Ethel Martin Aboud (by her Tutor NSW Trustee & Guardian) v Ian Samuel Aboud [2013] NSWSC 788

Supreme Court New South Wales

Medium Neutral Citation: Ethel Martin Aboud (by her Tutor NSW Trustee & Guardian) v Ian Samuel Aboud [2013] NSWSC 788 Hearing dates: 31 May 2013 Decision date: 31 May 2013 Jurisdiction: Equity Division Before: Rein J Decision: The settlement approved for the purposes of s 76 of the Civil Procedure Act 2005 (NSW). Catchwords: PRACTICE AND PROCEDURE - application for approval of settlement of proceedings commenced on behalf of a person under legal incapacity pursuant to s 76 of Civil Procedure Act 2005 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Category: Principal judgment Parties: Ethel Matin Aboud (by her tutor NSW Trustee & Guardian) (Plaintiff) Ian Samuel Aboud (Defendant) Representation: Solicitors: Zucker Legal Defendant in person File Number(s): 2011/241741

EX TEMPORE Judgment 1REIN J: The plaintiff is the NSW Trustee & Guardian and trustee and guardian of Mrs Ethel Aboud ("the trustee"). The proceedings were commenced by the plaintiff on behalf of Mrs Aboud against Mr Ian Aboud, the defendant. Mr Ian Aboud is Mrs Aboud's son. Mrs Aboud is presently 86 years of age, suffers from dementia and lives in a nursing home, and the trustee has been appointed as her trustee and guardian following a hearing before the Guardianship Tribunal 2By the proceedings the trustee seeks to recover a significant amount of monies paid out of Mrs Aboud's account to, or at the direction of, Mr Aboud including amounts in relation to costs incurred by Mr Aboud in proceedings he brought in Mrs Aboud's name against his sister, in which proceedings he was unsuccessful. Some of the money which the trustee seeks by the proceedings has in fact been repaid to Mrs Aboud's account by several payments including two payments by Mr Aboud's ex-wife. Some of the money which was taken out of Mrs Aboud's account was paid to Mr Aboud's son. 3The trustee has decided, for reasons which are adequately explained in the detailed affidavit of Ms Rachael Storemont, who is a legal officer with the NSW Trustee & Guardian, that the proceedings are best resolved. Not only are there identified difficulties of proof but there is a real doubt about the amount for which Mr Aboud is liable and a risk that he might claim reimbursement of the monies he has had to pay his sister in connection with the proceedings mentioned earlier on the basis that, although unsuccessful in the proceedings against his sister, he was acting under a power of attorney in the interests of his mother. 4There is also a very real question as to whether or not Mr Aboud will be able to meet any judgment against him in the event that the plaintiff in the proceedings is successful. 5An important matter is the fact that the settlement deed expressly precludes the defendant from seeking any reimbursement for the costs which he has paid out to his sister as a result of the order made against him in the District Court proceedings between Mrs Aboud brought by him and his sister. That provision is a benefit to Mrs Aboud, as is to a lesser degree, Mr Aboud's agreement to pay $6000 costs to the trustee. 6Ms Storemont has quite properly annexed correspondence which establishes that the defendant's sister, Ms Rosemary Aboud, strongly opposes the settlement and for reasons expressed by herself and her solicitor. The NSW Trustee & Guardian recognises that he is required by virtue of s 72 of the NSW Trustee and Guardian Act 2009 (NSW) to "determine whether the action is of such a nature that the person or a relative or relatives of the person should be consulted about the action". 7An action in this context is "any action in respect of the estate of a managed person". 8The section also provides that if the New South Wales Trustee determines that consultation should take place he or she must give notice to the relatives and then must consider the submissions of relatives made in response to the notice within the time specified in the notice. 9The trustee has, as I have indicated, received responses from Ms Rosemary Aboud but Mr David Aboud, who is a brother of Rosemary and Ian and to whom the trustee also wrote has not responded. Of course, Mr Ian Aboud supports the action of the trustee in reaching the settlement since he is the other party to the settlement deed. It is stated in Ms Storemont's affidavit that the trustee has "given careful consideration to Ms Rosemary Aboud's views but has decided to proceed with the proposed settlement". 10In addition to the matters to which I have referred the solicitor acting for the plaintiff, Mr Christopher Zucker has informed me that he recommends the settlement. 11In all the circumstances, I am satisfied that the settlement is an appropriate one for the trustee to enter into, allowing for the fact that the matter is of some complexity and that various considerations had to be brought to bear in making the decision as to whether or not to settle these proceedings. 12I therefore approve the settlement for the purpose of s 76 of the Civil Procedure Act 2005 (NSW).