RM v CM

1. [1]

   These reasons explain my decision to make orders appointing the NSW Trustee and Guardian (NSWTG) as a protected estate manager in relation to the second defendant, and to appoint the NSWTG as his tutor in the proceedings.

The circumstances and procedural history of this matter

1. [2]

   The proceedings concern the estate of the late mother of the plaintiff and second defendant, who died on 13 September 2022. She was survived by two adult sons, being the parties just mentioned.

2. [3]

   The deceased made a will on 4 November 1992 together with a codicil on 30 August 1996. The 1992 will has not yet been located, and the 1996 codicil provides for a sum of $50,000 to each grandchild of the deceased. The second defendant published his intention to apply for probate on 22 June 2023. The plaintiff filed a caveat against grant on 11 July 2023.

3. [4]

   The plaintiff brought these proceedings by way of statement of claim against the second defendant and his wife, who is the first defendant. The necessity to join the first defendant owes to the fact that she is the half owner of a house in Corlette, New South Wales (the Corlette property) which, if the plaintiff succeeds, will be estate property. The plaintiff filed an amended statement of claim on 17 November 2023 and a further amended statement of claim on 1 August 2024. The amended claim seeks the following relief:

4. [5]

   The proceedings were listed for a three-day final hearing before me, commencing 4 June 2025. Orders listing the matter for hearing were made on 5 February 2025.

5. [6]

   However, prior to the hearing, difficulties emerged concerning the second defendant’s capacity to conduct the proceedings. He had been unrepresented since 28 June 2024 when his former solicitors filed a notice of ceasing to act. The perceived difficulty, however, was not just as to his lack of representation – although that was no doubt a concern – but his capacity to conduct the proceedings at all. It was this concern that led the plaintiff to file a notice of motion on 20 March 2025 seeking the following:

6. [7]

   The plaintiff filed an amended notice of motion on 11 April 2025.

7. [8]

   On 14 May 2025, before the plaintiff’s motion was determined, Mark Treisman of Chandlers International Lawyers filed a notice of ceasing to act for the first defendant. The first defendant has since been self-represented, although her attitude at directions hearings has been to defer in all respects to the position adopted by her husband, who purports to represent her.

8. [9]

   I dismissed the plaintiff’s amended notice of motion. I did however recognise that the plaintiff had been justified in bringing the application because there was, at least, a reasonable basis for concern about the second defendant’s capacity. I was not however at that point prepared to force the second defendant to submit to medical examination at the insistence of his brother, with whom he is locked in litigation.

9. [10]

   However, the situation deteriorated. On 28 May 2025, after the Court book was delivered to the Court in anticipation of the 4 June hearing, the second defendant sent an email to the Court stating:

10. [11]

    On 28 May 2025, the second defendant sent a further email to the Court stating:

11. [12]

    On 28 May 2025, I listed the matter for 30 May 2025 to hear the second defendant’s application to vacate the hearing dates.

12. [13]

    On 30 May 2025, the second defendant sent an email to the Court stating:

13. [14]

    On 30 May 2025, I vacated the hearing listed for three days commencing 4 June 2025 and referred the matter to Lindsay J, sitting as the Protective List judge. My referral to the Protective List judge reflected my own perception of the second defendant’s capacity to conduct the proceedings, which was that he was wholly focused, to the point of obsession, on matters about himself and his brother that were wholly irrelevant to the litigation whilst being completely unable to focus on matters that were relevant. He was emotionally extremely fragile and upset. He appeared to have very little control over his moods when it came to dealing with matters being conducted in the court room.

14. [15]

    On 2 and 5 June 2025, the matter came before Lindsay J for directions. On 5 June 2025, Christian Vindin and Alex Radojevic of counsel, who were instructed by Warren Krass of Provenance Partners, sought leave to appear in the proceedings in the interests of the second defendant as amicus curiae.

15. [16]

    On 26 June 2025, Lindsay J appointed the NSWTG as receiver and manager in the matter for the sole purpose of obtaining a capacity assessment. The plaintiff was asked to advance $5,000 to the NSWTG for the purpose of organising a medical assessment for the second defendant. The plaintiff agreed to advance the monies. The Court ordered that the monies be paid back to the plaintiff upon the grant being obtained in the estate and administration of the estate.

16. [17]

    On or about 7 July 2025, the plaintiff advanced $5,000 to the NSWTG for the purpose of organising a medical assessment for the second defendant.

17. [18]

    Medical assessments for the second defendant were scheduled for 19 August and 21 October 2025 with a consultant neuropsychologist for the purpose of assessing his capacity. Both appointments were cancelled by that consultant on short notice, for reasons that are not relevant here.

18. [19]

    After the cancellation of the 21 October 2025 appointment, the NSWTG scheduled a medical assessment for the second defendant for 23 October 2025 with Dr Amanda Olley.

19. [20]

    On 21 and 22 October 2025, the second defendant sent emails to the NSWTG indicating that he was unavailable to attend the appointment with Dr Olley due to the demands of his diplomatic duties. The second defendant advised the NSWTG that he would be able to consider appointments from 28 October 2025. In one of his emails the second defendant stated:

20. [21]

    In response to the emails referred to at paragraph [20] above, the NSWTG made enquiries with Dr Olley regarding her next available dates for a medical assessment. On 7 November 2025, the NSWTG sent an email to the second defendant and the plaintiff’s solicitors advising that Dr Olley was available on 24 November and 8 December 2025. The email stated:

21. [22]

    On 14 November 2025, the NSWTG sent the second defendant a follow up email requesting a response to the email referred to at paragraph [21] above. The second defendant replied to the email on the same day, stating:

22. [23]

    On 17 November 2025, the second defendant sent an email to Lindsay J’s chambers attaching submissions and proposed short minutes of order seeking that the proceedings be adjourned and listed for directions on or after 9 February 2026.

23. [24]

    On 17 November 2025, Lindsay J ordered the second defendant to attend a medical assessment with Dr Olley on 25 November 2025.

24. [25]

    On 20 November 2025, the second defendant sent an email to the NSWTG and the plaintiff’s solicitors attaching an unsealed notice of motion seeking that the plaintiff’s statement of claim be struck out.

25. [26]

    On 21 November 2025, the NSWTG sent an email to the second defendant and the plaintiff’s solicitors stating:

26. [27]

    On 21 November 2025, the NSWTG booked the second defendant in for an appointment with Dr Olley on 22 January 2026. On 11 December 2025, the NSWTG informed the Court that the appointment had been rescheduled. On 12 December 2025, Lindsay J made orders noting that the appointment had been rescheduled.

27. [28]

    On 19 and 21 January 2026, the NSWTG sent emails to the second defendant reminding him of the appointment with Dr Olley on 22 January 2026. The second defendant did not attend the appointment.

28. [29]

    On 22 January 2026, the second defendant sent an email to the NSWTG indicating that he contacted the consultant referred to at paragraph [18] above on 21 January 2026, and was advised that ‘no appointment had ever been booked and that she was on holidays’. The NSWTG responded to the second defendant’s email stating that all correspondence in relation to the appointment on 22 January 2026 confirmed that the appointment was to occur with Dr Olley.

29. [30]

    On 9 February 2026, the NSWTG advised the plaintiff’s solicitors that they had made a confidential report to the Court recording the unsuccessful attempts to arrange an independent medical examination of the second defendant’s capacity. The report was provided to the parties on 10 February 2026.

30. [31]

    On 9 February 2026, the second defendant sent an email to the Court attaching a letter regarding his medical circumstances. The letter referred to a thyroid surgery which was originally scheduled for 5 February 2026. The second defendant indicated that he had postponed the surgery as he ‘felt compelled to prioritise the Court proceedings’. The letter further stated:

31. [32]

    On 9 February 2026, the second defendant sent an email to the Court attaching a letter, medical records and draft short minutes of order.

32. [33]

    The matter was listed for directions before Lindsay J at 9:00AM on 10 February 2026. The first and second defendants appeared by AVL at 9:59AM. Ms Janine Foo appeared for the plaintiff. Although the NSWTG is not a party to the proceedings, Ms Jaimi-Lee Gardiner appeared for the NSWTG. Ms Foo raised the following matters with the Court:

33. [34]

    At the directions hearing on 10 February 2026, Lindsay J raised the possibility of the second defendant appointing a tutor. His Honour explained the difference between a tutor and a lawyer and suggested that the first defendant could be the second defendant’s tutor. The second defendant indicated that he had some other people in mind but did not name them.

34. [35]

    At the conclusion of that directions hearing, Lindsay J made orders and notations which included the following:

35. [36]

    After the directions hearing on 10 February 2026, the second defendant sent an email to the Court attaching a letter and proposed short minutes of order.

36. [37]

    The matter came before me for directions at 9:30AM on 11 February 2026. The second defendant appeared in person at 9:50AM. The first defendant did not appear.

37. [38]

    Thus, the parties and the Court have arrived at the present juncture. As the history of the matter shows, the Court has three times been sufficiently concerned about the capacity of the second defendant that it has made quite drastic orders in the management of the matter. The first was my order vacating the 4 June 2025 hearing and referring the matter to the Protective List judge; the second was the order of Lindsay J on 26 June making the limited appointment of the NSWTG; the third was his Honour’s order on 17 November requiring the second defendant to submit to a professional consultation which is not an order commonly made without a party’s consent.

38. [39]

    I am now faced with a difficulty. I have before me a litigant who appears to me to be delusional and incapable of making rational decisions about the litigation. He insists that he is capable of conducting the proceedings but, despite promising to do so on numerous occasions and even despite being ordered to do so, has refused to submit to professional assessment.

39. [40]

    The material now before the Court only confirms the impression I gained about the second defendant’s capacity on 30 May 2025, when the matter was referred to the Protective List judge. So too has the second defendant’s behaviour in Court. He is consumed by what he perceives to be a loss of professional credibility as a result of these proceedings because, he claims, he has been unable to attend to several of his international and diplomatic responsibilities, including obligations connected to ambassadorial roles, advisory duties and international appointments. However, his international diplomatic roles appear to me to be delusions.

40. [41]

    For example, he has tendered a document which suggests he was invited to a book launch at St James House in London to celebrate a book about 75 years of the National Health Service. The event was to be on 9 October 2024. He says that ‘the denial of a two week adjournment in September 2024’ – a time long before these proceedings were even set down for hearing – meant that he could not attend this event, which he calls ‘King Charles III Book launch at Westminster Abbey’. He says this meant that he was prevented from meeting ‘other high-level delegates, Lords, and prominent parties at the event which could have furthered [his] international credibility as a visionary thought leader of Humanitarian Service delivery’.

41. [42]

    The second defendant is also apparently unable to look after his own health. He suffers from a thyroid goitre which is causing him distress and discomfort. He has repeatedly claimed that he must have emergency surgery and that these proceedings have somehow prevented this from occurring. He tendered a redacted letter from his local GP dated 16 January 2026 which reveals that he or she referred him to a specialist over a year ago and that he had been placed on the public waiting list for surgery. However, the letter says that the second defendant ‘subsequently decided not to proceed’. The letter said that he is suffering from ‘worsening compressive symptoms’. The second defendant has spoken in Court about these worsening symptoms many times but still has not attended to surgery. His belief that these proceedings have in some way frustrated his attempts to undergo surgery is unfounded.

42. [43]

    It is also important to recall what occurred shortly prior to the 4 June hearing, which was that the second defendant became overwhelmed and distraught and declared himself to be incapable of conducting the proceedings. His own declaration of incapacity was a significant matter that informed my decision to vacate the hearing. I think it is likely that the second defendant would find himself in exactly the same position in advance of any new hearing.

43. [44]

    The second defendant has provided me with a comprehensive bundle of material, including affidavits and other documents, which he says show his capacity to conduct the proceedings and which also show the ‘procedural unfairness’ visited upon him in and by reason of these proceedings. I have read that material and it shows no procedural unfairness at all. It shows only that the second defendant feels that it would be deeply unfair for his brother to benefit from their mother’s estate. It otherwise only confirms my impression that the second defendant lacks the capacity to conduct these proceedings in a rational way.

44. [45]

    The second defendant submitted with force that I should not determine the question of capacity until I had dealt with his application to strike the proceedings out, which was filed on 9 March 2026. I decline to approach the matter in that way. It would not be appropriate to deal with the strike-out application without first dealing with the question of the second defendant’s capacity, which is a concern that must override all others.

45. [46]

    There is no person willing to act as tutor. The first defendant is the second defendant’s wife but she is not willing to act as his tutor.

Applicable principles

1. [47]

   In A v A [2015] NSWSC 1778, Lindsay J said that in the absence of a person able and willing to volunteer as a tutor, the only practical way forward is by way of a two-stage process, namely the appointment of the NSWTG as a financial manager and tutor. His Honour’s explanation of the problem and its potential solution at paragraphs [15] to [33] of A v A provides a helpful guide to my own approach to the issue here.

2. [48]

   Section 41 of the NSW Trustee and Guardian Act 2009 (NSW) relevantly provides:

3. [49]

   The exercise of the power under s 41 must be guided by the general principles identified in s 39. That section provides:

4. [50]

   Provisions relating to the appointment of a tutor are contained in the CPA and the UCPR. The key provisions of the CPA are as follows:

5. [51]

   The key provisions of the UCPR are as follows:

6. [52]

   As Lindsay J said in A v A at [39]:

7. [53]

   The question of what it means for someone to be unable to manage their affairs was explained by Lindsay J in CJ v AKJ [2015] NSWSC 498 at [27] to [34].

8. [54]

   In relation to the role of medical evidence in the Court’s assessment of whether a person is unable to manage their affairs, I note what Lindsay J said in A v A at [79(d)], referring to H v H [2015] NSWSC 837 at [36]:

Should the NSWTG be appointed as protected estate manager and tutor?

1. [55]

   In my view, it is appropriate to appoint the NSWTG as protected estate manager and tutor. I am satisfied that the second defendant is unable to manage his affairs and that the NSWTG should be appointed as protected estate manager. I am also satisfied that it is appropriate to appoint the NSWTG as the second defendant’s tutor in these proceedings. In each case, I have taken into account the matters set out in paragraphs [40] to [44] above.

2. [56]

   The NSWTG has been represented and present in Court on the last two occasions on which this issue was canvassed. However, it has not at this point consented to the appointment and, as is the usual practice in matters of this kind, should be given an opportunity to consider the position.

3. [57]

   It is appropriate also to explain my reasons for making a certain procedural direction on 6 March, when this matter was argued. On that occasion, I made the following order:

4. [58]

   The emails referred to in that order seek clarification as to the existence and details of a mortgage which appears to have been granted over the Corlette property. The first defendant is the owner as to one half of that property, the other half being part of the deceased’s estate. The Corlette property is the first and second defendants’ home. However, ownership of the property is very much in issue in these proceedings. It appears that the first defendant granted a mortgage over her interest in the Corlette property to her former solicitors. The plaintiff has quite reasonably been attempting to ask her about that mortgage in correspondence. To date, she has refused to respond, hence my order.

5. [59]

   Since that order was made, the first defendant has corresponded with the Court to say that she considers that she should not be required to answer Ms Foo’s emails until her husband’s strike-out motion is determined. I disagree. As explained to the first defendant in Court on 6 March, she must comply with the Court’s directions and orders or risk being held in contempt.

Orders

1. [60]

   The orders will be as follows:

   1. (1)

      Declare, pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act 2009 (NSW), that the second defendant is incapable of managing his affairs.

   2. (2)

      Order, pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act, and subject to order 3 of these orders, that the estate of the second defendant be subject to management under that Act.

   3. (3)

      Order, pursuant to s 41(1)(b) of the NSW Trustee and Guardian Act, that management of the estate of the second defendant be committed to the NSW Trustee and Guardian (NSWTG).

   4. (4)

      Order that the NSWTG be appointed as tutor for the second defendant in accordance with r 7.18(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW).

   5. (5)

      Order that the NSWTG file their consent to act as tutor for the second defendant by 20 March 2026.

   6. (6)

      Order that the costs of the NSWTG in these proceedings be paid out of the estate of the second defendant on an indemnity basis.

   7. (7)

      Reserve to the parties liberty to apply for consequential orders in the working out of these orders.

   8. (8)

      Stand the matter over for further directions on 10 April 2026.

2. [61]

   I anticipate that the matter should be ready to receive a new hearing date when the matter returns for directions on 10 April 2026 or as soon thereafter as the NSWTG has had a proper opportunity to consider its position.