There was a rather sobering outcome for a Tutor in a family provision claim of Harris v Carter [2020] NSWSC 196 who was ordered to pay costs when the Plaintiff, a minor, lost his family provision claim. It can be extremely difficult to find a tutor willing to act if another member of the family is also making a claim since their interests are then adverse to the Plaintiff’s interests.
Judge Hallen noted that whilst the Tutor was strictly, not a “party”, the tutor is to be regarded as a party for the purpose of making costs orders. He directed that the Defendants may enforce the costs order directly against her since the Plaintiff was a person under a legal incapacity:
Judge Hallen went on to say “Naturally, I considered that it might be thought to be unfair for [her] to be liable for costs as she did not stand to personally benefit from the proceedings and only consented to act as tutor because the Plaintiff was under a legal incapacity. But that could be said for nearly every tutor.” Clearly it is very important to explain to a tutor the risk they may run in agreeing to act.
