserved; further directions hearing scheduled.
Legal Topics
Appointment of Tutor, Legal Incapacity, Conflict of Interest in Representation, Trustee Appointment Under S 66 G Conveyancing Act
Civil Procedure Equity Appointment of Tutor Legal Incapacity Conflict of Interest in Representation Trustee Appointment Under S 66 G Conveyancing Act

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Parties

Maurice Sperling

Plaintiff

Salo Sperling

First Defendant

Carla Rosen

Second Defendant

Procedural Posture

Application for Appointment of Tutor / Interlocutory Appointment of Tutor Pending Resolution of Substantive Proceedings

Legal Issues

  1. 1 Whether the Court should appoint a solicitor as tutor for a defendant under legal incapacity when no friend or family is available
  2. 2 Who should bear the costs of the solicitor-tutor
  3. 3 Whether the tutor may also be the solicitor for the person under legal incapacity

Ratio Decidendi

Given the urgent need to continue proceedings and no suitable family or friend available as tutor, the Court has power to appoint an independent solicitor nominated by the Law Society as tutor. The applicant must indemnify the tutor for expenses pending final orders. The Court's supervisory jurisdiction provides sufficient protection against conflict of interest in the solicitor-tutor arrangement.

Court Disposition

Orders made appointing Mr Patrick See as tutor for Salo Sperling; issues of costs and tutor's legal fees reserved; further directions hearing scheduled.

Orders

  • Mr Patrick See appointed tutor for the first defendant Salo Sperling pursuant to UCPR, r 7.18(1)(a).
  • First defendant may carry on proceedings through his tutor other than by a solicitor (UCPR, r 7.14(2)).