Angius v Salier (No 2) [2020] NSWSC 594

Supreme Court New South Wales

Medium Neutral Citation: Angius v Salier (No 2) [2020] NSWSC 594 Hearing dates: 12 May 2020 Date of orders: 12 May 2020 Decision date: 15 May 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. ORDER that Gerard John Basha ("the tutor") be appointed as the plaintiff's tutor for the further conduct of these proceedings pursuant to r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW). 2. ORDER pursuant to r 42.24 of the Uniform Civil Procedure Rules 2005 (NSW) that: a. the costs incurred by the tutor in performance of the duties of tutor be paid by the plaintiff. b. Brian Raymond Silvia (the Receiver) in his capacity as Receiver of each of Taraba Pty Ltd ACN 105 149 095 (Tararba) and Angius Investments Pty Ltd ACN 001 124 965 (AIPL) be empowered to make and is justified in making the following payments from the monies presently held by him on behalf of Tararba and AIPL respectively, such payments to be accounted in the first instance as debits to the respective loan accounts of the Plaintiff in Tararba and AIPL: (i) $10,000 by Tararba to the Plaintiff; (ii) $10,000 by AIPL to the Plaintiff; c. the Receiver be directed to make the payments to the Plaintiff referred to in paragraphs 2(b)(i) and 2(b)(ii) above directly to the tutor or as he may direct; d. in the event that the costs are not so paid by the plaintiff, that Brian Raymond Silvia the Receiver of Angius Hotel Investments Pty Ltd ACN 102 484 640 (the Second Defendant), Togumi Pty Ltd ACN 003 089 281 (the Third Defendant), J & L Angius Pty Ltd ACN 000 803 510 (the Fourth Defendant), Taraba Pty Ltd ACN 105 149 095 (the Fifth Defendant) and/or Angius Investments Pty Ltd ACN 001 124 965 (the Sixth Defendant) be at liberty to pay, on behalf of the plaintiff, the costs referred to herein from any funds held by those companies for the plaintiff. 3. ORDER that the tutor have a lien or first charge for such costs referred to herein be charged over any distribution made by any of the Second to Sixth Defendants to the Plaintiff including any dividends, repayment of loan accounts, or distributions to shareholders to which the Plaintiff is or becomes entitled. 4. NOTE that the costs referred to herein are to include: a. the legal costs and disbursements incurred at the direction of the tutor; and b. professional time charged at the usual hourly rates as are charged by the legal practice in which the tutor is engaged and on the usual terms as to payment of that practice, and disbursements, and c. any order for costs made against the plaintiff. 5. ORDER that the defendants be precluded from seeking any recourse to the tutor for the payment of any costs order made in their favour in these proceedings and that the tutor is not personally liable in respect of any such costs order. 6. DIRECT that the solicitor for the First Defendant serve on the tutor copies of these orders, a copy of the Court Book, the First to Sixth Defendants' Tender Bundle, the Defendants' submissions and objections, and the Statement of Issues agreed on by the Defendants. 7. ORDER that the costs of the Defendants and the tutor of the directions listing on 7 May 2020 and of the Notice of Motion filed 8 May 2020 be paid by the plaintiff on the ordinary basis. 8. ORDER that the costs of the First Defendant otherwise be paid out of the estate of the late Laura Angius on the indemnity basis. 9. Liberty to all parties to apply on 24 hours notice. 10. FURTHER NOTE that the receiver intends to make payments to the Seventh Defendant equivalent to those referred to in paragraph 2(b) above. Catchwords: CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors — Appointment of a tutor Legislation Cited: Civil Procedure Act 2005 (NSW), s 3 Uniform Civil Procedure Rules 2005 (NSW), rr 7.13, 7.14, 42.24 Cases Cited: Angius v Salier [2019] NSWSC 184 Angius v Salier (No 3) [2019] NSWSC 1648 Angius v Salier (No 4) [2019] NSWSC 1698 Angius v Salier [2019] NSWSC 1854 Angius v Salier [2020] NSWSC 114 Masterman‑Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162 Murray v Williams [2010] NSWSC 1243 Re WS [2017] NSWSC 745 Slaveski v State of Victoria (2009) 25 VR 160; [2009] VSC 423 Walton v Hartmann as executor of the Estate of Wanda Resler [2017] NSWSC 1432 Category: Procedural and other rulings Parties: Giovanni (known as John) Angius (Plaintiff) Gordon Albert Salier (First Defendant) Angius Hotel Investments Pty Ltd (Second Defendant) Togumi Pty Ltd (Third Defendant) J & L Angius Pty Ltd (Fourth Defendant) Tararba Pty Ltd (Fifth Defendant) Angius Investments Pty Ltd (Sixth Defendant) Robert Angius (Seventh Defendant) Representation: Counsel: M Wilmott SC with CP Birtles (First Defendant) J Baird (Second to Sixth Defendants) R Macaulay (Plaintiff's former solicitor, appearing as amicus curiae) Solicitors: V Culkoff (Seventh Defendant) Teece Hodgson & Ward (First Defendant) Carneys Lawyers (Second to Sixth Defendants) PV Lawyers (Seventh Defendant) GJ Basha (Proposed Tutor) File Number(s): 2016/00142494 Publication restriction: Nil