Mary Perera by her tutor Marisa Perera v Alpha Westmead Private Hospital trading as Westmead Private Hospital [2022] NSWSC 571

Supreme Court New South Wales

Medium Neutral Citation: Mary Perera by her tutor Marisa Perera v Alpha Westmead Private Hospital trading as Westmead Private Hospital [2022] NSWSC 571 Hearing dates: 12 May 2022 Date of orders: 27 May 2022 Decision date: 27 May 2022 Jurisdiction: Common Law Before: Johnson J Decision: In accordance with paragraph 2 of the Notice of Motion filed 9 May 2022, the Court declares that the Plaintiff is not a person under legal incapacity within the meaning of ss.3 and 76 Civil Procedure Act 2005 and Rule 7.14 Uniform Civil Procedure Rules 2005. To the extent that it is necessary, an order is made under Rule 7.18 Uniform Civil Procedure Rules 2005 removing the tutor from the proceedings. By consent, the following orders are made: a. Judgment for the Plaintiff. b. The Defendant is to pay the Plaintiff's costs of the proceedings up to 13 April 2022 and the costs of the application for removal of the tutor as agreed or assessed. c. The Defendant is to pay its own costs of the proceedings. d. The parties have liberty to apply on three days' notice if any further order is considered appropriate, having regard to the decision reached by the Court in this judgment. Catchwords: CIVIL PROCEDURE – proceedings instituted on behalf of the plaintiff by a tutor on the basis that she was a person under legal incapacity – proceedings settled – whether approval of settlement required under s 76 Civil Procedure Act 2005 – whether plaintiff remains a person under legal incapacity – application for removal of tutor Rule 7.18 Uniform Civil Procedure Rules 2005 – consideration of legal incapacity under Division 4 Civil Procedure Act 2005 and Rules 7.13-7.16 Uniform Civil Procedure Rules – consideration of whether applicant incapable of managing own affairs – plaintiff no longer a person under legal incapacity so as to require a tutor – order under Rule 7.18 removing tutor from the proceedings – approval of settlement under s 76 not required Legislation Cited: Civil Procedure Act 2005 NSW Trustee and Guardian Act 2009 Uniform Civil Procedure Rules 2005 Cases Cited: Budini v Sunnyfield (No. 3) [2021] FCA 1540 Farr v State of Queensland [2009] NSWSC 906 Gerard Malouf and Partners Pty Ltd v NSW Trustee and Guardian and Anor [2017] NSWSC 899 Mao v AMP Superannuation Limited [2017] NSWSC 987 Murray v Williams [2010] NSWSC 1243 Nurrish v Schwander [2016] NSWSC 91 Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 Smilevska v Smilevska [2015] NSWSC 1794 Xiang bht Cao v Tong [2021] NSWSC 44 Texts Cited: --- Category: Principal judgment Parties: Mary Perera by her tutor Marisa Perera (Plaintiff) Alpha Westmead Private Hospital trading as Westmead Private Hospital (Defendant) Representation: Counsel: Mr JM Morris SC; Ms R Bianchi (Plaintiff) Mr SD Kalfas SC; Ms KE Burke (Defendant)