Georgiou v Georgiou

[2024] NSWSC 521

Supreme Court

New South Wales

Medium Neutral Citation:

Georgiou v Georgiou [2024] NSWSC 521

Hearing dates:

02 May 2024

Date of orders:

02 May 2024

Decision date:

02 May 2024

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

(1)   I dismiss the defendant’s Notice of Motion.

(2)   The defendant is to pay the plaintiff’s costs.

Catchwords:

CIVIL PROCEDURE – possession – application for stay of possession – application dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Category:

Procedural rulings

Parties:

Yana Georgiou (Plaintiff)
Nicholas Georgiou (Defendant)

Representation:

Counsel:
L Katsinas (Plaintiff)
Defendant in person

Solicitors:
Alan Rigas Solicitors (Plaintiff)

File Number(s):

2023/341565

Publication restriction:

Nil

JUDGMENT – duty – ex tempore (revised)

1. In this matter, Mr Nicholas Georgiou (the defendant) filed a Notice of Motion seeking orders:

1. That the claim to possession of land is paused until the following matters are resolved:

1. NCAT and New South Wales Public Trustee review of independent financial audit of my mother’s affairs;

2. NCAT and New South Wales Public Trustee review of independent financial review and financial planning of my mother’s affairs to determine the best long‑term strategy for her financial affairs;

3. New South Wales Public Trustee establishment of a trust based financial management system to ensure appropriate use of funds;

4. NCAT and New South Wales Public Trustee review of application for sole financial management;

5. NCAT and New South Wales Public Trustee review of application of joint financial management;

6. Cyprus legal proceedings against the plaintiff are resolved;

7. My mental health has improved;

8. My employment status has improved.

2. That he not be held responsible for the plaintiff’s legal costs as he always and continues to offer to sort the matter out privately or alternatively through mediation to avoid legal costs of both parties.

2. I observe that Mr Georgiou’s notice of motion appears to seek a stay of a judgment for possession of real property, situated at and known as, 44A Hillcrest Avenue, Hurstville, NSW 2220 (the Property). An order for possession was made on 5 March 2024 in favour of Yana Georgiou (the plaintiff). On that day, costs were awarded in her favour in the sum of $2,787. Both the plaintiff and the defendant are the children of Stavouria Georgiou. Mr Georgiou has resided in the Property for many years.

3. A short history of the matter is as follows: on or about 27 May 2021, the New South Wales Civil and Administrative Tribunal (NCAT) appointed the plaintiff as the guardian and financial manager of her mother, Stavouria Georgiou. Guardianship did not last very long, but the plaintiff has continued as the financial manager of her mother to this day.

4. In about November 2020, Stavouria Georgiou was placed in a care facility due to her deteriorating medical condition. Mr Georgiou continued to reside in the Property. At the end of 2021 or early 2022, Stavouria Georgia moved to Cyprus to live with her daughter, where she has remained. In or about October 2021, the plaintiff, through a licensed real estate agent, served a notice to vacate the Property on the defendant, so that the Property could be sold. There is a significant mortgage on the Property in favour of St George Bank.

5. On 24 February 2022, an application was made by the plaintiff’s father, who has long been divorced from the plaintiff’s mother, to have the plaintiff removed as her mother’s financial manager. Proceedings were commenced in NCAT. The defendant actively participated in those proceedings with the assistance of a lawyer.

6. In March 2022, the plaintiff wrote to the defendant, again requesting that he vacate the Property so that it could be sold. On 20 October 2022, NCAT confirmed the plaintiff’s appointment as the financial manager of Stavouria Georgiou. On 25 October 2022, the New South Wales Trustee and Guardian approved the sale of the Property. On or about 5 December 2022, the defendant sought an internal review of the New South Wales Trustee and Guardian’s decision approving the sale of the Property. On 1 February 2023, the New South Wales Trustee and Guardian concluded the review and affirmed the original decision with respect to the sale of the Property.

7. On or about 14 June 2023, the plaintiff wrote to the defendant requesting that he vacate the Property. On 27 October 2023, the plaintiff commenced proceedings seeking judgment for possession of the Property and costs. As I have said, orders were made on 5 March 2024 giving possession of the property to the plaintiff.

8. I observe that there is a notice of motion, filed by the plaintiff on 13 March 2024, seeking leave to issue a writ of possession of the Property. That motion has yet to be listed. The defendant has not sought to set aside the judgment of 5 March 2024.

9. The plaintiff relies on one affidavit which appears to have been sworn on 14 March 2024 and which was filed on 15 March 2024. In that document he deposes that he still resides in the Property, that he is unemployed and that he will be homeless if he is forced to leave his home.

10. The defendant makes allegations against the plaintiff with respect to her conduct as financial manager. I observe that these complaints are materially identical to the complaints which were ventilated in NCAT in October 2022.

11. The defendant also tendered two documents. Exhibit 1 is an application to review or revoke a financial management order on the basis of the defendant’s belief that his sister is not responsibly managing his mother’s affairs. I observe that there is an email attaching theapplication to review or revoke a financial management order and a letter of complaint to NCAT which was sent on 1 May 2024, being yesterday. Exhibit 2 is what I presume to be the letter of complaint which was attached to the defendant’s email to NCAT of 1 May 2024. It is addressed to the Executive Support Team at the New South Wales Trustee and Guardian and is dated 15 April 2024. It lists seven complaints, as follows:

1. The plaintiff is non-compliant with her obligations as financial manager;

2. The New South Wales Trustee and Guardian is failing in its oversight over the performance of the defendant’s sister as private manager;

3. There should be an independent audit and review of the estate and accounts;

4. There should be a temporary injunction on the sale of the Property to allow for a renovation of the Property, including maintenance and repairs;

5. There should be a rental appraisal of the Property and a reassessment of his mother’s financial position;

6. The proceeds of rental income and the sale of the Property should be temporarily held in the Public Trustee’s office; and

7. The defendant should be appointed as a joint private manager with his sister.

12. There are approximately 35 pages detailing these complaints.

13. The defendant relies on two affidavits, the second of which is annexed to the affidavit of Mr Alan Rigas, the solicitor for the plaintiff, which was sworn on 29 April 2024. The second affidavit is of the plaintiff in these proceedings, which was sworn on 24 October 2023 and which annexes several documents.

14. The affidavit of Mr Rigas sets out the procedural history of these proceedings. He notes that he is the solicitor who has had the day to day carriage of the matter since obtaining the plaintiff’s instructions in early 2022. As such, he has a good general knowledge of the matter and the related NCAT proceedings.

15. The affidavit of the plaintiff dated 24 October 2023 annexes documents including NCAT orders on 27 May 2021, an apprehended violence order concerning the defendant and his mother which has since expired, her appointments as guardian and financial manager, the decision of NCAT on 20 October 2022 and review documents of the New South Wales Trustee and Guardian.

16. The decision of NCAT (Guardianship Division) of Senior Member R H Booby demonstrates that whilst the application seeking a review of the financial management order was made by the plaintiff’s and defendant’s father, the defendant participated in a meaningful way in those proceedings and made allegations against the plaintiff that are substantially similar to the allegations that are made in proceedings today.

17. The Senior Member expressly found that the evidence before him in October 2022 indicated that the plaintiff had demonstrated an understanding of her mother’s affairs and a resolve to achieve an outcome that was in her mother’s best interests, and that she had appropriately obtained the consent of the New South Wales Trustee and Guardian to sell the Property.

18. Furthermore, the Senior Member was not satisfied that the evidence established that the plaintiff had ever failed to act in the best financial interests of her mother or that she had ever acted contrary to those interests. He was not satisfied that the plaintiff was unable to perform the role of financial manager. He was satisfied that the plaintiff’s and defendant’s mother would benefit from having a financial manager who is with her in Cyprus, and who could understand and provide for her needs whilst dealing with property matters in Australia.

19. Indeed, in the Senior Member’s view, the plaintiff was in the best position to undertake the role of financial manager and he was not satisfied that it would be in the best interests of the plaintiff’s and defendant’s mother to revoke the appointment of the plaintiff. He therefore dismissed the application. There was no appeal from that decision.

20. The applicant on this motion submitted that if he is able to attend to those matters that are set out in prayer 1 of the notice of motion, then a different result may eventuate. In other words, if the judgment is paused or stayed, either NCAT or the NSW Trustee and Guardian may revoke the financial management order. I observe that the arguments about the financial management of the plaintiff’s and defendant’s mother have now gone on for three years.

21. The respondent to the motion says that all the matters complained about have been raised before, which is evident from the detailed judgment of Mr Booby of 20 October 2022. She observes that the defendant has only sought a review of the financial management order and made a complaint to the NSW Trustee and Guardian yesterday, and only after judgment was given in his sister’s favour.

22. I observe that I have the power to stay the judgment pursuant to s 67 of the Civil Procedure Act, but to exercise that power, I would have to be satisfied that there is a sufficient basis to do so, taking into account that there is no suggestion that the judgment was not properly entered in the first instance.

23. In my view, it is inevitable that the applicant will have to vacate the premises, bearing in mind that the financial management of the plaintiff’s and defendant’s mother is overseen so closely by the New South Wales Public Trustee, who consents to the sale of the Property. In the meantime the defendant is free to pursue his complaints to NCAT and the NSW Trustee and Guardian. In all of the circumstances, I dismiss the defendant’s notice of motion. I make the following orders:

1. I dismiss the defendant’s Notice of Motion.

2. The defendant is to pay the plaintiff’s costs.

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Decision last updated: 03 May 2024