Supreme Court New South Wales Medium Neutral Citation: Jennings v Jennings [2019] NSWSC 662 Hearing dates: On the papers Date of orders: 05 June 2019 Decision date: 05 June 2019 Jurisdiction: Common Law Before: Davies J Decision: The plaintiff is given leave to discontinue the proceedings. Catchwords: CIVIL PROCEDURE - parties — persons under legal incapacity — tutors – where plaintiff sought to discontinue by consent – whether approval of Court was required Legislation Cited: Civil Procedure Act 2005 (NSW) s 76 Cases Cited: Nil Texts Cited: Nil Category: Procedural and other rulings Parties: Catherine Fair Hutchison Jennings (Plaintiff) Brian Jennings (First Defendant) Robert Jennings (Second Defendant) Representation: Counsel: On the papers Solicitors: Chamberlains Law Firm (Plaintiff) Unrepresented (Defendants) File Number(s): 2019/129631 Publication restriction: Nil Judgment 1. The plaintiff commenced proceedings on 26 April 2019 seeking possession of land. The land was owned by her but occupied by persons who were alleged not to have her consent to occupy. 2. The plaintiff commenced the proceedings by her tutor the NSW Trustee and Guardian. It appears to be the case that the background is that the plaintiff had been placed under the care of the NSW Trustee and Guardian, and the defendants are family members who are in occupation of the property. The statement of claim discloses that the NSW Trustee and Guardian decided to sell the property. The need to do so frequently arises in these sorts of cases so that the NSW Trustee and Guardian can pay costs associated with the ongoing care of a person in the position of the plaintiff. The decision to sell was, at the request of the defendants, reviewed by an Internal Reviewer at the request of the defendants, and the decision was upheld by the Internal Reviewer. No further appeal to NCAT has been pursued by the defendants against that decision. 3. On 3 June 2019 a Notice of Discontinuance was filed. The Notice provided as follows: 1. The Plaintiff discontinues the whole of these proceedings as she has recovered possession of the land to the exclusion of the Defendants. 2. The Plaintiff does not represent any other person. 3. Each party consents to the discontinuance. 1. The Notice disclosed further that it was a term of the discontinuance that there be no order as to costs. The Notice was executed by the solicitor for the plaintiff and the solicitor for the defendants. 2. An issue has arisen about whether the proceedings should be discontinued in the absence of the Court's approval of that discontinuance. 3. Section 76 of the Civil Procedure Act 2005 (NSW) relevantly provides: 76 Settlement of proceedings commenced by or on behalf of, or against, person under legal incapacity (1) This section applies to proceedings commenced by or on behalf of, or against, any of the following persons: (a) a person under legal incapacity, … (3) Except with the approval of the court, there may not be: (a) any compromise or settlement of any proceedings to which this section applies, or (b) any acceptance of money paid into court in any such proceedings, as regards a claim made by or on behalf of, or against, a person referred to in subsection (1). 1. In my opinion, s 76 requires the approval of the Court for the discontinuance of the proceedings. It is a reasonable inference from the terms of the Notice of Discontinuance and the process which followed the decision of the NSW Trustee and Guardian to sell the property that there has been a settlement of the proceedings. It may be inferred that an agreement was reached whereby the plaintiff was to recover possession with each party paying their own costs. Accordingly, there is a compromise or settlement of the proceedings where a person under a legal incapacity is a party to those proceedings. 2. The settlement should be approved on the basis that the plaintiff has obtained the principal relief sought by her in the statement of claim. Any liability for the plaintiff's costs up to the date of the filing of the Notice of Discontinuance must be weighed against the alternative likelihood that, if the proceedings had not settled at this point, considerably greater costs would have been incurred by the plaintiff, not all of which would be recoverable. 3. In those circumstances, the settlement is approved. The plaintiff is given leave to discontinue the proceedings. ********** 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: 05 June 2019