Supreme Court New South Wales Medium Neutral Citation: Sultana v Vella [2017] NSWSC 480 Hearing dates: On the papers; submissions received 20 and 24 April 2017 Decision date: 27 April 2017 Jurisdiction: Equity Before: Stevenson J Decision: Appointment of defendant's partner as her tutor refused Catchwords: PRACTICE AND PROCEDURE – where defendant under a disability – where defendant's partner seeks to be appointed as her tutor – where partner likely to be a witness – where partner's evidence likely to be contentious Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: Marthese Sultana (Plaintiff/Respondent) Victoria Mary Vella (Defendant/Applicant) Representation: Counsel: G A Rich (Plaintiff/Respondent) C McMeniman (Defendant/Applicant) Solicitors: Malcolm McDonald & Co (Plaintiff/Respondent) Kent McRae Pty Ltd (Defendant/Applicant) File Number(s): SC 2016/278361 Judgment 1. The defendant, Ms Vella, is the aunt of the plaintiff, Ms Sultana. 2. Ms Vella owns a property at Orchid Hills on which a duplex is erected. 3. Ms Sultana claims to have an equitable interest in that property. Ms Sultana and her family have lived in the property since 2001. 4. Ms Sultana commenced these proceedings on 16 September 2016 seeking declarations that she has an equitable interest in the property entitling her to reside with her family during Ms Vella's life and entitling her to compel transfer of the property to her absolutely on Ms Vella's death. 5. It is common ground that Ms Vella is now under a legal incapacity. 6. Ms Vella's partner, Mr Ojeda, seeks an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 7.18 that he be appointed Ms Vella's tutor for the purpose of these proceedings. 7. Mr Ojeda is willing to: 1. engage Ms Vella's current solicitors on the record to continue to act on behalf of Ms Vella in the proceedings; 2. receive advice from those solicitors and provide instructions based on his independent analysis and independent judgment of that advice; 3. make up his own mind as to what Ms Vella's best interests in the proceedings require as informed by the advice of those solicitors; and 4. pay Ms Vella's costs of the proceedings. 1. Ms Sultana opposes Mr Ojeda's appointment as Ms Vella's tutor upon the basis that Mr Ojeda has an interest adverse to that of Ms Vella in the proceedings such as to disqualify him from being Vicky's tutor (see UCPR r 7.18(5)(b)). 2. I am informed by counsel for Ms Sultana that, at the hearing of these proceedings, it will be contended that Mr Ojeda has influenced Ms Vella for his own benefit and "has a significant motivation to continue to do so should he be appointed tutor". I am also informed that Mr Ojeda "will be cross-examined in these proceedings" and that "it is contended that he has a conflict of interest in respect to preserving his own financial position". 3. I am not in a position to make any assessment about whether there is any substance in these contentions. 4. However, in my opinion, it is not appropriate to appoint Mr Ojeda as Ms Vella's tutor in circumstances where there will be controversy in the proceedings as to the role that he has taken in relation to matters which are, or may be, relevant to the underlying issues. 5. The appropriate course is that a truly independent person, perhaps an independent solicitor, be appointed to act as Ms Vella's tutor. 6. That person can best decide how these proceedings should be conducted in order to promote Ms Vella's independent interest in their just resolution. 7. I order that the notice of motion, purportedly brought on behalf the defendant and filed on 13 March 2017, be dismissed. 8. I do not propose to make any order as to the costs of that motion. 9. I list this matter for further directions before the Equity Registrar on 1 May 2017. ********** 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. Decision last updated: 27 April 2017