Elga Steinecke (bht Robert John Gardos) v Peter Martin Wayne, Diana Lindner, Beate Stricker, Gerhard Levy; Re Estate of Henry Herbert Stricker & Karl Heinz Lindner [2011] NSWSC 428

Supreme Court New South Wales

Medium Neutral Citation: Elga Steinecke (bht Robert John Gardos) v Peter Martin Wayne, Diana Lindner, Beate Stricker, Gerhard Levy; Re Estate of Henry Herbert Stricker & Karl Heinz Lindner [2011] NSWSC 428 Hearing dates: 28, 29 March 2011 Decision date: 29 March 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Trustees appointed for sale of real property held in co-ownership. Catchwords: PRACTICE AND PROCEDURE - plaintiff under legal incapacity - general rule encapsulated by UCPR 7.10 that persons under legal incapacity cannot bring proceedings except by tutor - not appropriate to dispense with rule to ensure litigation carried on by responsible person - whether Powers of Attorney Act allows attorneys under power to commence proceedings in name of principal - proceedings must be brought in name of principal not attorney - tutor appointed. PRACTICE AND PROCEDURE - estate of deceased person has interest in proceedings - estate not represented - whether proceedings should be continued in absence of representative under UCPR 7.10(2) - no interest or claim by other person - potential beneficiaries submitted or taken to submit to relief sought - effect of order to convert real property to cash - s66G orders made almost as of right - plaintiff's interest in property is 75% - held: proceedings may continue. REAL PROPERTY - application for appointment of trustees for sale of property - orders made almost as of right - practice of court to require verification of consent of trustees - practice of court to require affidavit of fitness of trustees - requirements satisfied - s66G orders made. Legislation Cited: (NSW) Civil Procedure Act 2005, s 14 (NSW) Conveyancing Act 1919, s. 66G (NSW) Uniform Civil Procedure Rules 2005, r 7.10, r 7.13, r 7.14 Cases Cited: Campbell v Pye (1954) 54 SRNSW 308 Crossley v City of Glasgow Life Assurance Co (1876) 4 Ch D 421 Curtis v Caledonian Fire & Life Insurance Co (1881) 19 Ch D 534 McNamara v Bodkin (1960) 1 FLR 351 Myers v Nominal Defendant [1966] 1 NSWR 659 Rudeforth v Crawford [1926] VLR 303 Spellson v George and others (1987) 11 NSWLR 300 Urquhart and Another v Lanham and Others 2002 11 BPR 20,765 Texts Cited: A G Nevill and A W Ashe, Equity Proceedings With Precedents (New South Wales), (1981) Butterworths P Taylor, E Elms, G Bellew and M Meek, Ritchie's Uniform Civil Procedure New South Wales, (2005) Lexis Nexis Butterworths Category: Principal judgment Parties: Elga Steinecke (plaintiff) Peter Martin Wayne, Beate Stricker and Gerhard Levy (first defendants) Diana Lindner (second defendant) Representation: Counsel: Mr M A Friedgut (plaintiff) Solicitors: Addisons Lawyers (plaintiff) Peter M Wayne & Associates (defendants) File Number(s): 2011/77474