C v C
[2007] TASSC 87
•12 November 2007
[2007] TASSC 87
CITATION: C v C [2007] TASSC 87
PARTIES: C, G G
by her Litigation Guardian
C, M L
v
C, A G
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: 424/2005
DELIVERED ON: 12 November 2007
DELIVERED AT: Hobart
HEARING DATES: 20 and 21 September 2007
JUDGMENT OF: Slicer J
CATCHWORDS:
Mental Health – Guardians, Committees, administrators, managers and receivers – Other matters – Guardianship and Administration Board (Victoria and Tasmania) – Appointment of administrator of estate.
Aust Dig Mental Health [4]
Mental Health – Guardians, Committees, administrators, managers and receivers – Management and administration of property – General matters – Trespass and damages.
Guardianship and Administration Act 1995 (Tas).
Power of Attorney Act 2000 (Tas).
Aust Dig Mental Health [8]
REPRESENTATION:
Counsel:
Plaintiff: In Person
Defendant: In Person
Solicitors:
Plaintiff: FitzGerald & Browne
Defendant: In Person
Judgment Number: [2007] TASSC 87
Number of Paragraphs: 33
Serial No 87/2007
File No 424/2005
G G C by her Litigation Guardian
M L C v AGC
REASONS FOR JUDGMENT SLICER J
12 November 2007
M L C, the plaintiff, is the son and litigation guardian of G G C who is a party to an agreement with the Director of Housing in respect of a residential property in Tasmania. The defendant, A G C, also the son of G G C is the present occupant of that property and has refused to deliver up possession of that property as requested by the plaintiff.
By writ filed on 3 October 2005, the plaintiff claimed possession of the property on the basis of the tort of trespass and damages for the continuing trespass of that property. He claims the right as administrator under the Guardianship and Administration Act 1995. The defendant does not admit the validity of the appointment of his brother as administrator and pleads that:
(1)he has resided with his mother, who was then aged 83, since March 2002 at the property and that during that time he has been her primary carer, "… assisted her in daily living and providing company and family contact".
(2)"The plaintiff was not returned to Tasmania after holiday of April 2003 by the litigation guardian (her son) against her normal wishes and lifestyle and gave direct and implied consent of the named defendants residence at her normal residence for her own reasons in her unplanned absence."
(3)He denied allegations:
(a) he was in possession without the consent of his mother or the administrator;
(b) he had repeatedly wrongly refused to deliver up possession of the property;
(c) his possession of the property had deprived the plaintiff of the use and enjoyment of the property or caused loss and damage.
The claim for damages amounting to approximately $26,000 is based on loss of rental profits to be assessed as and from 23 February 2005.
Agreement and status of property
On 6 March 1969 the Director of Housing entered into an agreement with G G C for the purchase of the house and land for the price of $9,120. No deposit was required, but the purchaser was required to pay interest on the purchase money at the rate of 4.25 per cent and to pay that interest and the balance of the purchase money by weekly instalments of $8.35. The purchaser was entitled to pay additional money on account in reduction of the balance purchase money and provision was made for the payment of additional interest on overdue payments and the retention of rights and remedies of the Director at common law or in equity, in addition to any statutory remedy afforded by the Homes Act 1935. During the currency of the agreement, the purchaser was required to pay rates and taxes and general conditions to keep the premises in repair, and in a clean condition and free from vermin and the like. Pending purchase, a separate claim permitted payments of rates and taxes to be paid by the Director with a separate calculation for weekly payments to be reimbursed by the tenant. Relevant to these proceedings is the Agreement, cl 8 of which provides:
"possession of the said lands and hereditaments will be given to the purchaser forthwith on the singing of this agreement but until the whole of the said purchase money and interest and all other payments due by the purchaser hereunder shall have been paid to the Director the purchaser shall not without the previous consent in writing of the Director ¾
(a) let sub-let part with the possession of or otherwise cease personally to reside upon or charge the said lands and hereditaments or any part thereof or his interest therein or assign the benefit of this agreement.
(b) use or permit the said lands and hereditaments to be used other than as a private residence for himself and his family or keep any lodger boarder or paying guest.
(c) alter or add to the said lands and hereditaments or any part thereof or drive nails or screws into the walls or paper or paint the walls or any part of the buildings or do or allow to be done any decorative or other work to them.
(d) alter or add to existing fences or increase the height thereof."
The relevant file of the Director has been received into evidence and an officer of the Department appeared as a witness for the plaintiff. The Director is able to complete the contract or consent to the subletting of the premises. There had been defaults in the payment of interest and capital which followed the admission of Mrs C to a nursing home and a result of complications created by inadequate communication, compounded by the fact that the plaintiff lives in Victoria. Those matters have been dealt with and the account is currently in credit. The records of the Department show that some payments have been made by A C in and since February 2007, but that most of the financial arrangements have been conducted by the plaintiff. The Director has no difficulty with co-operating with the plaintiff in any appropriate resolution of use or arrangement of the property. On 15 November 2006, the Valuer-General certified that as of 1 October 2000, the land and capital values of the premises were $24,000 and $61,000, respectively.
General history and background
Mrs C was born in December 1920. Like many of her generation, she had had a good, industrious, but difficult life. She had struggled through the Depression and the hardships brought about by war. She had devoted herself to the raising of her family and retained her dignity and sense of responsibility through the hardships. She was self-reliant and retained a strong sense of independence. She had lived alone in the house, but age and the onset of Alzheimer's disease in 2001 impaired her capacity to care for herself. It was for that reason that in March 2002, her son A, the defendant, moved into the home to assist with her care. It is not unfair to A to state that he was not without his own hardships and difficulties in life. It is neither appropriate nor necessary for this Court to consider in detail or make judgment in the respective difficulties and tensions which developed within the family. The plaintiff and another brother were living in Melbourne and the perceptions of care, capacity and health of a mother were different, and family relationships became strained and fractured. This is not a case involving greed or envy. This is not a case where the respective parties were indifferent to the interests of a mother. But tensions had led to hostility and eventually to this hearing.
It would be fair to say that as of 2003 – 2004, the physical and mental condition of Mrs C required assistance beyond the resources which any single member of the family could provide. That observation is not a criticism of any family member. Some of the care required could only have been provided through professionals and institutions. In 2002, some concerns were expressed about the living arrangements and deterioration in Mrs C's health. She suffered a fall which required the calling of an ambulance and hospitalisation.
In April 2003, A accompanied his mother to Melbourne on a holiday and contact with her family and friends. There was a general expectation that she would return to Tasmania in about June and that she and A would continue to live at the house. However, she remained in Melbourne, living with her son D and his family. Whilst there she was injured and was again admitted to hospital. There an assessment team concluded that Mrs C required 24-hour care. A returned to Tasmania and his mother continued to live with D's family.
In December 2002, Mrs C had appointed her sons M, D and A as her attorneys through the grant of an enduring power of attorney and registered pursuant to the Power of Attorney Act 2000 (Tas). On 2 December 2003, the Victorian Civil and Administrative Tribunal dismissed applications for a guardianship order, administration order and the revocation of the enduring power of attorney on the grounds that:
"The Tribunal is not satisfied that the proposed represented person needs a guardian [and] … not satisfied that the proposed represented person needs an administrator as there is an enduring power of attorney held by her sons which appears to be workable."
The evidence does not show who initiated those proceedings, but the letter dated 24 December 2003 from the Registrar of the Tribunal to the defendant suggests that it was A who had sought the order.
In January and April 2004, the plaintiff came to Tasmania and catalogued and removed family items from the house. He stated in evidence that his purpose was to clean up the house, sort out his mother's papers and possessions, and to prepare the house for rental. The visits and his actions could have been better handled. There was trouble between the brothers, M and A. The defendant believed that his mother was being kept in Melbourne against her wishes and best interests. M and D believed that their mother required more intensive care than would be provided by A. The January visit by the plaintiff was a disaster. It is not necessary to make specific findings as to the course of events. A alleged that he had been assaulted and applied for a restraint order on 12 January 2004, seeking protection for Mrs C from M. The various relationships deteriorated, although two letters sent by Mrs C to her son A in early 2004 suggest that she was attempting to remain neutral in any disputation.
The dispute between the sons intensified. On 28 June 2004, M wrote to A, stating:
"As you're aware, we need to prepare Mum's house for rental, so that it can generate income. You have said for quite some time now that you were planning to move out. Could you phone (or write) and let me know when this is likely to be. I would also appreciate some feedback regarding the state of the house, as I intend coming down again in the next few days to continue work on it."
There was no agreement.
On 30 November 2004, the Victorian Tribunal declared it was satisfied that:
"1The donor lacks the capacity to make an enduring power of attorney or to revoke the said enduring power of attorney.
2The attorneys [M L C and D R C] can no longer act as attorneys because of a breakdown of their relationship with their brother [A G C].
The Tribunal is unable to revoke the appointment of the attorneys as the enduring power of attorney has been executed and registered in accordance with the Laws of the State of Tasmania. The Tribunal notes that the major assets of the donor are situated in the State of Tasmania and that the donor is a permanent resident of the State of Victoria.
The Tribunal is satisfied that the proposed represented person has a disability; is unable by reason of that disability to make reasonable judgments about their estate; and needs an administrator."
and ordered that:
"1The following persons be appointed joint administrators of the estate with all the powers and duties conferred by Part 5 Divisions 3 and 3A of the Guardianship and Administration Act 1986:
[M L C Address]
[D R C Address]."
That order was brought before the Guardianship Board of Tasmania and registered as "an order made under Corresponding Law in accordance with the Guardianship and Administration Act 1995" on 16 December 2004.
Following D C's untimely death and because of the need for intensive care, Mrs C was admitted to a nursing home in early 2005. In May 2005, staff of the nursing home referred her for assessment by the Victorian Mental Health Service. The assessment was made by Dr Ian Presnell, a consultant psychiatrist specialising in "psychiatry of old age", on 20 May 2005. He provided a report for the Guardianship and Administration Board on 1 July 2005 in which he referred to an earlier diagnosis of the onset of Alzheimer's disease and stated as his opinion that:
"I do not believe that the donor appreciates that the nature and extent of her property nor does she understand that she has given the Attorney the authority to manager her property and financial affairs. I do not believe that she understands the consequences of this decision as outlined I the report proforma. I do not believe that she currently has the capacity to make reasonable decisions or judgements in relation to her property."
Dr Presnell gave evidence on the hearing of this action. In his evidence he confirmed statements and opinions expressed in a proof of evidence dated 29 June 2007 that:
"13It is my opinion following the assessment of [Mrs C] on the 20th May 2005 that she was not capable of making reasonable plans and following them through.
14It is my opinion that [Mrs C] was not capable of determining cause and effect relationships. This means that she would not be able to foresee the consequences of actions and therefore not be able to make informed decisions in respect of them.
15It is my opinion that [Mrs C] did not appreciate the nature and extent of her property.
16It is my opinion that [Mrs C] did not have the capacity to understand financial arrangements about the occupation of her home.
17It is my opinion that in May 2005 [Mrs C] did not have the capacity to make reasonable decisions or judgements in relation to her property or manage her financial affairs at the time of her assessment. In my opinion her mental capacity in this regard would not have improved since May 2005 and would only have declined.
18During the course of the interview, I had no reason to suspect that [Mrs C] was susceptible to undue influence by others.
19It is my opinion, following the assessment that [Mrs C] suffers from Alzheimer's disease.
20Alzheimer's disease is a progressive brain disorder that gradually results in the destruction of a person's brain cells leading to a degeneration of mental function.
21The degeneration of mental function in Alzheimer's sufferers includes irreversible loss of memory and ability to learn, reason, make judgments, communicate and carry out daily activities.
22It is my opinion that there is no prospect of recovery from the condition from which [Mrs C] suffers.
23It is my opinion that [Mrs C] will not regain the capacity to perform the functions that she may have been able to perform prior to my interview with her.
24I have read the definition of 'disability' in the Guardianship and Administration Act 1995 (Tas). It is my opinion that [Mrs C] suffers from a disability within the meaning of that Act."
Following the death of D, the Victorian Tribunal made or varied an order on 14 June 2005 whereby M was appointed as sole administrator. That order was registered in Tasmania on 8 July 2005. On 21 July 2005, the Guardianship and Administration Board of Tasmania reviewed the enduring power of attorney pursuant to an application made under the Powers of Attorney Act 2000, s33. The Board ordered that the power of attorney be revoked and confirmed the order of registration made on 8 July 2005.
On 9 August 2005, the plaintiff went to the residence, caused the locks to be changed and required (by a note left on the door) his brother to obtain alternative accommodation. On 12 August 2005, the Court of Petty Sessions ordered that M C not approach A C directly or indirectly or enter the premises. It extended that order in the absence of the plaintiff on 28 September 2005 until "the finalisation of proceedings".
On 16 November 2006, the defendant applied to the Guardianship Board for a review of its order made on 21 July 2005 and the appointment of himself or the Public Trustee as guardian of Mrs C. The Board dismissed the application on 30 January 2007 and ordered that M C continue as administrator until 24 January 2010 with powers and duties as conferred by the Guardianship and Administration Act 1995, Div4, Pt7.
On 9 July 2007, the Victorian Tribunal extended its earlier order to be reassessed no later than 30 September 2010. It noted in the terms of its order that:
"… the Administrator has taken proceedings in the Supreme Court of Tasmania for vacant possession of the property … situate at [address]…".
The defendant's contention that he is entitled to occupy the premises in accordance with the wishes of his mother cannot be maintained. This Court upheld the validity of the orders of the Victorian Tribunal, the effect of registration of those orders in Tasmania, and the power of the Guardianship and Administration Board of Tasmania to make its separate orders in accordance with the Guardianship and Administration Act. The plaintiff was the lawfully appointed administrator of the estate of G G C which included her interest in, and right to possession of, the property. The plaintiff had the power to require the defendant to give up possession of the premises. Independent of those orders, this Court is satisfied on the evidence provided at trial that at least as of May 2005, Mrs C did not have the capacity to provide or give to her son permission to remain in possession of the premises to the detriment of her own interest. She is the resident of a nursing home requiring intense care. The Court accepts the evidence of the plaintiff that administration of the home and officers of the relevant government department have intimated that failure to properly utilise an asset or derive proper return from that asset prejudices her entitlement to care and treatment at a particular rate. Failure to take steps to realise such asset or return might result in a rearrangement of her entitlement to a subsidised benefit. The Court is satisfied that as and from mid-2005, Mrs C was and remains, unable to properly understand that requirement or make an assessment of risk of detriment. The defendant is not entitled to remain in possession of the premises because of his mother's possession.
The tort of trespass has been made out and the plaintiff, as administrator, is entitled to the remedies of possession and damage.
Damages
The outcome of these proceedings is not pleasant. The circumstances surrounding and giving rise to them are, for reasons which both parties understand, cause for sorrow. Discord and its intensity have led to a fractured family and it may be that the primary or only beneficiary of these proceedings will be the institutions, government or otherwise, providing aged care. The defendant has but limited resources and the Court understands that greed is not the reason why the proceedings have been commenced or defended. An assessment of damages ought not be seen as a form of punishment or vindication of a cause. Indeed, the Court commends, and is grateful to both parties who conducted their respective cases in person, for their civilised and restrained manner, both to the Court and each other. They were civil to each other throughout these proceedings, despite the history of rancour made more intense since it involved family relationships and a mother they both undoubtedly love.
The plaintiff might, on reflection, consider that he could have handled the initial requests, demands or negotiations in a better way. The removal of items of personal value to family and memory was clumsy and perhaps ill-considered. Both parties acknowledged a degree of understanding of the other's position during the course of the hearing.
The Court will not make any assessment of damages as and from demands or requirements made during that initial period.
The plaintiff's solicitors wrote to the defendant on 23 February 2005. The letter requested the defendant to move out of the property and that failure to do so would result in court proceedings. The defendant replied by a faxed transmission dated 17 March 2005, which states:
"Advice from high (?) office would suggest matters will take a different course and I ask for a fortnight of additional time to vacate if necessary".
The plaintiff's solicitors agreed to that course. It is not clear what then occurred. It is clear from correspondence on the file of the Director that at this time both parties were in contact with the Director, attempting to have the matter determined in their favour. The Minister for Health and Human Services had advised the defendant in March that he was aware of the guardianship orders and offered to help him with "public housing assistance".
On 21 July 2005, the Guardianship and Administration Board heard the application by the plaintiff for the revocation of the enduring power of attorney. Notice had been given to the defendant of the date of the intended hearing (21 July) and advising him of the "range of orders available under section 33(2) of the Power of Attorney Act 2000". On 20 July, A C requested an adjournment providing a variety of reasons referred to by the Board in its reasons for decision made on 21 July. The defendant did not attend the hearing but:
"The Board telephoned him from the hearing and indicated that he could attend by telephone. He reiterated his reasons for requesting an adjournment and the Board indicated that these did not constitute valid reasons for an adjournment.
The hearing proceeded with [A C] by telephone and [M C] present in the hearing room. However, [A C] hung up the phone part way through the hearing and was uncontactable thereafter."
On 21 July the Board revoked the enduring power of attorney and confirmed its own order made on 8 July registering the order made by the Victorian Tribunal on 14 June 2005. Nothing seems to have happened until 9 August 2005 when the plaintiff went to the house, changed the locks and left a note with contact number for temporary accommodation and requesting:
"Call me. I'll pack your clothes/papers etc & drop them off at your accomodation [sic]."
It was the visit which led to the application for a restraint order and a further request of the same date to the "Guardianship and Administration Board" for review of the administration order. The defendant had previously written to the Tribunal on 14, 29 June and 1 July 2005. On 22 July, the day after the hearing, the Tribunal requested the defendant to provide evidence:
"… that the administrator has failed to act in the best interests of [Mrs G C], or evidence that the administrator has failed to perform his duties as administrator."
and that on receipt of such material, the Tribunal would then "consider whether to conduct a reassessment hearing". The "60 day" restraint order against the plaintiff was made on 12 August and extended on 28 September.
The plaintiff continued to make payments to the Director. The dates relevant to the assessment of damages will be taken by the Court as 21 July and 9 August 2005. The defendant was aware of the proceedings of 21 July and chose to withdraw from them. He was aware that the plaintiff's right to deal with their mother's property was confirmed. He was made aware on 9 August that possession of the property was required. Accepting one month to be a reasonable time to have allowed the defendant to obtain alternative accommodation, 9 September will be taken as the appropriate commencing date for the assessment.
Evidence was given at the hearing of the action by a property portfolio manager who was familiar with the market in the area and who had undertaken an evaluation of the property. She made the assumption that the building was structurally sound with no infestation and on that assumption, believed that a fair rental value in 2005 would have been in the vicinity of $190 per week. She believed that it would have risen to approximately $220 per week in 2007. There are variables which include how much it would have or will cost to put the home into a good marketable condition. The defendant has made some small payments to the Director as and from February 2007 and they will be taken into account in the assessment. I will adopt a conservative approach and also assume that there would have been costs associated with the letting of the property and management fees thereafter. I will take as a rough estimate the figure of $150 per week as the net loss to the estate for the period 9 September 2005 to 2006 and $170 for the period until 9 September 2007, making a total of $16,640. The same rate will be accepted for the period 9 September to the date of judgment, namely $1,530.
Conclusion
The plaintiff had the benefit of a firm of solicitors who conducted the proceedings and assisted him prepare for trial. At the commencement of the hearing his counsel successfully sought leave to withdraw. The reasons were proper and understandable, and have saved costs. The assistance provided to the plaintiff and the Court was valuable and the Court expresses its appreciation to his solicitors and counsel for that assistance. The plaintiff and defendant, as litigants in person, conducted their respective cases with dignity and courtesy and I extend my respect and appreciation to both. It is regrettable that this matter could not have been resolved in some other way since courts are clumsy vehicles for the resolution of family discord and tension. Here, at least, the hearing did not exacerbate those tensions. The Court is required to give judgment according to law.
The Court finds that the defendant is responsible for the tort of trespass and orders that:
(1)The defendant deliver up possession of the property in its present condition within 21 days of the date of this judgment or such shorter period as he is able to arrange. The defendant is required to advise the plaintiff and the Court of the date on which possession is delivered.
(2)The defendant pay damages assessed in the sum of $18,170. That assessment does not include any period between the day of this judgment and the date on which the defendant gives up possession. The plaintiff will be given liberty to apply if he seeks payment of moneys for that period.
(3)There will be liberty for both parties to apply as to further ancillary orders.
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