Port v Alexopoulos (No 2)
[2011] TASSC 37
•25 July 2011
[2011] TASSC 37
COURT: SUPREME COURT OF TASMANIA
CITATION: Port v Alexopoulos (No 2) [2011] TASSC 37
PORT, Draga by her lawful attorney
TASMANIAN PERPETUAL TRUSTEES LIMITED
(ABN 97 009 475 629)
v
ALEXOPOULOS, Dina Louise
FILE NO: 79/2010
JUDGMENT
APPEALED FROM: Port v Alexopoulos [2011] TASSC 8
DELIVERED ON: 25 July 2011
DELIVERED AT: Hobart
HEARING DATES: 18 July 2011
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Practice under rules of court – Summary judgment – Leave to defend – No viable prospect of the claim being successfully defended demonstrated.
Aust Dig Procedure [270]
Australia & New Zealand Banking Group Ltd v Barry [1992] 2 Qd R 12; Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; Agar v Hyde (2000) 201 CLR 552; Spencer v Commonwealth (2010) 241 CLR 118, applied.
REPRESENTATION:
Counsel:
Plaintiff/Respondent: D F M Zeeman
Defendant/Plaintiff: In person
Solicitors:
Plaintiff/Respondent: Butler McIntyre & Butler
Defendant/Plaintiff: In person
Judgment Number: [2011] TASSC 37
Number of paragraphs: 25
Serial No 37/2011
File No 79/2010
DRAGA PORT by her lawful attorney TASMANIAN PERPETUAL
TRUSTEES LIMITED (ABN 97 009 475 629)
v DINA LOUISE ALEXOPOULOS
REASONS FOR JUDGMENT CRAWFORD CJ
25 July 2011
In this action it was ordered by Holt AsJ that there be summary judgment for the plaintiff, Mrs Port, against the defendant, Ms Alexopoulos, for possession of the plaintiff's house and land in Sandy Bay together with certain costs. The defendant appealed against the orders.
Summary judgment should only be ordered if there is no reasonable doubt that the plaintiff is entitled to judgment. Jones v Stone [1894] AC 122 at 124. The plaintiff must show a clear case against the defendant which the latter cannot possibly answer. Roberts v Plant [1895] 1 QB 597 at 603. It must be clear there is no real question to be tried. Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. Another way of expressing it is that there must be a high degree of certainty about the outcome of the proceedings being adverse to the defendant. Agar v Hyde (2000) 201 CLR 552 at par[57]. There is little distinction between those approaches. Spencer v Commonwealth (2010) 241 CLR 118 at par[24].
However, in the usual case all the plaintiff has to do is to support the application for summary judgment with an affidavit verifying the facts on which the claim is based and stating that in the deponent's belief there is no defence to the claim. Supreme Court Rules 2000, r357(1). Once the plaintiff has complied with that rule, it is up to the defendant to show cause why the summary judgment should not be ordered.
As argued, the appeal does not raise the need for the plaintiff to comply with r357(1). Although there were several grounds in the notice of appeal, by the conclusion of the hearing, she maintained only one. It was that the Associate Judge erred in law in finding that grounds for summary judgment were made out when in fact the evidence did not disclose any basis for that finding. That ground was restricted by the defendant's oral submissions to an argument that the Associate Judge erred by failing to conclude that the evidence disclosed an arguable defence. I will confine my reasons to that question
In that connection, the rule has been stated to be that a judge should not make an order for summary judgment unless fully persuaded that there is no real question to be tried, that is, that there are no facts shown such as would lead to an inference that at a trial of the action the defendant might be able to establish a defence to the plaintiff's claim. Australia & New Zealand Banking Group Ltd v Barry [1992] 2 Qd R 12 at 14. A complete defence does not have to be shown. Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122 at 133. That a defence to the claim is arguable is all that is usually needed to be established by the evidence.
There are many facts that are not disputed.
The plaintiff is an elderly widow. Since 2004 she has been suffering from dementia and has been incapable of managing her affairs. Since that time, Tasmanian Perpetual Trustees Ltd ("the attorney") has managed her estate under an enduring power of attorney executed in 2003. She has considerable assets.
In January 2005 the plaintiff's only son and the defendant, who was his de facto spouse, took rent-free possession of the Sandy Bay residence. The attorney consented to that. Prior to then, they had been living in another of the plaintiff's houses in Hobart.
In 2007 the couple separated and the plaintiff's son moved out of the house. Proceedings were commenced between them under the Relationships Act 2003 for a property settlement. In October 2008 the couple agreed upon a settlement under which the defendant would remain in occupation of the residence until 2017, when their daughter would turn 21 years of age. There were other aspects of the agreement that are not material to the outcome of the appeal. They sought an order in terms of the agreement. However an order giving the defendant possession of the residence was refused as the court had no authority under the Relationships Act to deal with the plaintiff's house.
The attorney was asked to consent or otherwise enter into an agreement, in the name of the plaintiff, giving to the defendant the right to occupy the residence until 2017. The attorney sought the advice of the Guardianship and Administration Board under the Powers of Attorney Act 2000, s33(2)(g). On 19 February 2009 the Board advised that the attorney could make for itself any decisions regarding the defendant's tenancy. Subsequently, the attorney decided not to consent or submit to a relevant order under the Relationships Act and not to enter into an agreement giving the defendant a right to reside until 2017.
On 4 February 2010 the attorney issued a notice requiring the defendant to give vacant possession of the residence by 12 February 2010. The defendant failed to comply. As a result, this action was commenced by the attorney in the plaintiff's name, seeking recovery of possession. Subsequently, summary judgment was sought.
As amended the statement of claim alleges that the defendant took possession of the residence as a tenant-at-will and that the tenancy was terminated by the notice of 4 February 2010. The defence denies those matters. Its eight paragraphs either do not admit or deny allegations in the statement of claim. It pleads no facts, makes no counterclaim and makes no positive assertion of a right to occupation.
At the hearing of the application before the Associate Judge, the defendant was represented by counsel. Three affidavits of a senior officer of the attorney, Mr Clifford, were read and he was cross-examined extensively. Also read was an affidavit of the defendant. No application was made to cross-examine her, and during the hearing the Associate Judge noted that usually it would not be allowed on the hearing of an application for summary judgment.
In his submissions to the Associate Judge, the defendant's counsel argued that the defendant had a defence to the claim for possession based on protection of her tenancy under the Residential Tenancy Act 1997. It was submitted that the notice determining the tenancy did not comply with the requirements of the Act. The Associate Judge rejected the argument, concluding that the defendant's occupancy was not subject to the provisions of the Act. The rejection of that argument was not attacked by the appeal.
It was argued for the defendant to the Associate Judge, that the evidence disclosed an arguable case that in return for value she had been given a right of occupancy until 2017. Concerning evidence of that, reliance was placed on par6 of the defendant's affidavit:
"Our residence in the property and the Macquarie Street property was against the backdrop of in the sixteen years that Tony and I were together as a couple. Tony was the only child of Draga Port. Tony's father had died when he was nine years of age and Tony's belief was that he was to assist his mother in the management of her estate which consisted of a number of residential rental properties and a number of farms the [sic] he would inherit and that they would be our properties at that time. We sent [sic] our time together maintaining the houses and farms owned by Draga Port and did not accumulate and [sic] property in our own name as we assumed that on the death of Draga Port we would inherit the properties that she owned and we had helped maintain."
The Associate Judge held that the paragraph did not disclose the existence of an agreement whereby occupancy was conditional upon the provision of household maintenance. Further, he found it consistent with the plaintiff's son and the defendant maintaining the residence to protect the inheritance which the plaintiff's son expected to receive.
The conclusions of his Honour were correct. Nothing was asserted in the affidavit that could give rise to a finding that there may have been an agreement or understanding with the plaintiff or her attorney for a tenancy or occupancy for value. Paragraph 6 was couched simply with reference to expectations of the defendant and the plaintiff's son.
Counsel for the plaintiff pointed out that it was not argued to the Associate Judge that the plaintiff was estopped from asserting that the defendant had no continued right of occupancy, nor was it claimed that her occupancy was protected by some form of constructive trust pursuant to the principles discussed in Baumgartner v Baumgartner (1987) 164 CLR 137.
On the hearing of the appeal, the plaintiff was represented by counsel initially, and her counsel did raise an argument that the evidence raised the possibility that the defendant was entitled to a right to occupancy pursuant to what she referred to as a resulting trust under Baumgartner's case. As counsel was having difficulty presenting her argument, she withdrew from the case and the defendant presented her own case without legal assistance. In the course of doing so, she expressly disclaimed any reliance on a trust. All she wanted was a right of occupancy until her daughter turned 21.
At its strongest for the defendant, there was evidence that the attorney permitted the plaintiff's son and the defendant to live in the plaintiff's residence until the notice to give up possession was issued. Nothing was asserted in the defendant's affidavit to the effect that she or the plaintiff's son agreed with the attorney that in return for them being granted occupancy they would carry out work on the residence or any other property of the plaintiff.
Before the Associate Judge, counsel for the defendant also relied on pars14 – 17 of her affidavit as disclosing an arguable case that she did have a right of occupancy until 2017. Those paragraphs stated:
"14 Mr Clifford advised that TPTL was content with an order or an agreement that I reside in the property until 15 January 2017 being the day of Sarah's twenty first birthday as it was the intention of Draga Port to house her family which included her granddaughter Sarah. Notwithstanding TPTL's consent to the arrangement TPTL took the view that the Power of Attorney which had been granted to them did not give them the power to enter into an agreement for that to occur and TPTL would need an order of the Guardianship and Administration Board ('the Board') to clarify whether they had the power.
15 Given the advice of TPTL Tony, through his solicitor made an application to the Board seeking an order which would determine TPTL had the power to agree within the agreement reached in the Relationship Act proceedings. The nature of the application was to seek an order that TPTL had the power to permit Sarah and I to continue to reside in the property.
16 A hearing was held before the Board and I attended that hearing. Annexed here and marked 'C' is a copy of the order made by the Board advising that TPTL had the power to approve Sarah and I residing in the property until 15 January 2017.
17 At the hearing before the Board Mr Clifford on behalf of TPTL agreed that Draga Port had historically expressed an intention to house her family in the property and that we had lived in the Macquarie Street property with consent of Draga Port but Tony, Sarah and I moved into the property because the Macquarie Street property which we were occupying was deemed a danger due to electrical faults and that TPTL was content to continue this agreement. TPTL would like the matter settled for the benefit of the parties and that TPTL did not oppose what was being requested by the parties. At the hearing Mr Clifford primarily expressed the view that Senior Management of TPTL had determined that they did not have the power to grant what was requested by the parties and that they were seeking the Board to clarify or settle what was being asked but did not oppose what was being requested."
The Associate Judge held that those paragraphs did not disclose an arguable case that the defendant had a right of occupancy until 2017. Even if Mr Clifford, acting on behalf of the attorney, gave advice that the attorney was content to submit to an order, or enter into an agreement to that effect, there is no evidence that the attorney did either of those things. As the Associate Judge held, absent an order or agreement, the claimed right to occupy until 2017 was not sustainable. There was no evidence of such an order or agreement, certainly not a contractually binding one.
At the hearing of the appeal, the defendant, and while she was represented, her counsel, appeared to submit that even if the evidence in her affidavit did not establish an arguable defence, nevertheless there was plenty of evidence available. Her counsel said that she was instructed there was more to it than was stated in the affidavit. The defendant personally submitted that there was more to the case than might be thought, and that people knew it. She said she had a suitcase of evidence. She made several references to statements made to her by the plaintiff's son concerning the future. There is no reason to think they bound the plaintiff.
To succeed with the appeal, the defendant has to demonstrate that on the evidence before the Associate Judge, and having regard to the arguments advanced to him, error occurred when the order for summary judgment was made. She has not demonstrated that. No arguable defence was revealed.
It will be ordered that the appeal is dismissed and that the defendant pay the plaintiff's costs of it, to be taxed. There will be a certificate for counsel.
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