Contempree v Contempree
[2014] NSWSC 945
•16 July 2014
Supreme Court
New South Wales
Case Title: Contempree v Contempree Medium Neutral Citation: [2014] NSWSC 945 Hearing Date(s): 16 July 2014 Decision Date: 16 July 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Judgment for the Plaintiff for possession of the land contained in the certificate of title, folio identifier 23/833377 being the land situated at 15 Driftwood Court, Coffs Harbour.
2. Leave to issue a writ of possession forthwith.
3. The writ of possession is not to be executed prior to 28 August 2014.
4. The First Defendant is to pay the Plaintiff's costs of the proceedings.
Catchwords: REAL PROPERTY - possession of land - plaintiff under the management of the NSW Trustee and Guardian - son in occupation of Plaintiff's house - Trustee takes decision to sell in order to meet nursing home expenses of Plaintiff - decision affirmed by Administrative Decisions Tribunal - son joined as a party to proceedings in ADT on his application - no defence to claim for possession Category: Principal judgment Parties: Sandra Dawn Contempree by her tutor the New South Wales Trustee & Guardian (Plaintiff)
Paul Contempree (First Defendant)
Melissa Stanford (Second Defendant)Representation - Counsel: Counsel:
G Patterson (Plaintiff)
In person (First Defendant)
No appearance (Second Defendant)- Solicitors: Solicitors:
Shaw McDonald Lawyers (Plaintiff)
Self represented (First Defendant)
No appearance (Second Defendant)File Number(s): 2013/172673
JUDGMENT
The Plaintiff seeks possession of the house and land at 15 Driftwood Court, Coffs Harbour. The registered proprietor of the land is Sandra Dawn Contempree, but her affairs have been under the care of the NSW Trustee and Guardian since November 2009, when the Trustee and Guardian ("the Trustee") was appointed as the financial manager for the Plaintiff.
There have been various applications by the Plaintiff herself and some members of her family to have the financial management order revoked, but these applications have been unsuccessful. In addition, on 11 April 2012, the Guardianship Tribunal appointed the Plaintiff's two daughters as guardians to make decisions for the Plaintiff's accommodation, health, care and services.
Since its appointment, the Trustee made a decision that the property in Coffs Harbour needed to be sold principally in order to provide a fund to pay nursing home and other fees for which the Plaintiff had become liable and which were increasing over time. The evidence discloses that in the absence of the sale of the property those liabilities would not be able to be met. The present position is, for example, that the amount outstanding to Roseneath Aged Care, who run the nursing home where the Plaintiff resides, exceeds $68,000. The Trustee, therefore, made a decision that the property should be sold.
A review of that decision came before the Administrative Decisions Tribunal on 7 December 2011 and 27 February 2012. On 14 June 2012, the ADT affirmed the decision of the Trustee. The ADT acknowledged that the Plaintiff did not wish her house to be sold.
The judgment of the Tribunal notes, at paragraph [29], that the First Defendant in the present proceedings, Paul Contempree, made application to be joined as a party to the proceedings in the ADT, and he was so joined. No appeal was taken from the decision of the ADT on 4 June 2012.
To give effect to its decision to sell, the Trustee brought the present proceedings.
When the proceedings were instituted, it was believed that the two persons named as defendants, that is Paul Contempree (the First Defendant), and Melissa Stanford (the Second Defendant), were in occupation of the property. At least since the proceedings have been instituted, it is clear that the Second Defendant is not in occupation of the property.
The only active defendant therefore is the First Defendant. After the proceedings were instituted, the First Defendant was represented, it would seem on a pro bono basis, by Norton Rose Fulbright who filed the defence on his behalf on 30 July 2013. The defence does not in fact demonstrate any defence that the law knows to the claim being made, except perhaps that it was asserted that the First Defendant resided in the property with the agreement of the Plaintiff, his mother.
The remainder of the defence dealt with his own personal situation including his ill health, and pointed out that from time to time he had made payments both by way of occupation fee and for various utilities and liabilities such as insurance. It was also said that he had made non-financial contributions towards the property. None of those matters provides a defence to the Plaintiff's claim.
Even if it were the case that he had resided in the property with his mother's agreement, those matters changed at least at the time when the Trustee was appointed as the Plaintiff's financial manager. If there was any doubt about that, the legal position was undoubtedly established by the decision of the ADT that confirmed the decision of the Trustee that the property should be sold. That is emphasised by the fact that the First Defendant was joined as a party to those proceedings and is therefore bound by the decision.
At the outset of the application today, the First Defendant who is now appearing for himself, sought an adjournment of the proceedings. He tendered an email exchange outlining his correspondence with various officers of this Court. In that email exchange, he said that it was only by chance on Friday of last week, that is Friday 11 July, that he discovered by searching the Court listings online, that the Trustee "was possibly forging ahead with Supreme Court action".
These proceedings were fixed for hearing today by the Registrar on 14 April 2014 who directed that the Plaintiff notify the First Defendant of the orders made including the hearing date. By letter dated 14 April 2014, the Plaintiff's solicitors informed the First Defendant that the matter was listed for hearing today. The First Defendant has suggested that some oral agreement was reached between that time and last week that suggested today's hearing would not go ahead. However, there was no evidence of that.
The First Defendant has had ample opportunity to put forward any evidence and any other material in support of his defence to the claim. He has not done so. He says that he needs more time to do this because of his late discovery that the proceedings would go ahead. In my opinion, he has had sufficient notice that the proceedings would be going ahead today, and for that reason, I declined to grant an adjournment.
The First Defendant in his submissions made allegations, based on no evidence at all, that suggested there was a conspiracy involving the Trustee, the Guardianship Tribunal and the ADT, and claims that the Trustee is using the nursing home fees as a ploy to sell the house and evict him from it. There is no evidence of any of these matters. In particular, the First Defendant had served no affidavits despite being directed to do so by 17 March 2014 on 3 February 2014.
Contrary to the First Defendant's assertions, the evidence filed by the Trustee, which has annexed the reasons for all of the applications decided by the Guardianship Tribunal and the ADT, shows that careful consideration has been given by those bodies, as well as by the Trustee itself, about what should happen to the Plaintiff and what should happen to the property in Driftwood Court, in the face of internecine family disputes.
In my opinion, the First Defendant does not establish that he has any defence to the claim. The Plaintiff is entitled to possession of the property.
The First Defendant seeks what he describes as the "longest time possible" to remain in the house before any writ of execution is executed. The evidence tends to show that no occupation fee has been paid by him for the occupation of the property since August last year, and only small amounts were paid in any event prior to that time. Since, however, it is a property that he has been occupying as his home, I consider it is appropriate that he should have six weeks to vacate the property. In those circumstances, I will make these orders:
1. Judgment for the Plaintiff for possession of the land contained in the certificate of title, folio identifier 23/833377 being the land situated at 15 Driftwood Court, Coffs Harbour.
2. Leave to issue a writ of possession forthwith.
3. The writ of possession is not to be executed prior to 28 August 2014.
4. The First Defendant is to pay the Plaintiff's costs of the proceedings.
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