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Contents (1970 - 01)
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Supreme Court Rules 1970
Current version for 6 January 2017 to date (accessed 24 March 2017 at 09:06)
Part 78 Division 9 Subdivision 4
Subdivision 4 Notices served on persons under legal incapacity
61   Service on persons under legal incapacity
(cf former Part 78, rule 58)
(1)  Service on a person under legal incapacity of a notice under this Division is to be effected in accordance with this rule.
(2)  The notice may be served:
(a)  if the person has a tutor, on the tutor, or
(b)  if the person has no tutor, on someone with whom the person resides or in whose care the person is.
(3)  If the person to be served is a minor, the notice may also be served:
(a)  on the minor, but only if he or she is aged 16 years or more and is under legal incapacity by reason only of minority, or
(b)  on a parent of the minor, or
(c)  on a guardian of the minor’s person or estate.
(4)  The notice may also be served on any person (including the person under legal incapacity) whom the Court may, before or after the service, approve.
(5)  Service of the notice on a person under legal incapacity who has no tutor does not take effect until a tutor is appointed.
62   Notice to be answered by tutor
(cf former Part 78, rule 58)
(1)  A person under legal incapacity may not answer a notice under this Division otherwise than by his or her tutor.
(2)  If a person under legal incapacity has a tutor who has or may be given authority, under the NSW Trustee and Guardian Act 2009, to answer the notice on that person’s behalf, then, unless the Court otherwise orders, no person other than the tutor may answer the notice.
(3)  If a notice of proceedings is served on a person under legal incapacity and that person’s tutor is appointed to answer the notice, the appointment extends to the tutor electing on that person’s behalf to become a defendant in the proceedings.
(4)  If a person under legal incapacity elects by tutor to become a defendant in the proceedings, Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 applies as if the tutor had been appointed as provided by that Division.
63   Appointment of tutor
(cf former Part 78, rule 59)
(1)  Any person may apply for an order appointing the person as tutor for a person under legal incapacity.
(2)  The application may be made:
(a)  except as provided by paragraph (b), by summons, or
(b)  if proceedings on an application for the grant of probate or administration have already been commenced, by notice of motion in the proceedings,
and may be dealt with by the registrar in the absence of the public and without any attendance by or on behalf of any person.
(3)  There is to be no defendant in proceedings on a summons referred to in subrule (2) (a).
(4)  A tutor must not be appointed unless:
(a)  he or she is the person applying for appointment, or
(b)  evidence of his or her consent to act as tutor has been filed.
(5)  Subject to rule 62 (4), Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 does not apply to the appointment of a tutor under this rule.