Erceg v Erceg
[2022] QSC 198
•16 September 2022
SUPREME COURT OF QUEENSLAND
CITATION:
Erceg v Erceg & Anor [2022] QSC 198
PARTIES:
MARIANNE ERCEG
(Applicant Plaintiff)
v
JOAN ERCEG (formerly known as JOVANKA ERCEG)
(Respondent First Defendant)
and
RAMONA LOREDANA PIZZICHEMI(Respondent Second Defendant)
FILE NO/S:
431 of 2022
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT: Supreme Court of Queensland at Cairns
DELIVERED ON:
16 September 2022
DELIVERED AT:
Cairns
HEARING DATE:
9 September 2022
JUDGE:
Henry J
ORDERS:
1. The second defendant by herself, her servants or agents is restrained until the determination of the trial or further order from taking any step to evict the plaintiff from the house and land at 4 Anne Street, Smithfield being Lot 128 on Registered Plan 729934 subject to title reference 1009136.
2. Liberty to apply on the giving of two business days notice in writing.
3. Costs reserved.
CATCHWORDS:
EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – BALANCE OF CONVENIENCE GENERALLY – where the applicant plaintiff has brought proceedings seeking a declaration that a residential property is held on trust for her and seeks orders requiring the transfer of property to her – where the first respondent defendant is the daughter of the applicant plaintiff – where the second respondent defendant is the carer and guardian of the first respondent defendant – where the mother and daughter have been living together until 29 April 2022 at which point the daughter moved to live with the guardian nearby – where the guardian issued a notice to vacate to the plaintiff by 1 August 2022 – where the mother has applied for an injunction restraining the guardian from evicting her until trial or further order – whether there is a serious issue to be tried – where the balance of convenience lies
COUNSEL: C Ryall for applicant plaintiff
M Jonsson KC for respondent second defendant
SOLICITORS: Astley Associates for applicant plaintiff
The Will and All for the respondent second defendant
The applicant is a plaintiff in a claim seeking a declaration that a residential property at 4 Anne Street, Smithfield is held on trust for her and seeking an order for the performance of the trust requiring the defendants to transfer the property to her. She has applied for an injunction restraining the second defendant to the claim from evicting her until trial or further order.
It is alleged the applicant and her husband paid for the purchase of the land at 4 Anne Street in the name of their daughter, the first defendant, and also paid for construction of the house upon it many years ago. As much was allegedly acknowledged in a deed of trust of 14 December 1988 and a further declaration of trust on 31 January 1989 by which the daughter declared she held the property on trust for her parents. With her father’s death, the mother, the applicant plaintiff, allegedly became the sole beneficial owner of the property.
The daughter’s mental health declined and, by 2012, a guardian, the second respondent, was appointed. The guardian evidently resides nearby at 5 Anne Street, which became registered in her name in circumstances that are apparently in dispute in another proceeding. It is alleged the guardian is a paid carer and that her appointment ended by 19 June 2015. The guardian deposes that she was re-appointed on 4 October 2018. The mother’s amended statement of claim in this proceeding seeks a declaration that the guardian’s appointment ended on 19 June 2015. An application for review of the guardian’s appointment is also before QCAT.
The mother and daughter had long been living together at 4 Anne Street, until 29 April 2022 when the daughter moved to live with the guardian at 5 Anne Street. The affidavit material alleges that on 29 April the mother told the daughter to leave and not return. Reports procured by the guardian suggest it is in the daughter’s interests to return to 4 Anne Street where she has always lived, particularly to better recuperate from a recent operation. It is likewise opined that it is not in the daughter’s interests for her mother to remain at 4 Anne Street because of the problematic state of their relationship. Whether the authors of those reports rely upon information in expressing their views which is one-sided is of some concern in circumstances where the mother deposes they did not consult her.
On 31 May 2022 the guardian issued a notice to vacate to the plaintiff by 1 August 2022. Undertakings had been given by the guardian not to initiate proceedings to recover possession of the premises pending the disposition of this application.
Whether there is a serious issue to be tried and where the balance of convenience lies are both in issue in the application.
As to whether there is a serious issue to be tried, the plaintiff submits there is clear evidence in support of her claim for primary relief. That evidence consists of the deed of trust signed by the daughter on 14 December 1988 and the declaration of trust signed by the daughter on 31 January 1989. The deed of trust provides:
“DEED OF TRUST
I JOVANKA (Joan) ERCEG 5 Cambrian Avenue Smithfield declare that I hold the property at 4 Anne Street Smithfield on trust for my parents Eric and Mary Erceg jointly.
My parents had promised me I can keep any rental income that they will help me with expenses and that I can live there as long as I wish.
If I die before both my parents die they can do as they wish but if I have a child they promise to leave the house at No 4 to that child and look after it as best they can.”
The declaration of trust provides:
“DECLARATION OF TRUST
I JOVANKA ERCEG also known as JOAN ERCEG 5 Cambrian Avenue Smithfield in the State of QUEENSLAND hereby acknowledge that my parents Jlijan Erceg and Marianne Erceg have provided the sum of thirty-five thousand dollars ($35000) for the purchase of the land at 4 Anne Street SMITHFIELD being lot 128 on registered plan 729934 registered in my name on 6th June 1988 and further provided the sum of thirty-six thousand five hundred and fourteen dollars ($36514) for the construction of a dwellinghouse upon the said land and I hereby declare that I hold the said land and improvements upon trust for my said parents as joint tenants.”
The mother contends the declaration of trust contained in the deed and repeated in the declaration evidence that the daughter is bare trustee of a trust in favour of the mother and she therefore has an obligation to transfer the property to the mother upon request that she do so. In support of that obligation her counsel cites Byrnes v Kendle[1], including the citing by French CJ of this passage in Lewin on Trusts[2]:
“A bare trustee, holding property for a single beneficiary who is absolutely indefeasibly entitled, has traditionally been said to be a mere passive repository, owing a duty only to transfer the property to the beneficiary or at his direction.”[3]
[1](2011) 243 CLR 253.
[2](Sweet & Maxwell Ltd, 18th ed, 2008) 1215 [34-03].
[3]Byrnes v Kendle (2011) 243 CLR 253, 264.
On the other hand, counsel for the guardian contends the presence of the second and third paragraphs in the deed of trust evidence more than a mere bare trust and demonstrate that such equitable interest as is held by the mother is not immediate but is postponed to the daughter’s prior right to possession over the balance of her lifetime. It is contended by the guardian that the provision the daughter might retain any rental income from the property and that she might live in the property for as long as she chooses to do so, manifests an objective intention to reserve to her what amounts, in substance, to a life interest in the subject property.
My present concern is not to finally determine the merits of the guardian’s construction argument, but rather to merely determine whether there is a triable issue. In the present context, that turns upon whether the construction urged by the guardian is the only viable construction or whether the countervailing construction contended for by the mother is reasonably arguable. Several considerations support the conclusion that the construction sought by the guardian is not the only viable arguable construction.
Firstly, the second document entitled, “Declaration of Trust”, contains no clause that has the potential to qualify the declaration therein stated that the daughter holds the property on trust for her parents.
Secondly, even if the declaration of trust document were held not to detract from the meaning of the deed of trust, effectively the same declaration is made in the first paragraph of the deed of trust. The two paragraphs following that declaration in the deed of trust are not expressly styled as qualifications or conditions upon the declaration made in, or the trust created by, the first paragraph.
Thirdly, the document is not in the nature of a contract signed by the parents in addition to the daughter, which also supports an argument that in the absence of the second and third paragraph being prefaced as express qualifications or conditions upon the declaration of trust, that they are only historic acknowledgments of the circumstances under which the declaration came to be made.
Such considerations readily demonstrate there are arguable competing constructions and there is therefore a serious issue to be tried.
Two points should be noted for completeness before departing this topic. Firstly, the guardian’s counsel contended that even if his construction argument was incorrect, then at the very least the second and third paragraphs of the deed ought be read as assuring the daughter a personal right or licence to reside in the land over the balance of her lifetime, being a personal right or licence enforceable in equity. However, even if that argument were correct, it does not follow from it that any right she may have to reside there would be to the exclusion of the mother.
Secondly, the mother’s amended statement of claim but not her claim seeks a declaration that the guardian is not at law the daughter’s guardian by reason of the operation of s 26 Guardianship and Administration Act2000 (Qld) and the evidence that the plaintiff has paid money to the guardian to provide personal care to the daughter in response to requests from the guardian for such payment. This apparently triable issue has relevance in the present context, albeit that it is not an issue bearing directly upon the mother’s right of occupation, for it is not apparent that some other properly appointed guardian would seek to evict the mother as the present one does. The conclusion that there is a triable issue, vis-à-vis the construction of the declaration of trust, makes it unnecessary to resolve whether it would be appropriate to have regard to this other potential triable issue in circumstances where the relief around which it revolves is sought in the statement of claim, but not in the claim itself.
It having been determined there is a serious issue to be tried, the more difficult question to determine is where the balance of convenience lies.
The guardian has laid on evidence exhibiting reports and other documents generated by professionals and carers who have had dealings with the daughter. Ann Greer is a positive behaviour support practitioner and has been working with the daughter since 2019. Ms Greer provided three reports, dated 4 April 2022, 8 May 2022 and 25 August 2022. Ms Greer gave evidence that support workers have been reporting verbal abuse from the mother towards the guardian and other support workers.[4] The third report described that the mother’s husband died in September 2020 and the mother’s condition and treatment towards the guardian has worsened significantly since then. Since the daughter has been staying with the guardian, Ms Greer has visited on at least three occasions and every time the daughter has not engaged deeply in the mother’s presence, on one occasion refusing the opportunity to visit.
[4]Affidavit of Ann Greer court doc 9, exhibit 1, p 4 (Letter 4 April 2022).
Nia Barnes is a psychologist and neurofeedback therapist and the principal of Mind Matters, a private psychology practice. In her report dated 11 May 2022, she stated that she has been working with the daughter since April 2021.[5] The report states that during an appointment on 29 April 2022, the daughter told her that her mother had kicked her out of her home, and that the daughter was anxious about the prospect of not being able to return home. The report states:
“She has since been living with her guardian who reports that [the daughter] has become withdrawn (consistent with her presentation during our appointment) and has regressed to the point where she is bedwetting. [The daughter] needs to be in her own environment to prevent further mental health issues.”[6]
[5]Affidavit of Nia Barnes court doc 15, exhibit 1, p 1 (Letter 11 May 2022).
[6]Affidavit of Nia Barnes court doc 15, exhibit 1, p 1 (Letter 11 May 2022).
The crux of the second report dated 24 August 2022 was that the daughter’s condition has improved since not living with her mother, and the daughter has no desire to communicate or visit with her mother.
Kathryn Britt is an NDIS support coordinator and has been working with the daughter since 2018. Ms Britt provided three reports to the court in her affidavit.[7] The first, dated 5 April 2022, outlined that there have been reports that the mother has been speaking negatively about the guardian and other support workers and this has been negatively impacting the daughter. It was also believed that the mother was not administering the daughter’s medication correctly. The report stated that in early 2021 the mother spoke to the daughter in front of support staff of her intention to move to a nursing home in Mareeba, and this distressed the daughter. The mother has also called and threatened to call the police on the guardian which has distressed the daughter. The guardian reported that in April 2022 the daughter ran across the street not wanting to return home. A later report dated 10 May 2022 was made because the guardian reported the mother screamed at her and the daughter and told them to get out of the house. The daughter had surgery in late July 2022 and cannot move back to the house of the guardian where she has been living since 10 May 2022.[8] Dr John Nguyen confirmed the daughter was admitted on 28 July 2022 for an operation.[9] Ms Britt gave the opinion that the daughter cannot move back to the guardian’s home, and it is in the daughter’s best interests to return to the daughter’s home without the presence of the mother.
[7]Affidavit of Kathryn Britt court doc 11, exhibit 1.
[8]Affidavit of Kathryn Britt court doc 11, exhibit 1 p 6 (Letter 25 August 2022).
[9]Affidavit of Dr John Nguyen court doc 10, p 1 [2].
That evidence gives potential insight into why the guardian seeks to evict the mother. It is important to appreciate however, with due respect to the sources of the evidence, that they are concerned solely with the daughter’s interests. On the mother’s evidence, she was not interviewed or consulted by those who have expressed adverse views regarding her interactions with her daughter. The mother denies that she has emotionally abused or manipulated her daughter or verbally abused or lied to her or spoken negatively towards her.
The mother deposes, inter alia, at:
“8. I have lived with my daughter nearly all her life and I know her very well and despite suffering verbal and physical abuse by my daughter have had a loving, kind and caring relationship with her. I’ve cared for her for most of her life. I’ve recently made a new will which leaves my entire estate to my said daughter to be held by suitable trustees and applied solely for her benefit and welfare.
9. If qualified professionals provided opinions to me based upon their own enquiries and not upon information provided solely or mainly by the second defendant that it would be best for Joan to live separately from me then I would follow that advice.”[10]
[10]Affidavit of Marianne Erceg Court doc 14.
The mother goes on to depose, in apparent reference to a separate proceeding where she is seeking to recover ownership of 5 Anne Street from the guardian:
“If I recover my home at 5 Anne Street and Joan was able to live on her own Joan could live in 4 Anne Street and I could live across the road from her.”[11]
[11]Affidavit of Marianne Erceg Court doc 14 [9].
In addition, she undertakes through her counsel in this application to allow her daughter to reside at 4 Anne Street.
It is tolerably clear it would be convenient and cost effective from the guardian’s point of view if the daughter could be returned to living at 4 Anne Street without her mother still living there. It remains that the mother, if she continues to live at 4 Anne Street, is also willing to let her daughter live there. If the guardian prefers that the daughter not live with the mother, it is open to the guardian to make arrangements, as the guardian has evidently been doing since April, for the daughter to be living elsewhere.
In contrast the mother, who is 86 years old, does not have the support of a guardian to assist her with arrangements. It is a distinction telling against disturbing the status quo and displacing the mother from continuing to reside at the property.
While the equation is relatively finely balanced, the balance of convenience favours allowing the mother’s continued occupation, upon her undertaking, given at the hearing, as to damages and that she will permit her daughter to reside at 4 Ann Street. It will be a matter for her guardian whether she elects to take up that opportunity again.
While the above conclusions mean the application should be granted, the mother’s counsel accepts it is appropriate in an application of this kind that costs be reserved. It is also appropriate, given the nature of the relief, to order liberty to apply.
My order is:
Upon the plaintiff having given the usual undertaking as to damages and undertaken to permit the first defendant to reside at the premises described in order 1 below it is ordered:
1.The second defendant by herself, her servants or agents is restrained until the determination of the trial or further order from taking any step to evict the plaintiff from the house and land at 4 Anne Street, Smithfield being Lot 128 on Registered Plan 729934 subject to title reference 1009136.
2.Liberty to apply on the giving of two business days notice in writing.
3.Costs reserved.
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