J v J - [2015] NSWSC 1984

Supreme Court

New South Wales

Medium Neutral Citation: J v J [2015] NSWSC 1984
Hearing dates: 10, 11, 21, 22 and 23 December 2015
Date of orders: 23 December 2015
Decision date: 23 December 2015
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
(1) Declaration that plaintiff has no right, title or interest in family home.
(2) Consequential orders for withdrawal of the plaintiff's caveat, delivery up of vacant possession and sale of property.
(3) Protected estate Management Orders made to commit management of the affairs of the first and second defendants to the NSW Trustee.

Catchwords:
PROTECTIVE JURISDICTION – Incapacity for self-management – Power of attorney – Financial management – Management of estate – Appointment of NSW Trustee and Guardian
PROPERTY – Equitable estoppel – Whether daughter of protected persons has any interest in family home – Failure to prove promise made
Legislation Cited: NSW Trustee and Guardian Act 2009 (NSW)
Supreme Court Act 1970 (NSW)
Category: Principal judgment
Parties: LJ, Daughter of Incapable Persons (Plaintiff)
WJ, Incapable Person (First Defendant)
AJ, Incapable Person (Second Defendant)
GJ, Son of Incapable Persons (Third Defendant)
MJ, Daughter of Incapable Persons (Fourth Defendant)
Representation:
Counsel:
D K Raphael (Plaintiff), 10–22 December 2015
Plaintiff in person, 22-23 December 2015
C Alexander (Defendants), 10-22 December 2015
P Beazley (Defendants), 23 December 2015
Solicitors:
Penhall & Co (Plaintiff), 10–22 December 2015
Beazley Boorman Lawyers (Defendants)

File Number(s): 2015/298011

Judgment (EX TEMPORE)

The proceedings before the Court involve concentric circles of disputation within a family comprising elderly parents presently resident in an aged care facility (the first and second defendants) and four adult children, three of whom (the plaintiff, the third defendant and the fourth defendant) have been actively involved in the proceedings to date. For the time being at least, the fourth child has remained above the fray. He is not a party to these proceedings.
The third and fourth defendants have represented the first and second defendants in the proceedings. They hold an enduring power of attorney from the first defendant. They have been appointed financial managers of the second defendant by subsisting orders of the Guardianship Division of the Civil and Administrative Tribunal of NSW (NCAT). They were joined in the proceedings by the plaintiff in order to represent the first and second defendants pursuant to those appointments. With their consent, and with no opposition from the plaintiff, I made orders formally appointing them as tutors of the first and second defendants for the purpose of the proceedings. They remain parties in their personal capacities, but their joinder in the proceedings in those capacities is not necessary for a determination of the question to be determined by this judgment.
The present judgment is narrowly focused upon a determination of the question whether the plaintiff, a resident of the family home since July 2006, has an equitable life estate in that property (owned by the parents as joint tenants), or an entitlement to equitable compensation, in the event she is required to leave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 1984
Decision Date: 23 December 2015

CaseChat Overview and Summary

The case of J v J involved a dispute between the parents of a woman with intellectual disabilities and her daughter. The parents sought to have a power of attorney executed, and for the daughter to be removed from the family home. The daughter opposed the application. The dispute was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the parents had the necessary capacity to execute a power of attorney, whether the daughter had any interest in the family home, and whether the daughter should be removed from the home. The court considered whether the parents had the necessary capacity to execute a power of attorney, and whether the daughter had any equitable interest in the family home. The court found that the parents did have the necessary capacity to execute a power of attorney, and that the daughter had failed to prove that a promise was made that would result in her having an interest in the family home. The court also found that the daughter should not be removed from the family home.

The court's reasoning was based on the evidence presented and the applicable law. The court found that the parents had the necessary capacity to execute a power of attorney, as they were able to understand the nature and effect of the document. The court also found that the daughter had failed to prove that a promise was made that would result in her having an interest in the family home, as there was no evidence of a clear and unequivocal promise. The court found that the daughter should not be removed from the family home, as it was in her best interests to remain there.

The final orders made by the court were that the parents were appointed as attorneys for the protected person, and that the daughter was not removed from the family home. The court also ordered that the NSW Trustee and Guardian be appointed as the protected person's financial manager and estate manager.

Orders