Re S [2011] NSWSC 536

Re S [2011] NSWSC 536

The notice of motion was dismissed because appointing a tutor after the proceedings had been dismissed was not necessary or appropriate. The prior absence of a tutor was an irregularity waived by the defendants and no party sought to set aside the consent orders. Appointment would not affect recoverability or reimbursement of legal costs, and paragraphs 6 and 7 of the short minutes were agreements rather than court orders, so any enforcement would require separate proceedings for specific performance rather than appointment of a tutor in the concluded proceedings.

Jurisdiction
Australia
Judgment Date
19 May 2011
Procedural Posture
Notice of Motion for Appointment of a Tutor to a Plaintiff Under Legal Incapacity / Application Heard After the Proceedings Had Been Resolved by Consent Orders and the Summons Dismissed
Outcome
Notice of motion filed on 12 May 2011 dismissed; no order as to costs.
Legal Topics
['appointment of Tutor' 'legal Incapacity' 'waiver of Procedural Irregularity' 'consent Orders' 'specific Performance' "recovery of Legal Costs From Protected Person's Estate"]
['practice and Procedure' 'civil Procedure' 'guardianship and Protected Persons' 'costs'] ['appointment of Tutor' 'legal Incapacity' 'waiver of Procedural Irregularity' 'consent Orders' 'specific Performance' "recovery of Legal Costs From Protected Person's Estate"]

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Procedural Posture

Notice of Motion for Appointment of a Tutor to a Plaintiff Under Legal Incapacity / Application Heard After the Proceedings Had Been Resolved by Consent Orders and the Summons Dismissed

Legal Issues

  1. 1 ['Whether a tutor should be appointed to the plaintiff after the proceedings had already been resolved and dismissed by consent orders.' 'Whether the absence of a tutor when the proceedings were commenced and resolved rendered the proceedings or orders a nullity.' 'Whether appointment of a tutor was necessary or relevant to recovery or reimbursement of legal costs incurred for the protected person.' 'Whether paragraphs 6 and 7 of the short minutes of order of 23 December 2010 were enforceable as court orders or only as agreements between the parties.']

Ratio Decidendi

The notice of motion was dismissed because appointing a tutor after the proceedings had been dismissed was not necessary or appropriate. The prior absence of a tutor was an irregularity waived by the defendants and no party sought to set aside the consent orders. Appointment would not affect recoverability or reimbursement of legal costs, and paragraphs 6 and 7 of the short minutes were agreements rather than court orders, so any enforcement would require separate proceedings for specific performance rather than appointment of a tutor in the concluded proceedings.

Court Disposition

Notice of motion filed on 12 May 2011 dismissed; no order as to costs.

Orders

  • ['The notice of motion filed on 12 May 2011 is dismissed, including the orders sought in paragraph 3 of the notice of motion.' 'No order as to costs.' 'Exhibits may be returned after 28 days.' 'The proceedings are hereafter to be known as Re S.']