Allwood v Allwood

[2005] NSWSC 671

CITATION:	Allwood v Allwood [2005] NSWSC 671
HEARING DATE(S):	24/06/05
JUDGMENT DATE :	24 June 2005
JUDGMENT OF:	White J
DECISION:	1. Order that the order made on 10 June 2005 be dissolved; 2. Order that the plaintiff pay the defendant's costs of the notice of motion.

CATCHWORDS:	PRACTICE AND PROCEDURE - Application to extend injunction restraining elderly woman from dealing with her property - Plaintiff's son apprehends that other son living with mother may take advantage of her - Jurisdiction of court to make orders for the protection of persons from improper pressure - Serious question to be tried as to whether defendant is incapable of managing her affairs - No real threat that defendant may dissipate her own property - Held that evidence of risk is very slight - Injunction dissolved.
LEGISLATION CITED:	Protected Estates Act 1983 (NSW) Mental Health Act 1958 (NSW)
CASES CITED:	G N M v E R (1983) 1 NSWLR 144 Re SB (1905) 22 WN (NSW) 144a
PARTIES:	Peter Allwood v Rosalind Allwood
FILE NUMBER(S):	SC 3417/05
COUNSEL:	Plaintiff: J Armfield Defendant: L Ellison
SOLICITORS:	Plaintiff: Taperell Rutledge Defendant: Benjafield & Associates Solicitors

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

WHITE J

Friday, 24 June 2005

3417/05 Peter Allwood v Rosalind Allwood

JUDGMENT

1 HIS HONOUR: The plaintiff moves for the continuation of an order made on 10 June 2005 that the defendant be restrained from selling, transferring or dealing with land at 99 Eastern Valley Way, Castlecrag of which she is the registered proprietor.

2 The substantive claim made in the proceedings is for a declaration that the defendant is incapable of managing her affairs and for an order that her estate be subjected to management under the Protected Estates Act 1983 and for consequential relief.

3 The property in question is occupied by the defendant and one of her sons, Anthony Allwood. It is clear that there are disputes between the defendant’s children, being the plaintiff, who is her son Peter Allwood, her daughter, and her son Anthony.

4 The injunction sought is said to be for the protection of the defendant herself. The plaintiff says that if the order is continued, so that the defendant is restrained from dealing with her own property, then any person having notice of the injunction will be in contempt if he or she deals with her in relation to the property. In this way the injunction would indirectly prevent Anthony Allwood from exercising improper influence over his mother in relation to her property.

5 Anthony Allwood is not a party to the application. However, it is on the basis of the plaintiff’s apprehension as to what he might do, that the application has been made.

6 The plaintiff puts forward three propositions. First, that there is a serious question to be tried as to whether the defendant is incapable of managing her affairs. He submits the evidence strongly points to that view.

7 Secondly, that there is reason to apprehend, albeit from circumstantial evidence, that Anthony Allwood may take advantage of the defendant’s condition to induce her to transfer her house or an interest in it or otherwise deal with the house, for his advantage.

8 Thirdly, that it would be a proper exercise of the Court’s inherent jurisdiction in respect of persons who are or may be incapable, to make orders whose practical effect would be to protect the defendant from such improper pressure.

9 As to the first of the propositions, I accept that there is a serious question to be tried as to the defendant’s capacity to manage her affairs. A report prepared in October of last year by a consultant psychiatrist at Manly District Hospital, to which the defendant had been admitted following a fall, records that the defendant was unable to give a clear account of her financial affairs; that she would not consider giving her children financial control as they could not agree with one another; and that she suffered cognitive defects that made her incapable of looking after her financial affairs.

10 There are later medical opinions that the defendant has reached the stage now where she cannot sensibly cope with her financial affairs and that it would be sensible for someone to take over that role for her. However, the same doctor opines that she could broadly understand the nature and effect of a legal document, such as a will or power of attorney, provided it was kept very simple.

11 The defendant herself has sworn an affidavit in which she deposes that she eats well, is well clothed, and is comfortable at the Castlecrag house with her son Anthony. She is concerned about the motives of the plaintiff in bringing the proceedings and believes that they are not brought out of concern for her welfare, but out of malice towards her son Anthony and because the plaintiff believes that Anthony may be improperly getting assets from her. She denies that is the case, and says she has no desire to transfer her property.

12 I do not infer that this evidence was given by the defendant under the influence of third parties, or that she was not capable of understanding what she said. The views expressed are simple enough concepts and certainly no more complex than her observation last year as to the reasons why she did not want her children to have financial control of her affairs.

13 Nonetheless, I accept the first premise in the plaintiff’s argument. There is a serious question to be tried as to whether she is capable of managing her affairs.

14 What then is the basis of the threat that Anthony may take advantage of her? The evidence in that direction is very slight. It amounts to Mr Peter Allwood and his sister Mrs Judith McDonald, adverting to personal matters concerning the character and the behaviour of their brother, which are not themselves of a kind which would indicate an enhanced possibility that their brother would engage in improper dealings in relation to his mother or her property.

15 It also extends to evidence that Anthony Allwood had left their parents’ holiday house in a bad, or to use Mrs McDonald’s expression, “disgusting”, condition, an observation which is prima facie irrelevant to any issue in the proceedings.

16 There is an allegation that Anthony refuses to honour his mother’s requests as to where he should sleep and how he should conduct himself in the Castlecrag home, that he has procured access to his mother’s Bankcard account so that he is spending her money, and that he has had the gas and electricity transferred to his name but has not paid the bills so that there is a risk that the services will be cut off.

17 It is also suggested that Mr Peter Allwood and Mrs McDonald have been unable to communicate with their mother, and it may be said that Anthony is responsible for that. A health care worker has been unable to communicate with the defendant and Anthony had told a process server that his mother was not at home.

18 Of all of these matters the only one which raises a concern, or possible concern, relevant to an apprehended dealing with the defendant’s property, is the evidence concerning the access to the defendant’s Bankcard account. However, none of this material has been tested. Anthony Allwood was not joined as a party to the proceedings and I do not infer from the material that there is an appreciable risk of his applying improper pressure on his mother to induce her to deal with her property in his favour.

19 There is no other identified risk that the defendant may, because of her alleged incapacity, deprive herself of or encumber her property at 99 Eastern Valley Way, Castlecrag.

20 There is no doubt as to the jurisdiction of the Court in appropriate cases to make orders of the kind which are sought.

21 I was referred by counsel for the plaintiff to a decision of Powell J, as his Honour then was, in G N M v E R (1983) 1 NSWLR 144 at 148 to 149 where his Honour made an interim order for the appointment of the Protective Commissioner as receiver and manager of the property and affairs of the defendant pending the determination of the application for the appointment of a manager under s 39 of the Mental Health Act 1958. More directly in point is the decision of Simpson CJ in Eq in Re S B (1905) 22 WN (NSW) 144a where, there being a sufficient prima facie case as to the mental health of the defendant, the Court made an order restraining the defendant from dealing with his own property until the petition for a declaration that the defendant was incapable of managing his affairs was determined.

22 The order was made with a view to preservation of the defendant’s property until the petition was heard. There was though, in that case, a clear threat by the defendant himself to withdraw all of the money in his bank account. The order was made ex parte and, as counsel observed in this case, it was not known what happened on the return of the injunction.

23 The distinction between that case and the present, is the presence in that case of the threat that, by reason of his incapacity, the person who might stand in need of protection might dissipate his own property, and the absence of such a real threat in the present case.

24 I am unconvinced that the orders sought in this case, if they were made, would really be for the defendant’s welfare. I think it likely that it would be distressing for a 98 year old woman, who is defending a claim that she be declared incapable of managing her affairs, to be told that an injunction had been granted by the Court to restrain her from dealing with her own property.

25 Moreover, although the claim is put as a claim for the protection of the defendant, one cannot ignore the real possibility that the protection which is sought may be for the plaintiff or his sister, against any dealings by their mother of her property which might affect any claim they may have on her estate.

26 There is certainly no threat that I can see that even if the defendant did deal with her property in favour of Anthony, that there was a risk she would be thrown out of her property, or anything of that kind.

27 In the circumstances I do not consider that it is appropriate to extend the injunction which was made on 10 June 2005 and I order that the order made on that day be dissolved.

28 I order that the plaintiff pay the defendant’s costs of the notice of motion.

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