New South Wales Supreme Court CITATION : Schwartz v Bentwood [2002] NSWSC 1020 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5315/01 HEARING DATE(S) : 28/10/02 JUDGMENT DATE : 28 October 2002 Schwartz Family Co Pty Limited - Plaintiff Judith Joan Bentwood - First Defendant Jerry Leslie Schwartz - Second Defendant Eve Veronica Schwartz as executor of the estate of the late Bela Schwartz - Third Defendant PARTIES : George Michael Kritzler as executor of the estate of the late Bela Schwartz - Fourth Defendant Eve Veronica Schwartz - Fifth Defendant Adlen Investments Pty Ltd - Sixth Defendant Liliana Di Napoli-Schwartz - Seventh Defendant Kinky Holdings Pty Limited - Eighth Defendant Sophie Bentwood - Ninth Defendant JUDGMENT OF : Barrett J Mr P Strasser - Plaintiff - Mentions Second to Sixth and Eighth Defendants COUNSEL : Ms B Carroll, Solicitor - First Defendant Mr J Burreket, Solicitor - Seventh Defendant Ms J Needham - Ninth Defendant Lang Gellert & Noonan - Plaintiff Parry Carroll - First Defendant Turner Whelan - Second Defendant SOLICITORS : Teece Hodgson & Ward - Third and Fourth Defendants Anne Einfeld - Fifth, Sixth and Eighth Defendants Broun Abrahams - Seventh Defendant Tress Cocks & Maddox - Ninth Defendant CATCHWORDS : PROCEDURE - joinder of minor as defendant - appointment of tutor - whether solicitor should be appointed on the basis that he may act without employing another solicitor LEGISLATION CITED : Supreme Court Rules CASES CITED : Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 Loorham v Loorham (1947) 65 WN (NSW) 98 DECISION : Orders made - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J MONDAY, 28 OCTOBER 2002 5315/01 – SCHWARTZ FAMILY CO PTY LIMITED v BENTWOOD & ORS JUDGMENT 1 The plaintiff applies by notice of motion filed on 25 October 2002 for two orders: first, an order joining Sophie Bentwood as the ninth defendant; and, second, an order pursuant to Part 63 rule 7 of the Supreme Court Rules appointing a tutor for Sophie Bentwood for the purpose of the proceedings. 2 The proceedings involve ascertaining entitlements in respect of a family trust. Sophie Bentwood is a grand-daughter of the person who was instrumental in the establishment of the trust in 1977. Questions are likely to arise as to whether, in the light of minutes of meetings of the directors of the plaintiff purporting to specify the class of beneficiaries, she is or is not within the class. It is therefore appropriate that she be a party to the proceedings to ensure that everyone whose interests and entitlements may be in issue is before the court. 3 As to the appointment of a tutor, the evidence shows that Sophie is aged 14. She therefore lacks legal capacity and a tutor is necessary. Two issues arise. 4 First, there is no evidence of service of the motion on Sophie Bentwood as contemplated by Part 63 rule 7(1A) of the Supreme Court Rules. I have been informed by counsel, however, that her father has been made aware of this application. Sophie's father is not a party to the proceedings but her mother is. The father has made no objection to the particular appointment proposed. Given that Sophie is aged 14, it is unlikely that service on her would be a productive course as a person of that age would not normally understand the full ramifications of proceedings of this kind or of the application for the appointment of a tutor, although she would obviously have a general appreciation of the nature of the subject matter. Particularly in light of the attitude of the father, I am prepared to make an order dispensing with service on the person referred to in Part 63 rule 7(1A) as "the disable person". 5 The other point arises from the proposal that the tutor be Mr G J Englefield, a solicitor, and that he should also act as solicitor in the interests of Sophie Bentwood as ninth defendant. Members of her family are, as I have said, already interested in the proceedings. 6 Counsel have drawn my attention to the decision of Hodgson J in Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 where his Honour considered a rule or, at least, a practice said to have been adopted by the court in former times against the appointment of a solicitor as tutor where that solicitor will himself act as solicitor for the interests concerned. Under the old rule or practice, it seems that a solicitor appointed as tutor was required to employ another solicitor in accordance with the general rule that a tutor must act through a solicitor. Hodgson J canvassed the objections to the dual role mentioned by Bonney J in Loorham v Loorham (1947) 65 WN (NSW) 98 and contrary indications in English cases and a Queensland case. His Honour proceeded to deal with Bonney J's objections one by one in a way that satisfies me that there should not today be seen to be any objection in principle to a solicitor playing the dual role, provided that the solicitor is free from conflicting duty or allegiance. In that respect, I note that Mr Englefield is not acting for any other party to the proceedings and is not otherwise involved. A consent has been produced in which Mr Englefield states that he is not related to Sophie Bentwood and has no interest in the proceedings adverse to her interests. 7 Part 62 rule 3(2) states the general rule to which I have already referred that a tutor must act by a solicitor. The court may, however, dispense with this (or any other) requirement of the rules: Part 1 rule 12. Hodgson J dispensed with the Part 62 rule 3(2) requirement in Deputy Commissioner of Taxation v P (above) and it is appropriate to do so here also. 8 All existing parties are represented before me this morning. None of them has any objection to the orders I am about to make. The orders and directions of the court are as follows: 1. Order 1 in the notice of motion joining Sophie Bentwood as ninth defendant. 2. Grant leave for filing in court of the affidavit of Graham John Englefield sworn today, Mr Englefield's certificate of no adverse interest dated today and Mr Englefield's notice of appearance on behalf of the ninth defendant. 3. Order that service of the notice of motion on Sophie Bentwood be dispensed with. 4. Order that compliance with Part 63 rule 3(2) be dispensed with. 5. Order 2 in the notice of motion appointing Mr Englefield to be the tutor of the ninth defendant. 6. Order that the costs of this application be costs in the cause. 7. Direct that the ninth defendant file and serve her defence and any cross-claim by 18 November 2002. ********** Last Modified: 10/31/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.