Turner v O’Bryan-Turner [2019] NSWSC 1340

Supreme Court New South Wales

Medium Neutral Citation: Turner v O'Bryan-Turner [2019] NSWSC 1340 Hearing dates: 21 June 2019 Date of orders: 12 September 2019 Decision date: 12 September 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Angelena May O'Bryan in her capacity as the Executrix of the Estate of Wendy Joan O'Bryan-Turner (now deceased) replace and be substituted for Wendy Joan O'Bryan Turner (now deceased) as the first defendant. 2. By 21 September 2019, the solicitor for the defendants presently on the record for Wendy Joan O'Bryan Turner file and serve an amended notice of appearance which indicates that such solicitor now acts for Angelena May O'Bryan in her capacity as the Executrix of the Estate of Wendy Joan O'Bryan-Turner (now deceased). 3. The plaintiffs file and serve the amended statement of claim by 26 September 2019. 4. Grant leave for the defendants to file and serve an amended defence by 10 October 2019 by adding the words: "69. In the exercise of its discretion, the Court should decline to grant the equitable relief sought by the Plaintiffs in their Summons and Statement of Claim", and any amendments to the defence arising out of any amendments to the statement of claim. 5. The plaintiffs are to file and serve any reply to the amended defence by 17 October 2019. 6. The cross-claim is discontinued by leave. 7. Reserve the question of costs of the cross-claim. 8. The issues pleaded in the discontinued cross-claim may be litigated by separate proceedings in accordance with the undertakings referred to in Order 13. 9. The plaintiffs are to serve any further evidence on which they rely by 8 November 2019. 10. The defendants are to file and serve any further evidence upon which they intend to rely by 13 December 2019. 11. The plaintiffs are to file and serve any evidence in reply upon which they intend to rely in reply by 31 January 2020. 12. The proceedings be listed for directions on 10 October 2019 at 9.30am before Ward CJ in Eq. Catchwords: CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors – appointment of a tutor – Pt 7 of the Uniform Civil Procedure Rules 2005 (NSW) – discussion of the function of a tutor – whether the current tutor or proposed alternative tutor respectively has an interest adverse to the incapacitated person Legislation Cited: Evidence Act 1995 (NSW), s 131(2)(g) Civil Procedure Act 2005 (NSW), ss 14, 56, 57, 58, 59, 60, 61, 62, 99 Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 2.1, 7.10, 7.14, 7.15, 7.18, 7.36 Cases Cited: Clayton v Clarke (1860) 66 ER 241 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190 In re E. (mental health patient) [1984] 1 WLR 320 Iskandar v Mahbur [2011] NSWSC 1056 Kostov v YPOL Pty Ltd [2018] NSWCA 306 Mao v AMP Superannuation Ltd [2015] NSWCA 252 Masterman-Lister v Brutton & Co (Nos 1 and 2); Masterman-Lister v Jewell [2003] 1 WLR 1511 Moore v Platel (1845) 49 ER 1192 Porter v Le [2010] NSWSC 998 R v Registrar of Melbourne County Court; Ex parte Farrington [1927] VLR 406; (1927) 33 ALR 270 Rappard v Williams [2013] NSWSC 1279 Re Burgess, Burgess v Bottomley (1883) 25 Ch D 243 Re Taylor; Taylor v Taylor [1881] WN 81; 25 SJ 525 Rhodes v Swithbank [1899] 22 WBD 577 Saravinovska v Saravinovski (No 5) [2015] NSWSC 128 South v Northern Sydney Area Health Service [2003] NSWSC 479 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Procedural and other rulings Parties: Owen John Turner bht Nicholas John Turner (First Plaintiff) Allawah Pastoral Pty Ltd (Second Plaintiff/Second Cross-Defendant) Nicholas John Turner (Third Plaintiff/First Cross-Defendant) Wendy Joan O'Bryan-Turner (First Defendant/First Cross-Claimant) David John Turner (Second Defendant) Karl John Turner (Third Defendant) Registrar-General, Land & Property Information (Fourth Defendant) Representation: Counsel: J Svehla and D Paratore (Plaintiffs) G Curtin SC with MM Pringle (First to Third Defendants/First Cross-Claimant)