An Elderly Plaintiff by his tutor the NSW Trustee & Guardian v A Daughter and A Granddaughter [2019] NSWSC 1747

Supreme Court New South Wales

Medium Neutral Citation: An Elderly Plaintiff by his tutor the NSW Trustee & Guardian v A Daughter and A Granddaughter [2019] NSWSC 1747 Hearing dates: 5 December 2019 Date of orders: 05 December 2019 Decision date: 05 December 2019 Jurisdiction: Equity Before: Slattery J Decision: First defendant's motion dismissed. First defendant ordered to pay the plaintiff's costs of the motion. Directions for hearing made. Catchwords: PRACTICE AND PROCEDURE – the plaintiff, an elderly person, appointed the first defendant as his attorney under an enduring Power of Attorney – the plaintiff commenced proceedings for the recovery of land and money said to have been transferred by the first defendant to herself and to the second defendant, the first defendant's daughter, contrary to the terms of the Power of Attorney and in alleged breach of fiduciary duty – proceedings were fixed for hearing in February 2020 – the plaintiff dies in early November 2019 – a son applies successfully under Uniform Civil Procedure Rules 2005, r 7.10 to represent the plaintiff's estate and for the proceedings to continue to be heard on the appointed hearing date – the first defendant applies by motion to remove the son as a representative of the plaintiff's estate, to stay the proceedings until the resolution of probate proceedings, and to appoint another son of the plaintiff to represent the estate – the estate opposes all the relief sought on the motion. Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005, r 7.10 Category: Procedural and other rulings Parties: Respondent on motion/plaintiff: names not published First applicant on motion/first defendant: names not published. Second applicant on motion/second defendant: names not published Representation: Counsel: Respondent on motion: A. Hill