Pinchen BHNF Pinchen v Insurance Australia Limited; Pinchen v Pinchen [2022] NSWSC 664

Supreme Court New South Wales

Medium Neutral Citation: Pinchen BHNF Pinchen v Insurance Australia Limited; Pinchen v Pinchen [2022] NSWSC 664 Hearing dates: 2 May 2022 Date of orders: 2 May 2022 Decision date: 02 May 2022 Jurisdiction: Common Law Before: Dhanji J Decision: In relation to the first summons, I make the following orders pursuant to s 75 of the Civil Procedure Act 2005 (NSW): (1) Judgment for the plaintiff against the defendant in the settlement sum of $800,000.00. (2) The defendant is to pay the plaintiff's costs as agreed in the sum of $100,000.00. (3) The defendant is to pay the amount of $200,000.00 for fund management costs. (4) The defendant is to deduct from the settlement sum any statutory charges including Health Insurance Commission and Department of Social Security. (5) The defendant is to deduct from the settlement sum the amount of $44,000.00 in accordance with s 83 of the Motor Accidents Compensation Act 1999 (NSW) by way of a statutory charge for monies paid in advance to the plaintiff; (6) The defendant is to deduct from the settlement sum the amount of $69,602.65 payable to the plaintiff's solicitors with respect to solicitor client costs; (7) The defendant is to pay the amount referred to in Orders 2 and 6 to the plaintiff's solicitors, RMB Lawyers; (8) The defendant is to pay the amount referred to in Order 3 to the NSW Trustee and Guardian; and (9) The defendant is to pay the balance of the net sum payable after any deductions as ordered to be paid to the NSW Trustee and Guardian. In relation to the second summons, I make the following orders: (10) Pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act 2009 (NSW), the defendant Mathew Brian Robert Pinchen be declared incapable of managing his affairs in relation to his claim for compensation arising from a motor vehicle accident which occurred on 18 June 2016; (11) Pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act, that that part of the estate of the defendant relating to the defendant's claim for compensation consisting of the balance of the settlement sum approved in proceedings Mathew Brian Robert Pinchen v Insurance Australia Limited be subject to management under the Act; (12) Pursuant to s 41(1)(b) of the NSW Trustee and Guardian Act, commit that part of the estate of the defendant relating to the defendant's claim for compensation consisting of the balance of the settlement sum approved in proceedings Mathew Brian Robert Pinchen v Insurance Australia Limited to the NSW Trustee and Guardian pursuant to s 41(1)(b) of the Act; and (13) There be no order as to costs with respect to either summons. Catchwords: CIVIL PROCEDURE – approval of settlement – by consent – whether the Court is satisfied that the settlement is beneficial to the person under legal incapacity – settlement approved CIVIL PROCEDURE – protective jurisdiction – management of settlement – whether defendant incapable of managing his affairs – incapacity found – settlement sum committed to the NSW Trustee and Guardian Legislation Cited: Civil Procedure Act 2005 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Cases Cited: CJ v AKJ (2015) 16 ASTLR 24; [2015] NSWSC 498 Category: Procedural rulings Parties: Matthew Brian Robert Pinchen BHNF Sharon Pinchen (Plaintiff in 2022/101083) Insurance Australia Limited (Defendant in 2022/101083) Sharon Pinchen (Plaintiff in 2022/101084) Mathew Brian Robert Pinchen (Defendant in 2022/101084) Representation: Counsel: J Wilson (Plaintiff in 2022/101083) Solicitors: RMB Lawyers (Plaintiff in 2022/101083) Hall & Wilcox Lawyers (Defendant in 2022/101083)