New South Wales Supreme Court CITATION : Valverde v Inch [2009] NSWSC 1203 HEARING DATE(S) : 9 November 2009 JUDGMENT DATE : 9 November 2009 JURISDICTION : Equity Division Protective List JUDGMENT OF : Palmer J EX TEMPORE JUDGMENT DATE : 9 November 2009 DECISION : Plaintiff to have her costs out of Defendant's estate. CATCHWORDS : PROTECTIVE JURISDICTION – COSTS – Plaintiff brings application for protection of elderly and infirm person – allegations of manipulation by third party – Defendant dies before application heard on merits – whether Plaintiff should pay costs of application to Defendant's estate or have her costs out of estate – discretion – principles. LEGISLATION CITED : NSW Trustee and Guardian Act 2009 (NSW) – s 41(1) CATEGORY : Separate question CASES CITED : Bovaird v Guardianship Tribunal & Ors [2009] NSWSC 452. PARTIES : Aurea Valverde (Plaintiff) Maude Inch (Defendant) FILE NUMBER(S) : SC P48/09 COUNSEL : S. Neagle (Sol) (Plaintiff) J. Hassett (Sol) (Defendant) SOLICITORS : Neagle Lawyers (Plaintiff) Hassett Dixon (Defendant) P48/09 Valverde v Inch JUDGMENT – Ex tempore 9 November, 2009 1 The Plaintiff filed a Summons on 14 October 2009 seeking a declaration that the Defendant is incapable of managing her affairs within the meaning of s 41(1)(a) of the NSW Trustee and Guardian Act 2009 (NSW). The Plaintiff sought an order that she be appointed manager of the estate of the Defendant, and that she or some other suitable person be appointed guardian of the Defendant. The Plaintiff filed several affidavits in support of that Summons. 2 The gravamen of the Plaintiff's allegations was that she had been the very good friend of the Defendant for many years and had cared for the Defendant and the Defendant's brother. She became concerned that the Defendant, who was elderly and infirm, was being manipulated by another person, the partner of the Defendant's brother. She says that she became concerned that the brother's partner had, in effect, taken an overbearing and controlling attitude over the Defendant who was helpless to resist, that the Defendant had been placed in a nursing home against her will by the imposition of the brother's partner, and that the brother's partner was procuring the sale of the Defendant's property at Bondi and intended to use the proceeds of sale basically for her own benefit. It was for that reason, so the Plaintiff said, that she was seeking the appointment of a financial manager under the Act. 3 The proceedings came on for directions, but before they could progress very much further the Defendant died. Accordingly, there is no point to the proceedings and they will necessarily be dismissed. However, the question at issue is costs. 4 There is actually no Defendant in the proceedings at the moment, but the solicitor for the Defendant's brother, who is now the executor of the Estate (although Probate has not been granted) appears today and says that a costs order should be made against the Plaintiff in favour of the estate. I put aside for one moment the fact that Mr Hassett has no standing to appear because he does not represent the Defendant's estate. That is a matter that will have to be dealt with by an interim order, either granting Letters of Administration to the Defendant's brother pending grant of Probate or a special purpose grant. I need not trouble with that technicality at the moment because it can be cured. I will deal with the substance of the matter. 5 The application of the Defendant's brother for costs is resisted by the Plaintiff who seeks an order that the Defendant's estate pay her costs of the proceedings. 6 The issues raised by the Plaintiff will, of course, now never be tried to conclusion. They remain simply allegations which are denied. 7 There is no evidence that the Plaintiff, in seeking the intervention of the Court to protect the Defendant, was acting either for an improper purpose or out of malice or for her own benefit. What she was seeking to do, at least on her own evidence, was to bring to the attention of the Court a situation which, at least to her perception, was extremely troubling and raised serious questions as to whether some third party, principally the Defendant's brother's partner, was taking advantage of the Defendant as an elderly, infirm and vulnerable person. 8 Those who have a genuine concern for the welfare of a vulnerable person have standing under the Guardianship Act to apply to the Tribunal for an order for the protection, by one means or another, of that person. The attitude to such an application of the Tribunal and of this Court is set out in Bovaird v Guardianship Tribunal & Ors [2009] NSWSC 452. 9 The only evidence adduced is that the Plaintiff fell within the description of a person having a genuine concern for the welfare of the Defendant and therefore had a prima facie entitlement to bring this application. Persons who have a genuine concern for a vulnerable person ought not to be discouraged from taking action to protect the interests of that person by making an application either to the Tribunal or to this Court by the fear of an adverse costs order being made against them too readily. 10 This is a case in which, if matters had proceeded as the Plaintiff no doubt hoped they would, her concerns would have been fully investigated. They may have proved justified, they may have proved unjustified, but at least she would have had the satisfaction that the matters causing her concern for the welfare of the Defendant had been properly investigated. 11 Although the matter has not proceeded to trial and has been discontinued by the death of the Defendant, the Court still has a discretion as to the awarding of costs. Where an application to the Court has been made genuinely in the interests of a person who is thought to be in need of protection and fails for reasons not to do with the merits, the costs of that application ought not to be thrown onto the Plaintiff 12 I appreciate that in this case the allegations made by the Plaintiff were strenuously denied by the Defendant's brother and his partner. Nevertheless, they did not put on any evidence or seek to cross examine the Plaintiff to show that her concern for the Defendant was not genuine. In these circumstances, as I say, it seems to me that the proper discretionary order is that the Plaintiff's costs be borne out of the deceased's estate. 13 I cannot make the order as the suit is presently constituted because there is no Defendant. The matter will therefore stand over for the bringing in of Short Minutes of Order after a proper representative of the estate has been joined as a Defendant. 14 Costs of today will follow the event, in other words be part of the costs in the cause. 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.