HSBC Bank Australia Limited v Chang [2007] NSWSC 1127

New South Wales Supreme Court

CITATION : HSBC Bank Australia Limited v Chang [2007] NSWSC 1127

HEARING DATE(S) : 10/10/07

JUDGMENT DATE : 10 October 2007

JUDGMENT OF : Bell J at 1

EX TEMPORE JUDGMENT DATE : 10 October 2007

DECISION : Motion dismissed; Defendant to pay plaintiff's costs of the motion

CATCHWORDS : Appointment of tutor - person under legal incapacity - parens patriae jurisdiction

LEGISLATION CITED : Civil Procedure Act (2005) Uniform Civil Procedure Rules 2005

CASES CITED : Re P [2006] NSWSC 1082 Re SK (2005) All ER 421

PARTIES : HSBC Bank Australia Limited (ACN 006 434 162) (Plaintiff/Respondent) Ching Chih Chang (Defendant/Applicant)

FILE NUMBER(S) : SC 12254/04

COUNSEL : D R Pritchard SC (Plaintiff/Respondent) S Bell (Defendant/Applicant)

SOLICITORS : Blake Dawson Waldron (Plaintiff/Respondent) Lloyd Truman Sadiq (Defendant/Applicant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

WEDNESDAY 10 OCTOBER 2007

12254/04 - HSBC BANK v CHING CHIH CHANG

JUDGMENT 1 HER HONOUR: Mr Bell, of counsel, moves for the orders claimed in the notice of motion filed on 13th September 2007, relevantly that Scheng-Ju Candice Chen be appointed as tutor for the defendant. He reads the affidavit of Ms Chen affirmed on 12 September 2007 and tenders two medical certificates relating to the defendant. 2 Mr Pritchard SC, who appears on the plaintiff's behalf, opposes the making of the order. He read the affidavit of his instructing solicitor, Ms Agius, which was sworn on 28 September 2007 and tendered a bundle of correspondence, which is exhibited to the affidavit, and a defence to a further amended statement of claim dated 9 September 2007 purporting to have been verified by Ms Chen as tutor of the defendant. 3 Turning to the evidence led in support of the motion Ms Chen is the daughter of the defendant. Ms Chen's native tongue is Mandarin, she speaks and reads English, although her English is not perfect. The defendant neither speaks nor reads English. The defendant left Australia and travelled to Taiwan in mid March 2007. At the time of her departure Ms Chen was aware that her mother was suffering from a kidney problem. Ms Chen travelled to Taiwan in late March 2007 to see her mother and stayed with her in her apartment in Thaichung. She visited her mother again in Taiwan in early September. 4 During the time that Ms Chen was in Taiwan she accompanied her mother to appointments at hospitals and with a heart specialist. Ms Chen observed her mother taking numerous medications daily. Her mother stays in bed, or indoors, most of the time and appears to be weak, dizzy and easily upset. She has observed her mother crying a lot and says that her mother has trouble sleeping. 5 Ms Chen states that she has attempted to discuss "this case" with her mother but that each time she does so her mother breaks down in tears and appears to be very distressed. Ms Chen says that she has not been able to have any meaningful discussion about the case with her mother since her mother's return to Taiwan in March 2007. 6 The medical evidence includes a certificate under the hand of the superintendent of the China Medical University Hospital, which records that the defendant suffers chronic renal failure stage V, "very close to end stage renal failure and dialysis stage". The defendant attended the hospital on a number of occasions as set out in the certificate. She also is diagnosed as anaemic, for which condition she requires medication. The author of the certificate states, "currently her medical condition is not suitable for an overseas flight". 7 Also in evidence is the certificate prepared by Dr Zu's Internal Medicine Hospital Clinic. This records that the defendant has been diagnosed with suspected angina pectoris. The certificate records medical advice in these terms: "Strong suggestion: avoid all stress and simulation otherwise patient may experience angina pectoris or myocardial infarction." 8 The proceedings are brought by the plaintiff, bank, as mortgagee against the defendant claiming an order for possession of certain land known as 34 Tindale Rd Artarmon together with a money judgment in the sum of $634,761.24 with interest and damages pursuant to s 68 of the Fair Trading Act. 9 The application is brought pursuant to the provisions of Pt 7 r 7.18 of the Uniform Civil Procedure Rules 2005 and, in the alternative, in the Court's inherent parens patriae jurisdiction. 10 The proceedings have a lengthy history, which is set out in Ms Agius's affidavit. It is sufficient to note that in recent months the issue of the failure of the defendant to comply with interlocutory orders has been the subject of correspondence between the parties. 11 Mr Bell draws to attention that a notice of motion filed by the plaintiff, is returnable on 16 October and seeks orders striking out the defence and cross-claim. He has pointed to the evidence of the defendant's serious health problems and laid particular emphasis on the medical advice concerning the avoidance of stress and on Ms Chen's observations of the defendant's distress when she has endeavoured to discuss the case with her. 12 Rule 7.18 of the UCPR provides: