HIS HONOUR: Salo Sperling, the first defendant, is the father of Maurice Sperling, the plaintiff, and Carla Rosen, the second defendant, in these proceedings. Without intending any disrespect to any of the parties I will call them all by their first names in this judgment, as they are all members of the one immediate family. Maurice, Salo and Carla are the joint owners of a commercial and residential property in Bondi ("the Bondi property"). Maurice has brought proceedings under Conveyancing Act 1919 (NSW) ("Conveyancing Act"), s 66G for their respective interests in that property to be realised by sale through the appointment of trustees for sale.
The proceedings were commenced by summons on 13 January 2015 which had its first return date on 3 February 2015. The matter has come before me today in the duty list because of the need to appoint a tutor to represent Salo's interests. The parties rightly brought the matter to the duty list. There is a degree of urgency in everyone's interests in progressing the proceedings and in order to do that, to appoint a tutor.
The need for the appointment of a tutor for Salo is undoubted. The evidence before me is that Salo turned 100 years of age on 6 January 2015 and is currently a full-time high care residential patient in a nursing home. He is mentally and physically frail and has hearing and mobility difficulties. The medical evidence from a consultant geriatrician and other treating doctors confirms (without the need to detail the evidence in this judgment) that Salo's general cognitive function is such that it is appropriate to appoint a tutor. This medical evidence is supported by evidence from Maurice of his difficulties in communicating with Salo about general matters other than Salo's immediate personal needs.
I conclude on the evidence that the first defendant, Salo, is a person under legal incapacity as defined under the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). It is necessary in those circumstances for a tutor to be appointed, so the proceedings can continue. UCPR, r 7.14 provides as follows:
(1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor.
(2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor.
The effect of UCPR, r 7.14 is that these proceedings cannot continue against Salo until a tutor is appointed. For a number of reasons there is urgency not only for the appointment of a tutor but for the ultimate resolution of these proceedings. I am told from the bar table that the Bondi property is an important asset, the realisation of which will release funds for Salo's current care and sustenance.
At least the plaintiff, Maurice, and possibly Carla as well (although instructions from her are not yet clear) desire to sell the property to realise the funds, at least in part to serve the best interests of Salo in the short to medium term. But the parties have encountered an obstacle in the appointment of a tutor that they have asked the Court to overcome. The parties themselves have already taken considerable steps in that direction.
The obstacle is that on the evidence Maurice is not able to find a person to act in the capacity of a tutor for Salo, particularly given the short notice that these proceedings require. A tutor is required to get the necessary instructions from Salo that will be required to identify whatever the contested issues are in the proceedings, or to resolve those issues within the next week or so.
Maurice's evidence is that he has approached a number of possible tutors. He has contacted friends, his own acquaintances, other family members, who are close to Salo, and doctors who have been involved in treating Salo. He has considered other persons as possible tutors as well. He does not think that any of these people could take on the role of tutor. He has gone to the lengths of asking a solicitor and family friend who may be induced to take the role. But that person has declined.
Carla is represented here today by Ms Bianchi. No evidence is filed on her behalf to indicate that any other person is available to fill the gap in finding a suitable candidate as tutor that Maurice describes.
So what is to be done? A tutor is needed so the proceedings can continue. But none is presently available. This problem, though rare, is not unprecedented. Maurice draws the court's attention to my decision in Iskandar v Mahbur & Ors [2011] NSWSC 1056 ("Iskandar") which considers a triple problem similar to the present one: (1) finding a tutor; (2) paying the tutor; and, (3) whether or not the tutor appointed can be a solicitor.
These problems present themselves again in this case. A tutor cannot be found. When one is found it will be necessary to make some kind of order for the payment of the tutor, in circumstances where the application is not made at the behest of the party who will be paying the tutor but another party in the proceedings. Thirdly, there is the issue of whether that tutor can also act as a solicitor in the proceedings.
[2]
(1) Finding a Tutor
The parties' own diligent efforts have already solved the first of these problems. The parties adopted the procedure that was used in Iskandar. When the current motion on which the plaintiff moves dated 24 February 2015 last before came the Court, orders were made similar to those in Iskandar, requesting the President of the Law Society of New South Wales to nominate a suitable solicitor to act as tutor.
As a result of those orders on 13 March 2015 Mr John Eades, the President of the Law Society of New South Wales, nominated a solicitor, a Mr Patrick See of Lloyd & Lloyd Solicitors, to act as a tutor in conformity with the procedure of those orders. Mr See appears before the Court today and has provided to the Court his standard costs disclosure agreement, which sets out, as the law requires, a costs disclosure and an attached costs agreement. It sets out fully the hourly rates chargeable for all services that his firm might provide to Salo in these proceedings. He also has provided to the Court a consent to act as tutor in accordance with UCPR, r 7.16.
The two remaining problems are paying the tutor and whether the tutor can also be the solicitor for Salo.
[3]
(2) Paying the Tutor
As to the question of payment, Hodgson J suggested in Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 that where one party seeks the appointment of a tutor for another, the appointment should ordinarily occur on the basis that the applicant would indemnify the tutor for his or her expenses and costs in acting as the tutor for the other party. I noted in Iskandar (at [25]) that although it may at first seem surprising is to have a tutor for one party paid for by the opposing party, the tutor will have to declare his or her independence from the party who is paying his fees by making the "no conflict" declaration in accordance with UCPR, r 7.18(5)(b).
Exactly the same problem presents itself here as in Iskandar. There is no doubt that Salo owns a substantial interest in the Bondi property. Were it to be sold the tutor's fees will be payable out of funds available to Salo. But I will leave open the question of who should ultimately bear Salo's fees as a result of this appointment. That issue will be left for determination at the conclusion of the proceedings. But in the short to medium term, it will be necessary for the tutor to act.
[4]
(3) Tutor and Solicitor?
That raises the third question. As UCPR, r 7.14(2) shows, unless the Court otherwise orders, a tutor of a person under legal incapacity may not carry on proceedings except by a solicitor. This rule contemplates that in the ordinary course the tutor and the solicitor will be different persons. But as Mr Lovas for the plaintiff points out, the rule contains within it the implicit idea that it can be dispensed with and that the same person could act as the tutor and the solicitor for a party. This is exactly what Hodgson J ordered in Deputy Commissioner of Taxation v P, where the Deputy Commissioner had brought proceedings in the Local Court against two infants in respect of whom the infants' parents were not available to act as tutors. The amount of money in issue was small. His Honour was prepared to allow a solicitor to act not only as tutor but also as solicitor. His Honour did so after considering options somewhat similar to those that have been canvassed in these proceedings.
His Honour eliminated the possibility (at 204B) that a court official might be made a tutor, as was asked for in that case. He declined this partly because of the significant responsibilities and duties associated with being a tutor and because of the lack of resources within the court system to supply such a service in the 1980s.
His Honour then covered (at 204B) the history of the practice in Equity in relation to this issue:
"It would appear that the usual practice in the past has been to appoint a solicitor of this Court who has no interest in the proceedings adverse to that of the infant defendant. Rule 62 of the Consolidated Equity Rules of 1902 expressly contemplated this: see also Lawrence v Moyes (1900) 16 WN (NSW) 229 and Sanguinetti v Weaver (1910) 27 WN (NSW) 142."
Hodgson J then considered certain authority that had been advanced for the proposition that a solicitor should not be appointed to act as a tutor. That was a decision of Bonney J sitting in the former Matrimonial Causes Division of this court in Loorham v Loorham (1947) 65 WN (NSW) 98 ("Loorham") where Bonney J said:
"'I am surprised to find that it is not unusual in matrimonial causes, where a solicitor is appointed as guardian of a party, for the same solicitor to act as solicitor in the cause. Such a practice is absolutely wrong.
I have discussed the matter with Chief Judge in Equity, who tells me that it is never permitted in the Equity Jurisdiction: that agrees with my own recollection going back forty years.
There are four good reasons why a solicitor should not be appointed to the dual positions of guardian and solicitor for a minor: (1) a guardian cannot appear in court in person, and a solicitor cannot retain himself, (2) the guardian should be in a position to change his solicitor, (3) he should be in a position to question his solicitor's bill of costs, and (4) he should not be in a position where his interest might possibly conflict with his duty.
It makes no difference that the petition may probably be undefended, because that cannot be properly ascertained until the guardian has been appointed and has considered the matter, on legal advice if he thinks it necessary."
But Hodgson J noted that this statement was contrary to what had been stated in WA Parker, Parker's Practice in Equity (2nd ed, 1949, Law Book Co of Australia) at p 359, to the effect that when appointed as the tutor in accordance with the accepted practice, that the solicitor:
"does the legal work necessary to protect the infant's interests and is allowed for the same as if he had been retained on behalf of the infant.'"
Similar appointments have been made of solicitor tutors in other jurisdictions: see Ex parte Shearer [1949] QWN 41 per Mansfield SPJ. Hodgson J also noted that when the Official Solicitor in England is appointed as a guardian ad litem, the Official Solicitor acts as the infant's solicitor as well as guardian: see Eady v Elsdon [1901] 2 KB 460 and Re PC (An Infant) [1961] Ch 312.
His Honour was dealing with rules similar to those in the present case, which were then embodied in Part 63 of the Supreme Court Rules 1970 (NSW) ("Supreme Court Rules"). His Honour found the reasons in Loorham for not appointing a tutor-solicitor to be unpersuasive for the following reasons:
"Having regard to these cases, and to the expense involved in having two solicitors acting for the defendant minor, I should consider whether the four reasons referred to in Loorham are conclusive on this point. I must say that I do not find them convincing. In so far as a breach of Pt 63, r 3, would be involved where a tutor appointed to an infant defendant himself acts as the infant's solicitor, I think that compliance with that rule could be dispensed with under Pt 1, r 12. It is open to the parents or custodians of the infant to initiate proceedings to change the guardian and thereby the solicitor acting on behalf of the infant in the case, and also to raise questions concerning any bills of costs. I do not think the plaintiff should be put in the position of having to meet two sets of solicitors' costs simply because the parents or custodians of the infant take no steps to have the infant represented in the proceedings by a guardian. Finally, if the solicitor is competent and disinterested, I do not think there is any significant possibility of a conflict of duty and interest. Accordingly, I would be prepared myself to order the appointment of a solicitor tutor and, so far as necessary, to dispense with compliance with Pt 63, r 3(2).
In this case, the plaintiff has made efforts to locate a suitable person, and apparently is having some difficulty in doing so. It may be that when a plaintiff is in this position, the Law Society of New South Wales would be able to give assistance.
In the result his Honour dispensed with Supreme Court Rules, Pt 63, r 3, under Part 1, rule 12, the equivalent of UCPR, r 7.14(2). But now the dispensing provision is embedded within the rule itself.
It is appropriate on this occasion in my view to make a similar order to that of Hodgson J. I do so for the following considerations. Firstly, it seems likely, given the nature of these proceedings, that they may be resolved quickly. There are only a limited number of answers to a claim under Conveyancing Act, s 66G and whether any one of those answers is going to be fielded to this summons should be known within approximately a week. I am going to adjourn this matter within the duty list and require the parties to return next week to indicate the defendants' attitude to the summons.
Secondly, there is a solicitor, Mr See, ready to act and to interview Salo and communicate with him to take instructions, when after due inquiry no one else seems to be available. It is theoretically possible to spend more time to find another tutor by other processes. On the other hand the need to realise these funds in the interests of Salo in the short term is also a compelling factor which causes me to conclude that Mr See should be appointed as tutor now.
Thirdly, as Hodgson J said in Deputy Commissioner of Taxation v P, there are inherent conflicts of duty and interest in appointing a tutor solicitor, of which the Court must always be mindful. But the Court can do, what it is often called upon to do in relation to trustees who are expressly permitted to charge fees in their capacity as trustees: to scrutinise and approve or disapprove those fees before they are ultimately paid. The Court's supervisory jurisdiction over the tutors it appoints will be sufficient protection from any conflict of interest between a tutor and a party.
[5]
Conclusions and Orders
Accordingly, the Court makes the following orders and directions:
Pursuant to UCPR, r 7.18(1)(a) I appoint Mr Patrick See as the tutor for the first defendant Salo Sperling in these proceedings.
Pursuant to UCPR, r 7.14(2) I order that the first defendant may carry on these proceedings through his tutor other than by a solicitor.
Reserve for further consideration the question of whether the first defendant the plaintiff or the second defendant will bear the first defendants costs of these proceedings.
Reserve for the Court's approval Mr See's legal fees for acting as the first defendant's tutor in these proceedings.
Adjourn the proceedings before the duty judge list for further hearing at 10am on Tuesday, 24 March 2015.
[6]
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Decision last updated: 20 March 2015