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[2026] NSWSC 200
General information, not legal advice.
Supreme Court of NSW
2026-03-13
Hmelnitsky J
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Medium Neutral Citation: RM v CM [2026] NSWSC 200
Hearing dates: 6 March 2026
Date of orders: 13 March 2026
Decision date: 13 March 2026
Jurisdiction: Equity - Protective List
Before: Hmelnitsky J
Decision: (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) 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) 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) 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) Order that the NSWTG file their consent to act as tutor for the second defendant by 20 March 2026.
(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) Reserve to the parties liberty to apply for consequential orders in the working out of these orders.
(8) Stand the matter over for further directions on 10 April 2026.
Catchwords: PROTECTIVE JURISDICTION — Litigant in person — Person incapable of managing affairs — Where second defendant has made repeated assurances as to intention to obtain legal representation — Where second defendant has repeatedly failed to attend Court-ordered independent medical assessment of capacity — Whether NSW Trustee and Guardian should be appointed as protected estate manager and tutor
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3 and 80
NSW Trustee and Guardian Act 2009 (NSW), ss 39 and 41
Uniform Civil Procedure Rules 2005 (NSW), rr 7.13, 7.14, 7.15 and 7.18
Cases Cited: A v A [2015] NSWSC 1778
CJ v AKJ [2015] NSWSC 498
H v H [2015] NSWSC 837
Texts Cited: Nil
Category: Procedural rulings
Parties: RM (Plaintiff)
CM (First Defendant)
DM (Second Defendant)
Representation: Counsel:
R Bianchi (Plaintiff)
Solicitors:
Glass Goodwin (Plaintiff)
File Number(s): 2023/319670
Publication restriction: Nil
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.
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.
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:
(a) an order that the letters of administration of the deceased’s will dated 4 November 1992 and codicil dated 30 August 1996 be granted to the plaintiff; (b) in the alternative, an order that letters of administration of the deceased’s estate on the basis of intestacy be granted to the plaintiff; (c) a declaration that the transfer of the Corlette property to the deceased and the first defendant is void; (d) further or in the alternative, an order that the transfer of the Corlette property be set aside; (e) further or in the alternative, a declaration that the first defendant holds the legal and beneficial interest in her share of the Corlette property on resulting trust for the deceased’s estate; (f) further or in the alternative, an order that the first defendant holds her share of the Corlette property on constructive trust for the deceased’s estate; (g) an order that the second defendant, as attorney under a Power of Attorney instrument dated 1 March 2016, breached his fiduciary duties to the deceased; (h) further or in the alternative, a declaration that the second defendant, as executor under the will dated 1 March 2016, breached his fiduciary duties to the deceased’s estate and to the plaintiff as a beneficiary; (i) further or in the alternative, a declaration, order and directions facilitating the tracing of assets distributed from the deceased’s assets from 1 March 2016 for the benefit of the first and second defendants; and (j) further or in the alternative, a declaration that the first and second defendants hold the assets so traced on trust for the estate and an order that such funds should be adjusted or paid back into the estate.
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.
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:
(a) an order that the second defendant be medically assessed by a professional assessor to determine whether he is a person under a legal incapacity within the meaning of s 3 of the Civil Procedure Act 2005 (NSW) (CPA) and r 7.13 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR); (b) an order that a tutor be appointed for the second defendant if he is found to be under a legal incapacity pursuant to s 80 of the CPA and r 7.18 of the UCPR; and (c) an order that the costs of the motion be reserved.
The plaintiff filed an amended notice of motion on 11 April 2025.
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.
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.
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:
“My health is crumbling under the immense workload I undertake to help people in need and the environment. …
I request His Honour to reschedule the trial until I can focus on the case and appoint and inform a legal team of my defence in representing.”
“I declare that I am overwhelmed by the undertaking of humanitarian funding requirements …
Again, I request His Honour to Justly provide me with the time to finalise all these transactions over the next few weeks as to show His Honour evidence of what I have stated as my team and I are undertaking to help people in need globally. …
I respectfully request that Justice Hmelnitsky allow me to complete the current undertakings over the next few weeks, during which after I can appoint and instruct my legal team with a clear head.”
On 28 May 2025, I listed the matter for 30 May 2025 to hear the second defendant’s application to vacate the hearing dates.
On 30 May 2025, the second defendant sent an email to the Court stating:
“The distress of injustice has me pleading with His Honour to allow me time to recover. To have time to think clearly again. To be able to articulate providing information to a defence legal team to represent me. As, due to the circumstances that have transpired, I am unable to represent myself.”
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.
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.
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.
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.
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.
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.
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:
“While I undertake diplomatic roles at the highest level, it is I whose intellectual capacity is brought into question with the suggestion that the NSW Trustee & Guardian should be appointed to manage my affairs?!?”
“… Given the delays in this matter, it is our view that the report should be completed before the end of the Court term.
Accordingly, [second defendant], please advise whether either of those dates suit you for attendance upon Dr Olley so that we can book it in as soon as possible.”
“… due to my diplomatic duties and international commitments, I will be unavailable in the New Year, and for this matter to be promptly finalised through the court system. With commitments through January, I look forward to the opportunity to complete the court orders any time after the first week of February 2026.”
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.
On 17 November 2025, Lindsay J ordered the second defendant to attend a medical assessment with Dr Olley on 25 November 2025.
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.
On 21 November 2025, the NSWTG sent an email to the second defendant and the plaintiff’s solicitors stating:
“We have been contacted by Dr Olley who has advised that she only tentatively held the appointment for [the second defendant] and had provided the appointment date to another last Thursday. She has advised that her next dates are 22 or 29 January 2025. She has indicated that the report will be ready by the second week of February 2026.”
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.
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.
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.
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.
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:
“I provide this information not to seek sympathy, but to explain the genuine difficulty I face in managing both urgent medical needs and complex legal proceedings without representation …
Acknowledge my medical circumstances and the genuine difficulty they create for my self-representation.”
On 9 February 2026, the second defendant sent an email to the Court attaching a letter, medical records and draft short minutes of order.
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:
(a) concerns regarding delays in the matter and the second defendant’s failure to attend the medical appointment with Dr Olley; (b) the $5,000 advanced by the plaintiff to the NSWTG to arrange an independent medical assessment of the second defendant had been exhausted; (c) the second defendant’s repeated representations, since June 2024, that he would obtain legal representation; and (d) the second defendant’s continued assertions, since late 2024, that he had money coming from overseas which he intended to use to pay for legal representation.
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.
At the conclusion of that directions hearing, Lindsay J made orders and notations which included the following:
“7. NOTE that, as presently advised, the Court has reservations about the second defendant’s capacity to conduct the proceedings without a tutor, and his understanding of the nature and role of a tutor.
…
9. NOTE that, unless put in funds, the NSW Trustee is unable to arrange a medical examination of the second defendant or consent to appointment as a tutor for the second defendant.
10. NOTE that, as presently advised, the Court is minded to proceed on the basis that a short opportunity might be allowed to the second defendant to obtain a tutor (if he concedes that he lacks the requisite mental capacity to act on his own behalf) but, in the absence of nomination of somebody who is prepared to consent to act as tutor, and in the absence of an independent medical report, the Court will be required to make a decision as to whether the second defendant does in fact lack capacity on the materials otherwise available for that purpose.”
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.
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.
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.
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.
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.
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’.
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.
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.
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.
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.
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.
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.
Section 41 of the NSW Trustee and Guardian Act 2009 (NSW) relevantly provides:
41 Orders by Supreme Court for management of affairs
(1) If the Supreme Court is satisfied that a person is incapable of managing his or her affairs, the Court may—
(a) declare that the person is incapable of managing his or her affairs and order that the estate of the person be subject to management under this Act, and
(b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee.
(2) The Supreme Court may make an order on its own motion or on the application of any person having a sufficient interest in the matter.
(3) For the purposes of this section—
(a) evidence of a person’s capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and
(b) the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with any such examination, and
(c) the Court may otherwise inform itself as to the person’s capability to manage his or her own affairs as it thinks fit.
39 General principles applicable to Chapter
It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles—
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation.
3 Definitions
(1) In this Act—
…
person under legal incapacity means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes—
(a) a child under the age of 18 years, and
(b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and
(c) a person under guardianship within the meaning of the Guardianship Act 1987, and
(d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and
(e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.
…
tutor, in relation to a person under legal incapacity, means a tutor appointed to represent the person (whether by the court or otherwise) in accordance with the uniform rules.
…
80 Directions to tutor of person under legal incapacity
On the application of the tutor for a person under legal incapacity, the Supreme Court may give directions with respect to the tutor’s conduct of proceedings, whether before the Supreme Court or any other court, on behalf of that person.
7.13 Definition
In this Division, person under legal incapacity includes a person who is incapable of managing his or her affairs.
7.14 Proceedings to be commenced or carried on by tutor
(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.
7.15 Tutors generally
(1) Subject to this Division, a person may become the tutor of a person under legal incapacity without the need for any formal instrument of appointment or any order of a court.
(2) Any person (other than a corporation) is eligible to be the tutor of a person under legal incapacity, in respect of any proceedings, unless the person is—
(a) a person under legal incapacity, or
(b) a judicial officer, a registrar or any other person involved in the administration of a court, or
(c) a person who has an interest in the proceedings adverse to the interests of the person under legal incapacity.
(3) In the case of proceedings with respect to the estate of a person whose estate is subject to management under the NSW Trustee and Guardian Act 2009, the tutor of that person is to be the person who has the management of the person’s estate under that Act.
(4) Subrule (3) does not apply if the person concerned declines to act as tutor or is unable to act as tutor, or if the court orders otherwise.
(5) A person may not replace another person as tutor of a person under legal incapacity except by order of the court.
(6) Anything that these rules authorise or require a party to do in relation to the conduct of proceedings may, if the party is a person under legal incapacity, be done on his or her behalf by his or her tutor.
…
7.18 Court may appoint and remove tutors
(1) In any proceedings in which a party is or becomes a person under legal incapacity—
(a) if the person does not have a tutor, the court may appoint a tutor, or
(b) if the person has a tutor, the court may remove the party’s tutor and appoint another tutor.
(2) In any proceedings concerning a person under legal incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings.
(3) If the court removes a party’s tutor, it may also stay the proceedings pending the appointment of a new tutor.
(4) Subject to any order of the court, notice of any motion under this rule is to be served on the person under legal incapacity and, if it proposes removal of the person’s tutor, on the tutor.
(5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include—
(a) evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and
(b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.
(6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor.
“In all cases, the Court is obliged to apply an independent mind to the question of capacity, conscious that there is a strong public interest element in the proceedings, and that they are not adversarial in character.”
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].
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]:
“… although a decision about whether a particular person is, or is not, capable of managing his or her affairs may be powerfully informed by an expression of medical opinion, based upon articulated observations of fact and accompanied by an exposition of technical medical terms, a determination about capacity for self-management made upon an exercise of protective jurisdiction (or in the context of consideration of a perceived necessity for a tutor) is not, in essence, the province of medical expertise, but of independent judgement by a court applying established criteria to particular facts.” (emphasis in original)
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.
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.
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:
“2. Order that the first defendant respond to the email from Janine Foo to her of 16 December 2025 at 9.41am and the email from Janine Foo to her of 20 November 2025 at 4.11pm by 13 March 2026.”
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.
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.
The orders will be as follows:
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.
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.
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).
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).
Order that the NSWTG file their consent to act as tutor for the second defendant by 20 March 2026.
Order that the costs of the NSWTG in these proceedings be paid out of the estate of the second defendant on an indemnity basis.
Reserve to the parties liberty to apply for consequential orders in the working out of these orders.
Stand the matter over for further directions on 10 April 2026.
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.
**********
RM
CM [2026] NSWSC 200