Taunton v Taunton - [2020] NSWCA 197

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Taunton v Taunton [2020] NSWCA 197
Hearing dates: 26 August 2020
Date of orders: 26 August 2020
Decision date: 28 August 2020
Before: Basten JA; McCallum JA
Decision:
(1)   Refuse the application for leave to appeal and dismiss the summons in matter 2020/148465.
(2)   Dismiss the motion filed on 19 May 2020.
(3)   Make no order as to the costs in the proceedings in this Court.

Catchwords:
APPEALS – leave to appeal – orders for possession of real property – family dispute – property owned by father – order for possession obtained against defendant son in occupation – proceedings commenced by defendant’s brother under power of attorney – leave sought to challenge execution of power of attorney – issue not raised below – grounds not addressing correctness of the decision below – orders executed – only payment of costs order outstanding – futility of appeal
REAL PROPERTY – orders for possession – family dispute – property owned by father – order for possession obtained against son in occupation – son had been caring for father – possession sought to sell property to pay for nursing home fees – son alleged representation by father that he could remain in occupation during father’s life

Category: Procedural and other rulings
Parties: Daniel Clint Taunton (Applicant)
John Eric Taunton (Respondent)
Representation: Applicant self-represented
Gregory Taunton and Joanna Taunton as tutor for John Eric Taunton

File Number(s): 2020/148465
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2019] NSWSC 1513

Date of Decision:

4 November 2019

Before:

Slattery J

File Number(s):

2019/153609

Judgment

THE COURT: The applicant, Daniel Clint Taunton, has sought leave to appeal from a judgment of Slattery J in the Equity Division given on 4 November 2019. [1] At that time, the applicant was living in a home owned by his father at Wamberal on the Central Coast. His father, John Eric Taunton, had been admitted to a nursing home in May 2018. His affairs are being managed by the applicant’s brother, Gregory John Taunton and his wife, Joanna Taunton, pursuant to an enduring power of attorney executed by the father in 2010. The applicant is also party to the power of attorney, but his view as to his father’s needs may be (and is being) overridden by the majority view of his brother and Ms Joanna Taunton.
1. Taunton v Taunton [2019] NSWSC 1513 (“primary judgment”).
The applicant’s entitlement to remain in the home was the subject of the proceedings below, in which the father sought possession of his property. The judge understood the applicant’s case to rest upon a representation that he would be allowed to stay in the property in exchange for his services in caring for his aged parents. (His mother died some years ago.) On the basis that such a representation was established, the judge nevertheless held that there was no evidence to support a right of occupation after his father left the…

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.

Continue reading Taunton v Taunton

Details

AGLC: Taunton v Taunton [2020] NSWCA 197
Case: [2020] NSWCA 197
Decision Date: 28 August 2020

CaseChat Overview and Summary

The applicant, the son of the owner of certain real property, sought leave to appeal against orders for possession of that property made by the primary court. The proceedings for possession had been commenced by the owner's other son, acting under a power of attorney. The applicant, who had been occupying the property and caring for his father, alleged that his father had represented he could remain in occupation for his lifetime. The owner's son sought possession to sell the property to fund his father's nursing home fees.

The primary legal issues before the Court of Appeal were whether leave to appeal should be granted, particularly in light of the applicant's intention to challenge the validity of the power of attorney under which the proceedings were commenced, an issue not raised in the original proceedings. The court also considered whether the grounds of appeal addressed the correctness of the primary court's decision, and the practical effect of any potential appeal given that the possession orders had already been executed.

The Court of Appeal refused the application for leave to appeal. Their Honours noted that the grounds of appeal did not address the correctness of the decision under appeal, but rather sought to raise a new issue concerning the validity of the power of attorney, which had not been litigated in the court below. Furthermore, the possession orders had already been executed, rendering any appeal against those orders largely futile. The only outstanding matter was an order for costs.

Consequently, the Court of Appeal refused the application for leave to appeal and dismissed the summons. The motion filed on 19 May 2020 was also dismissed, and no order was made as to the costs of the proceedings in the Court of Appeal.

Orders

Orders of the court

(1) Refuse the application for leave to appeal and dismiss the summons in matter 2020/148465.

(2) Dismiss the motion filed on 19 May 2020.

(3) Make no order as to the costs in the proceedings in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Taunton v Taunton [2020] NSWCA 197
Hearing dates:	26 August 2020
Date of orders:	26 August 2020
Decision date:	28 August 2020
Before:	Basten JA; McCallum JA
Decision:	(1) Refuse the application for leave to appeal and dismiss the summons in matter 2020/148465. (2) Dismiss the motion filed on 19 May 2020. (3) Make no order as to the costs in the proceedings in this Court.
Catchwords:	APPEALS – leave to appeal – orders for possession of real property – family dispute – property owned by father – order for possession obtained against defendant son in occupation – proceedings commenced by defendant’s brother under power of attorney – leave sought to challenge execution of power of attorney – issue not raised below – grounds not addressing correctness of the decision below – orders executed – only payment of costs order outstanding – futility of appeal REAL PROPERTY – orders for possession – family dispute – property owned by father – order for possession obtained against son in occupation – son had been caring for father – possession sought to sell property to pay for nursing home fees – son alleged representation by father that he could remain in occupation during father’s life
Category:	Procedural and other rulings
Parties:	Daniel Clint Taunton (Applicant) John Eric Taunton (Respondent)
Representation:	Applicant self-represented Gregory Taunton and Joanna Taunton as tutor for John Eric Taunton
File Number(s):	2020/148465
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2019] NSWSC 1513 Date of Decision: 4 November 2019 Before: Slattery J File Number(s): 2019/153609