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[2021] NSWSC 179

Davis v Western Sydney Local Health District

(1) I note that this matter has settled subject to approval, in accordance with the terms of a consent judgment which for identification I will initial and place with the papers. (2) I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005. (3) I make orders in accordance with paragraphs 1 to 7 inclusive of that consent judgment. (4) I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the judgment sum referred to in paragraph 1 of the consent judgment, less any authorised deductions for which the consent judgment specifically or by necessary implication provides, be paid into Court for payment out thereafter to the NSW Trustee & Guardian or as the Court may upon application make pursuant to s 77(3) of the Act otherwise direct. (5) Grant liberty to apply.

Catchwords

SETTLEMENT – approval of settlement – plaintiff under legal disability – where plaintiff a joint proprietor of the family home with her husband subject to a substantial mortgage – where tutor seeks order for payment from settlement of monies sufficient to discharge the mortgage – where husband providing care for plaintiff in substitution for commercial assistance contemplated by the settlement amount - whether Court has power to make such an order – where decision properly a matter for trustee

Legislation cited

  • Civil Procedure Act 2005 (NSW)

Judgment

  1. [1]

    HIS HONOUR: By notice of motion filed on 16 December 2020, Rebecca Davis sought orders for the approval of a settlement of the proceedings pursuant to s 76 of the Civil Procedure Act 2005. An order is also sought that from the settlement sum, an amount of $306,419 “be deducted and paid” to the plaintiff’s husband “for the purpose of discharging the mortgage over the family home”. Ms Davis also asks for an order that “the proceedings” be transferred to the “Protective Division of the Equity Division for the appointment of a private trustee and manager”. That application arises in the following circumstances.

  2. [2]

    Ms Davis sues by her tutor, Matthew Davis, who is Ms Davis’ son. Ms Davis was born on or about March 1971 and sustained an hypoxic brain injury at Blacktown Hospital during a routine operation on 14 April 2016. Ms Davis has been left with profound difficulties, including cognitive impairment, difficulties with memory and concentration, fatigue, emotional lability and associated difficulties with daily living.

  3. [3]

    Ms Davis and her husband are the joint proprietors of a property in Glenorie, which is subject to a mortgage securing repayment of the debt earlier described. In an affidavit, read in support of the application for approval of the settlement, Matthew Davis deposes to the following matters:

  4. [4]

    The following submissions were made in support of the application:

  5. [5]

    As I indicated during the course of the approval proceedings, I do not accept I have power to make an order of the kind that is sought with respect to the mortgage debt or the other amounts incurred by members of Ms Davis’ family in generously providing care and support for her since she became incapacitated. As the submissions made on behalf of Ms Davis correctly observe, my function in dealing with an application for approval of a settlement is protective in nature and calls for a determination of whether the settlement is beneficial to the interests of Ms Davis, as the person under a legal incapacity. It does not extend to usurping the role of the trustee or to making decisions about the investment, expenditure or distribution of the fund. There are fundamental, but also practical, reasons for this. At a purely practical level, in considering whether or not to approve a compromise, the Court is not possessed of the kind of detailed information about Ms Davis’ circumstances, or those of her family members who might be expected to have an interest in supporting and assisting her, that would be required before particular decisions concerning administration of the fund could be made.

  6. [6]

    Nor is it necessary to transfer the proceedings to another Division of this Court. Section 77 of the Civil Procedure Act 2005 is in these relevant terms:

  7. [7]

    Ms Davis has foreshadowed that she wishes to apply for the appointment of a corporate trustee. Section 77(3) provides for such an application. Any decisions that are to be made better to provide for Ms Davis’ needs and ongoing care and support, including, if appropriate, the utilisation and compensation of members of her family, are matters that the trustee can attend to in due course. It seems to me to be appropriate in these circumstances to retain the proceedings in this Division in anticipation of any application that is to be made.

  8. [8]

    I will make the following orders:

    1. (1)

      I note that this matter has settled subject to approval, in accordance with the terms of a consent judgment which for identification I will initial and place with the papers.

    2. (2)

      I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005.

    3. (3)

      I make orders in accordance with paragraphs 1 to 7 inclusive of that consent judgment.

    4. (4)

      I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the judgment sum referred to in paragraph 1 of the consent judgment, less any authorised deductions for which the consent judgment specifically or by necessary implication provides, be paid into Court for payment out thereafter to the NSW Trustee & Guardian or as the Court may upon application make pursuant to s 77(3) of the Act otherwise direct.

    5. (5)

      Grant liberty to apply.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.