Nicholls v Nelson [2006] NSWSC 813

New South Wales Supreme Court

CITATION : Nicholls v Nelson [2006] NSWSC 813

HEARING DATE(S) : 9 August 2006 JURISDICTION : Equity

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 08/09/2006

DECISION : Declare that first defendant grandmother holds property upon trust for child. Order that grandmother be removed as trustee. Upon undertaking of insurer to pay fees, order that the Public Trustee be appointed trustee. Order that property vest in Public Trustee. No order as to costs.

CATCHWORDS : TRUSTS – Trustees – Removal and Appointment – where property acquired for benefit of child in name of his grandmother with funds advanced by insurer pending personal injuries claim to be brought by child against mother – where child's parents divorced – where residence order in favour of father made by Family Court – where child residing with father and siblings in trust property - alternative proposals for appointment of father and Public Trustee – need for affidavit of fitness - relevant considerations.

LEGISLATION CITED : Supreme Court Rules 1970 (NSW) Pt 70 rr 8, 9

Jonathan Nicholls (plaintiff) PARTIES : Vincenta Nelson (first defendant) Allianz Australia Insurance Limited (second defendant)

FILE NUMBER(S) : SC 6062/05

COUNSEL : M W Hadley (plaintiff) A P Capelin (defendants)

SOLICITORS : P D Banister (plaintiff) Dibbs Abbott Stillman (defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Wednesday 9 August 2006

6062/05 Jonathan Nicholls v Vincenta Nelson JUDGMENT (ex tempore) 1 HIS HONOUR: The defendant Vincenta Nelson is the registered proprietor of the land comprised in folio identifier 153/253099 situate at and known as 9 Gossell Grove, Carlingford, in the State of New South Wales, which was purchased in her name with funds provided by the second defendant, Allianz Australia Insurance Limited, as an advance on a claim to be made by her as next friend for her grandson, Dylan Gregory Nelson, arising out of a motor vehicle accident in which he was seriously injured when a passenger in a vehicle driven by his mother, Mrs Nelson's daughter, Chantal Nelson, of which Allianz was the CTP insurer. The plaintiff Jonathan Nicholls is Dylan's father. He claims a declaration that Mrs Nelson holds the Carlingford property upon trust for Dylan, and an order removing Mrs Nelson as trustee and appointing himself as trustee in her place. Mrs Nelson consents to the declaration and to being removed as trustee, but proposes that the Public Trustee be appointed in her place. Allianz also seeks the appointment of the Public Trustee. 2 Mr Nicholls and Dylan's mother, Chantal, had separated before the motor vehicle accident, and were divorced in 1998. Initially, Dylan and their two other children resided with Chantal and had contact with Mr Nicholls. 3 Following the motor vehicle accident, which occurred on 6 July 2001, the Carlingford property was purchased in or about July 2002. It is clear from the correspondence which passed between Allianz and Dylan's solicitors at that time that it was contemplated that the trust would endure at least until Dylan is eighteen years of age. Although Dylan suffered serious injuries, including a traumatic brain injury, in the accident, his cognitive skills seems generally to be average or better than average, although some concerns have been expressed about some aspects of them, I particular concentration and maintaining attention. Nonetheless it is likely, though on the limited material before me neither possible nor necessary to say with certainty, that in due course Dylan will be capable of managing his own affairs; at least, that is a sufficiently significant possibility that I should take into account on this application that Dylan may well have the capacity to manage his own affairs and to form his own judgments.