LG v TG [2005] NSWSC 594

New South Wales Supreme Court

CITATION : LG v TG [2005] NSWSC 594

HEARING DATE(S) : 20 June 2005

JUDGMENT DATE : 20 June 2005

JURISDICTION : Probate

JUDGMENT OF : Campbell J

DECISION : Order striking out proceedings not revoked

CATCHWORDS : MENTAL HEALTH - legal proceedings by person whose estate has Protective Commissioner as receiver and manager - whether such a person has capacity to bring proceedings other than by the manager of his estate

Conveyancing and Law of Property Act 1898 LEGISLATION CITED : Protected Estates Act 1983

CASES CITED : Re DEF and the Protected Estates Act [2005] NSWSC 534

LG - Plaintiff PARTIES : TG - Defendant

FILE NUMBER(S) : SC 101449/05

In person - Plaintiff SOLICITORS : Cutlers The Law Firm - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

CAMPBELL J

20 JUNE 2005

101449/05 LG v TG JUDGMENT – Ex Tempore (Revised 21 June 2005) 1 HIS HONOUR: This matter is one in which the plaintiff makes various claims concerning the estate of his late mother. On 6 June 2005 it was before the Young CJ in Eq. The plaintiff did not appear that day. There was evidence that the plaintiff was a person in relation to whom an order was made on 5 December 1997 in proceedings in the Protective List, committing the management of his estate to the Protective Commissioner. In consequence the Chief Judge made the following order on 6 June 2005: "Order that proceedings be struck out with costs. However this order is not to be entered until 21/6/05 and is to be notified to Ms Katherine Frost, Solicitor of Fousham & Geddes. Liberty to the plaintiff to rescind this order on application on motion to Judge hearing Probate List returnable no later than 20/6/05." 2 The plaintiff filed a Notice of Motion in the present proceedings on 17 June 2005, in which he sought special directions and further orders from the Court. It is that Notice of Motion which is before me today. The plaintiff has appeared today before the Court in person. 3 The plaintiff has submitted that the order appointing the Protective Commissioner to manage his estate is one which can be revoked on 7 days notice. The terms of the order made on 5 December 1997 were: "1. the Protective Commissioner be appointed as Receiver and Manager of the estate of the defendant until further order of the Court. 2. the Receiver and Manager have all the powers and authorities given to the Protective Commissioner as if he were appointed under the Protected Estates Act 1983. The court stands the proceedings over generally with liberty to either party to restore them to the list on giving to the Court and the other party 7 days' notice. Costs of the plaintiff up to and including today to be paid out of the estate of the defendant, that order not to be enforced until the conclusion of the present District Court proceedings in which the defendant is seeking damages for personal injuries."