Desmond v The Public Trustee (WA)

[2017] WASC 38

DESMOND -v- THE PUBLIC TRUSTEE (WA) [2017] WASC 38

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WASC 38
Published:	16/02/2017
Case No:	CIV:2297/2005	Heard:	20 JANUARY 2017
Coram:	MASTER SANDERSON	Delivered:	9/02/17
No of pages:	4	Judgment Part:	1 of 1
Result:	Directions given
Category:	B
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Parties:	PAUL PHILLIP DESMOND by his Next Friend THE PUBLIC TRUSTEE (WA) THE PUBLIC TRUSTEE (WA) as Executor of the Will of EVA MARIAN DESMOND (Dec) VICKI LINDA LEVY NOEL JOHN BROWN DEANE WESLEY BROWN CHRISTOPHER NOEL BROWN
Catchwords:	Trustee Application for directions Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DESMOND -v- THE PUBLIC TRUSTEE (WA) [2017] WASC 38 CORAM : MASTER SANDERSON HEARD : 20 JANUARY 2017 DELIVERED : 9 FEBRUARY 2017 PUBLISHED : 16 FEBRUARY 2017 FILE NO/S : CIV 2297 of 2005 MATTER : Section 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 (WA)

The Estate of Eva Marian Desmond (Dec)

BETWEEN : PAUL PHILLIP DESMOND by his Next Friend THE PUBLIC TRUSTEE (WA)

Plaintiff

AND

THE PUBLIC TRUSTEE (WA) as Executor of the Will of EVA MARIAN DESMOND (Dec)
First Defendant

VICKI LINDA LEVY
Second Defendant

NOEL JOHN BROWN
Third Defendant

DEANE WESLEY BROWN
Fourth Defendant

CHRISTOPHER NOEL BROWN
Fifth Defendant

Catchwords:

Trustee - Application for directions - Turns on own facts

Legislation:

Nil

Result:

Directions given

Category: B

Representation:

Counsel:

Plaintiff : Ms W F Gillan
First Defendant : Ms H Finch
Second Defendant : In person
Third Defendant : In person
Fourth Defendant : In person
Fifth Defendant : In person

Solicitors:

Plaintiff : Public Trustee (WA)
First Defendant : Public Trustee (WA)
Second Defendant : In person
Third Defendant : In person
Fourth Defendant : In person
Fifth Defendant : In person

Case(s) referred to in judgment(s):

Nil

MASTER SANDERSON:

(This judgment was delivered extemporaneously on 9 February 2017 and has been edited from the transcript.)

1 There are times when problems do not appear to have obvious solutions and this is one of them. The matters that are raised pose a series of questions and the Public Trustee is, effectively, seeking directions as to what is to be done in relation to the occupation of a property by the present plaintiff. Question 1 is whether or not par 2(1) of the orders made 3 July 2006 create an obligation on the plaintiff to pay the outgoings, including rates, taxes and insurance, on the Willagee property and maintain it in good repair and condition while he resides in it.

2 There is no argument, as I understand it, about the outgoings. The question is whether or not an obligation to maintain the property in good repair and condition is created. I am satisfied that it was. That was an intention of the order and I think that's the clear meaning of the order as read so it is incumbent upon the plaintiff to maintain the property. The second question is, then, whether or not there has been a failure to maintain the property.

3 In my view, looking at the evidence such as it is - and I accept there are difficulties in obtaining evidence - that there has been a failure to maintain. I accept that the question of whether or not a property is being maintained has to be determined on a task by task basis but I think it is clear, given the overall condition of this property, that there has been a failure to maintain. What follows, then, is the question of what is the consequence of the failure to maintain. Following on from the above it is clear some of the items which are referred to as maintenance items are in fact capital items. The hot water system for instance seems to me to be a capital item. However, most of the rest of the matters raised are maintenance items - painting, deteriorating guttering and the like. I understand there is a large measure of agreement between the parties as to what items of maintenance need attention. If a dispute arises then the parties can bring the matter back to court under the liberty to apply provision.

4 The Public Trustee has postulated three possibilities. One is automatic determination of the plaintiff's right; the second is the first defendant having the right to terminate the plaintiff's right to reside in the property; the third possibility is that the first defendant has the right to recover any loss accruing to the estate. The authorities on this are mixed and I think this really is where the difficulty arises with the case.

5 On balance, I am satisfied that the first defendant has the right to terminate the plaintiff's right to reside in the property and to retake possession. In saying that, I am cognisant of the limitations of the plaintiff and the difficulties that will arise by any termination of the right to occupy; but the continued occupancy of the premises by the plaintiff, I think, is fraught with risk and the better course is, with due notice, to require the plaintiff to vacate the property.

6 Now, quite how effect is to be given to the first defendant's right to terminate is, of course, a matter for the first defendant. It may be that further directions would be required. But if those directions were required it would seem to me that, first and foremost, there should be reasonable notice - perhaps three months notice - and that the plaintiff should be given the opportunity to rectify any defects in the property.

7 That, I appreciate, will require a degree of cooperation from the plaintiff which, to date, has not been forthcoming. But the notice having expired, if the defects in the property haven't been rectified, then it would seem to me that the first defendant would be justified in removing - or having removed from the property - the plaintiff.

8 I am satisfied that, in the circumstances of this case, there is, in the first defendant, a right to give notice but that that notice should allow for the possibility of rectification of any failure to date with a view to the plaintiff remaining in the property, if possible.

9 There should be liberty to apply. Each party is to bear their own costs.