Re S [2011] NSWSC 536

Supreme Court New South Wales

Medium Neutral Citation: Re S [2011] NSWSC 536 Hearing dates: Thursday, 19 May 2011 Decision date: 19 May 2011 Before: White J Decision: Refer to paras [29], [31] and [32] Catchwords: PRACTICE AND PROCEDURE - notice of motion - plaintiff under legal incapacity - proceedings concluded by consent orders without appointment of tutor - absence of tutor irregularity waived by defendants - subsequent application for appointment of tutor - where plaintiff's solicitor seeking to recover costs incurred in the proceedings - recoverability of costs unaffected by whether tutor now appointed - where plaintiff seeking to enforce consent orders made in the proceedings - orders sought to be enforced not expressed as orders of the court and are agreement between the parties - enforcement of agreement would be by way of claim for specific performance - appointment of tutor not necessary or appropriate for enforcement of consent orders - notice of motion dismissed with no order as to costs Legislation Cited: Civil Procedure Act 2005 NSW Trustee and Guardian Act 2009 Guardianship Act 1987 Legal Profession Act 2004 Cases Cited: Ex parte Brocklebank (1877) 6 Ch D 358 Yakmor v Hamdoush (No. 2) [2009] NSWCA 284; (2009) 76 NSWLR 148 Category: Procedural and other rulings Parties: Deleted by reason of orders for anonymity of proceedings Representation: D D Knoll AM (Plaintiff) M V Dawson (2nd & 3rd Defendants) Ms C Phang (NSW Trustee) Konstan Lawyers (Plaintiff) Cara Marasco (2nd & 3rd Defendants) File Number(s): 2010/423600