Love by her tutor the NSW Trustee and Guardian v Love

[2019] NSWSC 1746

Supreme Court

New South Wales

Medium Neutral Citation:	Love by her tutor the NSW Trustee and Guardian v Love [2019] NSWSC 1746
Hearing dates:	2–3 December 2019
Date of orders:	03 December 2019
Decision date:	03 December 2019
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	(1)   The defendant’s application is dismissed. (2)   The defendant pay the plaintiff’s costs of the motion.
Catchwords:	JUDGMENTS AND ORDERS — enforcement — suspending operation — application for stay of execution of writ of possession of land
Cases Cited:	Bernhardt v Bernhardt [2019] NSWSC 1632
Category:	Principal judgment
Parties:	Malcolm Love (Applicant/Defendant) Carol Love (by her tutor the NSW Trustee and Guardian) (Respondent/Plaintiff)
Representation:	Solicitors: Zucker Legal (Respondent/Plaintiff)   Applicant/Defendant (self-represented)
File Number(s):	2019/52552
Publication restriction:	Nil

REVISED EX TEMPORE Judgment

1. The matter comes before the Court by way of a motion filed on an urgent basis by the defendant in the proceedings, Malcolm Love. Mr Love seeks orders setting aside a judgment for possession and other orders aimed at preventing the sherrif executing a Writ of possession on 4 December 2019.

2. The motion was filed on 29 November 2019. The matter first came before me yesterday, 2 December 2019, when Mr Love appeared in person. I asked the Court to telephone the solicitor on the record for the plaintiff, Mr Christopher Zucker. Mr Zucker was notified of the matter and the matter was stood over for hearing until today.

3. Mr Love appears on his application in person. Mr Zucker appears for the plaintiff.

4. Mr Love relies on his own affidavit, dated 29 November 2019. Annexed to that affidavit is an application to review or revoke a financial management order, dated 25 November 2019, which Mr Love says he has filed with NCAT as well as other documents, including a tax invoice from Service New South Wales, Road and Maritime documents, financial documents, electoral documents and medical records. There is also attached and marked with the letter “B” a document in typed form said to be terms of settlement, to which I will return.

5. In response, the plaintiff relies on an affidavit of Christopher Zucker, sworn 4 September 2019; and an affidavit of Jared James McCarthy, sworn 3 December 2019. I have had regard to the content of both of those affidavits.

6. Mr Love is currently living in a property owned by his mother, Carol Love. The financial estate of his mother is managed by the New South Wales Trustee and Guardian, pursuant to a financial management order made by the New South Wales Civil and Administrative Tribunal Guardianship Division.

7. Mrs Love is the owner of the land situated at 5 Nardie Street, Sapphire Beach in New South Wales, being the property where her son is living. Mrs Love resides in a nursing home, known as the Opal Aged Care Facility (“Opal”), at Coffs Harbour. She is currently 83. She has been living in the nursing home since 2017. She had previously resided in her own home with Mr Love and Mr Love's son being her grandson. She has advancing dementia. Mrs Love has another son, Robert Love, who is not involved in these proceedings.

8. Mrs Love is in the nursing home and is liable to pay fees to the operator of the nursing home. The fees which are currently owing are in the order of $63,000. They are in the nature of daily accommodation fees and daily care fees, which exceed her social security income.

9. It is also the position that Mrs Love has been assessed as liable for a refundable accommodation deposit in the sum of $450,000. Importantly, once that deposit is paid her daily rate will reduce, thereby reducing the cost burden to her of staying in the nursing home. Mrs Love has no means of paying the fees to the nursing home, other than through sale of her former home.

10. The New South Wales Trustee and Guardian, as her financial manager, wishes to sell her home in order to pay the fees owing to the operator of the nursing home where she is residing.

11. Although Mrs Love has advancing dementia, her life expectancy is unclear. It is not known whether she will survive a matter of weeks, months or even a year or two.

12. Mr Love does not wish to leave the property. He says that it is his home and he has nowhere else to live. In his affidavit and in submissions he refers to what he considers to have been the poor — using that word somewhat euphemistically — treatment of his mother in the nursing home. He says that he has made an application to NCAT to revoke the financial management order of the New South Wales Trustee and Guardian, apparently on the basis of their alleged mismanagement.

13. I understand from Mr Love's submissions that the basis of the application will be that the nursing home has treated his mother very poorly. Indeed, Mr Love would say that the treatment is worse than poor. He refers to discharge notes, which reveal that his mother has had a fall at the nursing home and suffered a fracture.

14. Mr Love also says that he is currently involved in some form of claim, which he is making on behalf of his family, against the operator of the nursing home and that at the current state of negotiations the nursing home is offering him $800,000 and he hopes to get the nursing home up to $1.2 million. I understand that he raises this on the basis that I might draw an inference as to the poor care of the nursing home. I also understand that the point may relate to Mr Love’s belief that the fees should not be paid.

15. In support of the proposition that he is engaged in negotiations with Opal, he directs my attention to a document annexed to his affidavit headed "Terms of Settlement". This is a document, which has been typed by up by someone which Mr Love says represents some form of agreement or proposed agreement between Mr Love and Opal.

16. I asked Mr Love whether there were solicitors involved in this case or whether there were any other documents. He said he had a front sheet or letter from the solicitor at home. It is not clear why he would not have included any correspondence from the solicitor in his affidavit. The document on which he relies is a typed up document without any letterhead or any other means of determining its validity or source. Mr Love says that Opal is willing to pay him such sums because of its treatment of his mother. Absent some other supporting documentation, I do not understand the basis on which it would be paying such sum to a person who has not been the subject of the allegedly poor treatment.

17. As I said to Mr Love at the outset, I am required to make orders on his application in accordance with the evidence adduced on the application. As I also said to Mr Love, I would not be making orders on the basis of the Court's sympathy for any position in which Mr Love finds himself. I raise this because Mr Love has sought to rely on evidence that might be viewed as more directed to persuading the Court to make or not make certain orders because of any sympathy that it might have for him; that is, that the Court should be approaching the matter on the basis that if the orders Mr Love seeks are not made then he will be required to leave his home.

18. The statement of claim, possession of land cover sheet and the notice to occupier were served on Mr Love on 22 February 2019. Default judgment was entered on 3 April 2019. On 12 April 2019, a writ of possession was issued. On 26 June 2019, possession was taken by the sheriff. On 28 June 2019, Walton J ordered that the writ be set aside and that Mr Love was to be given immediate possession of the property. Accordingly, on 29 June 2019 Mr Love resumed possession.

19. The application before Walton J proceeded on an ex parte basis in the sense that the plaintiff was not informed of the application and was not represented. Thereafter, Mr Love filed an application, including a notice of motion to set aside judgment. On 9 August 2019, the Court ordered that he file and serve an address for service and that he serve any affidavit evidence on which he relies, with further orders as to the further conduct of any application that Mr Love might wish to make in respect of setting aside the judgment.

20. On 6 September 2019, the motion to set aside the judgment was dismissed and leave was granted to issue the writ. The writ of possession was then issued on 14 October 2019.

21. The sheriff is due to enforce the writ tomorrow. The orders Mr Love seeks are that default judgment be set aside, that possession remain with him, that a new financial manager be appointed, that the tutor be removed and a new tutor be appointed and that the house remains the property of Mrs Love to facilitate her wishes to die at home.

22. The evidence adduced by Mr Love does not support his application. He has not put forward any evidence or made any submission based on proper legal principle as to why he should remain living in the house in circumstances in which the owner of the house (his mother through her financial manager) wishes to sell the house to pay fees owing to a nursing home where she currently resides. It may be that Mr Love has resided in the property for some time, indeed resided with his mother, and it may be that his son has lived with him for a period of time. However, he has no interest in the property. Even if he has some form of bare licence, it is revocable at will or on reasonable notice, and it has been revoked: see Bernhardt v Bernhardt [2019] NSWSC 1632 at [51].

23. On the evidence before me, Mrs Love is very unwell. She suffers from progressive dementia. Her mobility is deteriorated. She remains bedridden for large periods. She has emotional outbursts. She plainly requires high-level care. Mr Love says that she is not receiving the level of care required and asserts much worse about the conduct of the nursing home. He is entitled, if he wishes, to bring any application to remove the New South Wales Trustee and Guardian. However the New South Wales Trustee and Guardian remains the financial manager of Mrs Love, and on the evidence before me the only means of Mrs Love paying her fees is the sale of her house.

24. It is not necessary for me to make any findings on Mr Love's allegations as to some of the treatment by the nursing home. Nor is it necessary for me to make any findings on any allegations which Mr Love might make about the way in which Mrs Love's finances are being managed. All I can say is that there is no evidence before me which would justify any finding that the New South Wales Trustee and Guardian is not dealing properly with its financial management of Mrs Love's affairs.

25. There being no basis on which the judgment should be set aside, nor the writ of possession stayed, nor the tutor removed, nor any of the other orders sought made, the defendant’s application is dismissed.

26. The plaintiff seeks costs of the motion and agrees not to seek to enforce any costs order for six months. Mr Love opposes any order against him. There is no reason why costs should not follow the event.

27. I order that the defendant pay the plaintiff’s costs of the motion, noting that the plaintiff will not seek to enforce any cost order for six months.

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Decision last updated: 06 December 2019