Taunton v Taunton

[2019] NSWSC 1513

Supreme Court

New South Wales

Medium Neutral Citation:	Taunton v Taunton [2019] NSWSC 1513
Hearing dates:	4 November 2019
Date of orders:	04 November 2019
Decision date:	04 November 2019
Before:	Slattery J
Decision:	Judgment for possession entered. Writ for possession to be issued on 12 December 2019. Injunctions continued. Order for costs up to today against defendant.
Catchwords:	LAND – judgment for possession – father is registered proprietor of land – seeks possession of land from son who is in occupation – father acts by another son (and the other son’s wife) as attorneys – notice to quite given – whether son is trespasser – defences to action for possession – whether defences made out – discussion of the issue of a writ for possession.
Legislation Cited:	Legal Aid Commission Act 1979, s 57 Uniform Civil Procedure Rules 2005, r 6.8
Category:	Consequential orders (other than Costs)
Parties:	Plaintiff: John Eric Taunton Defendant: Daniel Taunton
Representation:	Counsel: Plaintiff: A. Hopkins   Solicitors: Plaintiff: Rebecca Campbell, Aubrey Brown Lawyers Defendant: in person, Kerry Anne Knibbs
File Number(s):	2019/153609
Publication restriction:	No

EX TEMPORE Judgment

1. John Taunton has two sons, Gregory Taunton and Daniel Taunton. Gregory Taunton is married to Joanna Taunton. John Taunton is 82 and needs full-time nursing care. He presently resides in a nursing home on the Central Coast. Gregory Taunton moved his father into that nursing home in May, 2018 from his home at Wamberal (“the Wamberal property”) on the Central Coast. Daniel Tauntion, the defendant, presently occupies the Wamberal property. John Taunton now seeks, and his son resists, judgment for possession of the Wamberal property.

2. The parties to these proceedings are all from the one family. They referred to one another in evidence by their first names. Without intending any disrespect to any of them, for convenience in these reasons, the Court will also use their first names.

3. Long before going into the nursing home, in anticipation of a decline in his capacities, in 2010 John entered into an enduring Power of Attorney; giving a power of attorney jointly to Gregory, to Daniel and to Joanna. John now brings these proceedings by his attorneys. A majority of them, namely Greg and Joanna, resolved to commence them against Daniel.

4. Today the Court held a final hearing on the issues raised in the Statement of Claim and the Defence.

5. John is represented in the proceedings by Mr A. Hopkins, of counsel, instructed by Aubrey Brown, solicitors. At today's hearing, Mr Hopkins was present during most of the day until lunch time. The plaintiff was represented by Ms R. Campbell from Aubrey Brown, this afternoon.

6. The defendant, Daniel, represented himself. At the opening of proceedings today, he requested the assistance of a McKenzie friend to assist him. The Court has a broad discretion to allow an unrepresented person to be assisted by someone in that role, provided it will promote the better administration of justice.

7. Daniel Taunton nominated Ms Kerrie Ann Knibbs to be his McKenzie friend. Ms Knibbs agreed to this role. And, if I may say so, she discharged it very effectively to assist Mr Daniel Taunton. It need not be discussed in any detail in these reasons, but Daniel Taunton indicated to the Court that he had a disability which made it more efficient and convenient for the smooth flow of his case to have assistance from a McKenzie friend. Given her professional background, Ms Knibbs was an excellent presenter on his behalf. With her assistance the case was able to be run efficiently, more or less within the allocated time.

A Case Comes into the Duty List – August 2019

8. These proceedings were commenced by Statement of Claim on 16 May 2019. They were first made returnable in the Registrar's list in July. But John, rightly took the view that the seeking of final relief was urgent. So, on 28 August 2019, when I was sitting as Duty Judge, he sought a mandatory injunction in the Court's equitable jurisdiction to remove the defendant from the premises.

9. The Court considered the application. It indicated to Mr Hopkins that, on the evidence presented, a mandatory injunction, was unlikely to be the most appropriate remedy to promote the better administration of justice.

10. The Statement of Claim sought, as primarily relief, a declaration that the defendant had no right to occupy the land and was trespassing. Prayer for relief 3 sought a permanent injunction restraining the defendant from: "entering upon or remaining on the property, or otherwise interfering with the property."

11. Relief framed in this form is problematic. There was no doubt that Daniel was already in occupation of the property. For the Court to grant a permanent injunction restraining John from "entering upon or remaining on the property" was, in substance, a mandatory injunction trying to remove him from the property. The Court pointed out, on 28 August, the problem with proceeding in this way.

12. Seeking such relief against an occupier of land has two disadvantages. The main one is that were the defendant to be convicted of that he would, in substance, be guilty of a contempt. And the process of obtaining the mandatory injunction, followed by the contempt action, would probably take far longer than the more efficient process available, in the Common Law Division, namely seeking judgment for possession.

13. The other disadvantage of a mandatory injunction is that it may lead to a breach of the peace. In contrast, judgment for possession, which is executed by a Sheriff's officer, reduces the possibility of breaches of the peace from violent resistance. Several Sheriff's officers come and take possession of the property. They are, as advised, accompanied by police officers. They secure the property so it cannot be re-entered. This is done in a controlled way by the Sheriff's officers. Unpredictable damage to persons or property, which may also result in the occurrence of criminal offences, are minimised.

14. The Court raised this with Mr Hopkins. John proceeded with the alternative relief already claimed, of a judgment for possession, rather than the primary relief sought of a mandatory injunction. The matter proceeded, thereafter, on that basis.

15. In order for the matter to proceed to judgment for possession, it was necessary for the plaintiffs to comply with Uniform Civil Procedure Rules2005 (“UCPR”), r 6.8, which imposes special requirements on plaintiffs who seek possession of land. On 28 August, the Court made directions for the plaintiffs to comply with rule UCPR, r 6.8.

16. On the evidence available to it, on 28 August the Court granted ex parte relief, restraining the defendant from dealing with the Wamberal property, from leasing or attempting to lease the Wamberal property, and from removing or disposing of any chattels or fixtures from the property. Those injunctions continue. These injunctions will need to be addressed briefly at the conclusion of my reasons.

17. The matter was adjourned to 26 September and notice of the adjourned date was given to the defendant, Daniel. But he communicated with the Court and with the plaintiffs, indicating that he was attempting to obtain legal aid. The appeal period against the dismissal of his existing legal aid application would not run out before 26 September. So the Court vacated that date. Daniel had a right, under Legal Aid Commission Act 1979, s 57, to have his appeal against refusal of legal aid considered before the matter came back to Court.

18. The proceedings were adjourned to 14 October. On that day Daniel appeared and explained what his case was. After submissions from both sides, the matter was, on his application, and over the opposition of the plaintiff, John, adjourned to today.

19. When the adjournment took place on 14 October, the Court indicated that as the pleadings were, by then closed, and John had indicated he had filed all his evidence, it would approach the matter as a final hearing. The Court adjourned the proceedings to today, provisionally listing it for a hearing of some two hours.

20. The proceedings commenced this morning. Initially it was thought they were ex parte. After they commenced at 9.30, Daniel attended about 10 o'clock. He did so on the basis of correspondence received from the solicitors from the plaintiff, indicating that 10 am was the start. The Court heard the matter this morning between 10 am and approximately 1.20 pm and indicated it would give judgment this afternoon.

The Pleadings and the Issues

21. This is a case where the parties, in my view, need a judgment today, so they all have certainty as to where they are all going over the next few months.

22. Approaching the proceedings as an application for judgment for possession, John has complied with the procedural requirements of UCPR, r 6.8. The evidence of a process server, Mr Gavin Bellamy, establishes that on a combination of 29 and 30 August this year that the requisite r 6.8 notices were served on Daniel and notices to occupy were left at the Wamberal property. If the case is otherwise established, procedurally the plaintiff can have judgment for possession.

23. The Court tried the case on the pleadings, the statement of claim and the defence. The issues raised by the pleadings were straightforward. It is not in issue that John is the registered proprietor of the Wamberal property and that Daniel is in occupation.

24. Daniel had legally qualified assistance in preparing and filing his Defence. Both in form and substance it indicates a degree of legal judgment about the matters to be put in issue. The Statement of Claim alleges, and the Defence does not take issue with the facts: that the plaintiff is acting by the power of attorney in commencing these proceedings, that the defendant Daniel is residing on the property, that on 6 April Gregory and Joanna resolved, pursuant to the enduring power of attorney, that the property should be vacated sold, or rented, and the proceeds used to fund the plaintiff's acquisition of a place in an aged care facility.

25. The admissions made in the defence are important in relation to one preliminary matter raised in the hearing today. Ms Knibbs raised a concern that the decision making under the power of attorney had excluded Daniel. She submitted that he had not been given proper notice of various decisions, including, the decision which was made to sell the property and commence these proceedings. Challenges to the commencement of proceedings in these circumstances are possible. But there are several reasons why such an issue should not be considered in this case.

26. Firstly, the pleaded defence on which the trial is proceeding admits that the attorneys’ resolution of 6 April authorising the commencement of proceedings was passed. Secondly, if there was going to be a challenge to the legality of that resolution, a motion would need to have been filed to challenge the retainer of Messrs Aubrey Brown Lawyers on the basis that there was no proper basis authorising their commencement of the proceedings.

27. Neither of those things has been done. Notwithstanding Ms Knibbs' raising of this issue, it is not a matter which is now open to the Court to examine. Were it to be examined, an amendment to the pleadings would be required. A motion for that would need to be filed. That would have taken considerable time to achieve. For reasons which will become clear when I enter into the facts in more detail, this is not a matter which has the luxury of time available. There would have been strong discretionary reasons against the adjournment of the proceedings any further, even if the proper procedural steps had been put in place.

28. Daniel does not have legal representation. He says he cannot afford it. The Court understands that. For that reason the Court gave him a number of adjournments to allow him to obtain legal representation. Again the court invited Ms Knibbs and Daniel to see if they wanted to seek a further adjournment. They expressly said today that they did not. If I may say so, that was a correct judgment. An adjournment was unlikely to have been granted, given the pressing nature of these proceedings.

29. The Statement of Claim alleges that after non-compliance with the notice to vacate, Daniel, is a trespasser in that "remaining on the property without lawful excuse” amounted to a trespass, which is continuing. The pleading alleges that the plaintiff has been deprived of the use of the property and suffered loss and damage. Mesne profits to the value of $700 to $750 a week are claimed.

30. The defence pleads a reasonably detailed answer to the allegation of trespass in the Statement of Claim. In summary, Daniel pleads that in about 2012 John represented to him that he could reside at the property, provided he provided care for John and his late mother. This was said to be based on conversations occurring in about 2012.

31. It is further pleaded that in reliance upon that representation that Daniel moved into the property and provided care for John and his mother until her death, by undertaking weekly grocery shopping, driving, outings, laundry, assistance with meals, assistance at bedtime and waking and liaising with Hammond Home Care regarding home services. It is alleged that these care duties were provided at no cost and that the defendant also contributed to the maintenance of the property by using his own funds to pay for weekly groceries, electricity bills, arrangement of trades personnel, arranging the sale of a motorcar and the purchase of a larger one, the undertaking of landscaping works and contributing landscaping materials. It is pleaded that this expenditure, and his act in moving into the premises, resulted in a detriment in reliance upon the representation.

32. This pleaded case may, in some circumstances, have entitled the defendant to a right of occupation of the Wamberal property. But the evidence adduced by Daniel does not make out such a case. His evidence certainly covers some expenditure. But it does not make out a case that there has been any expenditure in reliance upon those representations. Nor does Daniel's case establish any right of occupation beyond John’s occupation of the property. At its best the right to occupy pleaded in paragraphs 10(a) to 10(d) was a right that might logically terminate when John left the property.

33. The matter is complicated by the fact that the plaintiff also alleges that Daniel's conduct in caring for his parents was not of a quality that might be reasonably expected, in response to the representation. The Court does not have to go into these matters. But it merely records that that issue is raised. This defence ultimately has a problem at a more elemental level.

34. Some further background is required in order to determine the issues in this case. Any case in which one brother is seeking to evict another brother from a home once occupied by both their parents must be distressing enough for all the parties involved. But that is the case before the Court. In the absence of agreement between family members the Court that must resolve it. A limited number of facts about the family that are necessary to assist in the resolution are now recorded.

The Taunton Family – 2010 to 2019

35. John's main asset is the Wamberal property. The Court has seen photographs of a picturesque property rolling over some three acres with a main three bedroom house and a number of outbuildings. John and his late wife lived there together, until she passed away in July 2016. As is not uncommon, after Mrs Taunton died John Taunton's health deteriorated. Initially both sons responded to that decline by increasing the care being provided for him at home. In the early time of the decline of the health of Mrs Taunton and then Mr John Taunton, a degree of cooperation existed between both brothers. But the stresses and strains of looking after elderly parents can take their toll on all families. Relationships not uncommonly fray in this situation.

36. Daniel had a business in Melbourne. He was required after some problems with that business to move back to New South Wales in about 2015-2016. From about the time Daniel returned tensions between the brothers grew.

37. Allegations made between them, that I do not have to determine in these proceedings, are either denied or dealt with in contested evidence. It is not necessary for the Court to go into them in any great detail, other than to say that there are allegations made that there has been drug taking at the Wamberal property. There have been allegations of angry scenes between the brothers, which have resulted in an AVO being taken out against Daniel. There is evidence from a neighbour about some of these matters. This case can be decided on other grounds. The Court will not unnecessarily burden the parties with public findings about family conduct.

38. Why is the matter urgent? The Court adjourned this case from the duty list twice until today, so that it could be determined before Christmas. The reason comes down to this. John was admitted to the nursing home in May 2018. Daniel believes that his brother, Gregory, kidnapped his father from the Wamberal property and took him to the nursing home. Objective evidence suggests that geriatricians had recommended that John be admitted into a nursing home. According to Gregory, John was taken to that nursing home quite voluntarily.

39. There does, however, seem to have been a breakdown in communication. Daniel was not informed at the moment that Gregory took his father away from the Wamberal house. The fact that such a breakdown in communication occurred is unfortunate. But it should not be a cause for continuing misunderstanding between brothers. The evidence establishes that John is staying at the nursing home. Medically, that is recommended for him. The Wamberal property is his. So proceeding is in John's best interests.

40. John's case is that he is running out of money. At the time Gregory filed his affidavit, supporting the application for these proceedings to be placed in the duty list, John's assets were recorded as being a house valued at $1.1 million, shares of $21,000, a bank account of $79,000 and a Refundable Accommodation Deposit (“RAD”) at the nursing home of $225,000.

41. John's income is a pension of $539 per week. John's outgoings were recorded at a total per annum of $55,670, comprised partly of aged care fees of $37,683 per year. The rest of his expenses amount to some $17,987 per year. These non-aged care expenses, are alleged by Gregory (on behalf of John) to be a combination of property maintenance, water rates, council rates, septic tank, and Wamberal property related expenses, plus other financial expenses and health cover expenses. The Court has received evidence that about $8,900 of those may be related purely to the Wamberal property.

42. The up-to-date evidence at this hearing is that due to ongoing Wamberal property maintenance expenses and other costs of John’s nursing home, that John's bank account has now declined to a balance of $41,000. John has shares that are probably now worth less than $21,000. John says that if something is not done to sell the property he will run out of money within the next six months.

43. Daniel seeks to answer this in a number of ways. He says Gregory has failed to apply to the Commonwealth Department of Human Services for aged care financial support to John's best advantage. Daniel says that Gregory could have declared to the Department that Daniel would qualify as John's carer. For that reason John would be entitled to a refund of over $40,000. Daniel says that Gregory knew that Daniel qualified as a carer but failed to declare to the Department that he was, so John's financial estate has been disadvantaged. Gregory denies this. So does Joanna. They both say they do not believe that Daniel qualified as a carer and that is why they filled out the Department’s form the way they did.

35. The Court has seen a range of contested evidence about this. Daniel says that he has been registered as a carer since June 2015. The Department of Human Services website, the content of which the Court can take judicial notice as an accurate source of Commonwealth Government policy, says that for the purposes of assessing Commonwealth payments for aged care purposes that a house is not assessed as an asset, if it is occupied for a person who has been caring for two years for the person going into a nursing home.

36. Daniel relies on this. He says he cared for John for two years and is a ‘protected person’. Gregory disputes Daniel was at the Wamberal property for two years before John vacated the premises. In any event, Gregory points to another provision in the Commonwealth policy that says that a principal home is exempt in any event for a period of two years after a pensioner enters a care situation. If correct this would mean that the Wamberal property has already been exempted from John’s assessment and would be exempt until May 2020 and a refund is unlikely, in the short term.

37. There is thus a continuing contest between the parties as to the financial effect of the failure to declare Daniel a carer to the Department. On the materials available this is difficult for the Court to resolve. The Court must approach the issue in a more basic way.

38. The current outgoings of John at the nursing home are about $3,000 per month. They will continue to be his outgoings and will continue to reduce his available reserves. The RAD is currently paid up to fifty per cent. If the other fifty per cent is paid, which is another $225,000, one can expect a significant reduction in his outgoings, but it will not reduce them altogether. The current interest rate is a matter of published fact, which may allow these figures to be adjusted. But if one assumes that the RAD interest charges are five per cent, the unpaid balance of $225,000 owing to the aged care facility for the RAD is presently costing John approximately $11,250 a year. Whatever is done, even in the most optimal situation, to reduce the nursing home fees, unless the RAD is paid, it is going to cost John $11,000 a year at the nursing home for the unpaid RAD.

39. If one adds the Wamberal property maintenance costs and John’s health insurance and the like of about $17,500 to the interest cost of the unpaid RAD, even if one accepts everything that Daniel says about the aged care repayment of $40,000, it is still going to cost John something of the order of $30,000 a year to maintain the Wamberal property and keep himself in the nursing home. He only currently has $40,000 in the bank.

40. This financial logic means that the property has to be sold, even giving full credit to Daniel's arguments. The matter therefore is urgent. It should not be adjourned again. Under no circumstances could the Court allow John to run out of money. Both Gregory and Daniel have expressly said to the Court that is not something either of them wants in the best interests of their father.

Daniel’s Defence

50. Does Daniel have a defence? In my view, he does not. Despite the effort that has gone into him and Ms Knibbs gathering evidence, the pleaded defence in my view is not made out. There is no clear evidence adduced of the representation he has pleaded: that he could stay in the property in exchange for his services.

51. This situation may have arisen because Daniel did not get legal advice at the time he drafted his affidavit. But the Court must approach the matter as it finds it. There are some suggestions in Daniel's evidence that his occupation was directly related to the care of his father. But there is nothing in his affidavit which supports a case that he had a right of occupation after John left the property until John's death, for example. Nor is there anything in the affidavit, or the other materials the Court has seen, that supports a case that when Daniel was undertaking expenditure at the Wamberal property, he was relying on having a right of occupation in the longer term against John, especially should John need the money, as appears to be the situation now.

52. Even if he were to make out such a case, equity may not interfere with the sale of the property, even if the evidence was available, because equity would still have to balance in granting relief the position of John and the nursing home and the need to have his position secured.

53. Instead of those essential matters, Daniel's affidavit raises a number of other issues to dispute evidence advanced by Gregory. But these are matters of detail that ultimately are not central to the case. Other than to note that there are disputes I will not go into them.

54. The Defence in my view fails. There is no doubt the notice to quit was served on 6 April. Daniel has not proven a tenancy. He became a trespasser on the property. For that reason an order for possession should be made. There is no defence to a claim by a registered proprietor against a trespasser, which is what we have here. The Court will grant an order for possession.

Issuing a Writ for Possession

55. Judgment for possession is only part of the story. The Court must then consider issuing a writ for possession. The writ authorises the Sheriff to actually go and take possession of and secure the property. The Court asked Daniel, should this position be reached, how long he needed to vacate. He told the Court he required six months. John says in reply that Daniel has already had since April of this year and should have been getting ready to be dispossessed.

56. How long should be granted for the writ is a difficult question. A number of relevant factors must be taken into account.

57. The Court accepts that Daniel has a condition which makes organisation difficult for him from time to time. He may well need the assistance of other people to organise what may be quite a large moving job. On the plaintiff's evidence there is quite a lot of property on the premises that does belong to Daniel that will have to be moved. Daniel will also have to apply for public housing. One issue is the holiday period and whether someone should be removed from a property just before Christmas, when it is difficult to find alternative accommodation.

58. On the other hand, there are pressing factors about John's situation that have to be taken into account. If one accepts the plaintiff's figures at face value that about $55,000 a year is being spent (roughly at the rate of $5,000 a month), the rest of John’s liquid funds will be gone in eight months. I suspect they will be gone a lot sooner. What has not been taken into account is the cost of preparing the property for sale which will fall upon John and may be quite significant in this case. I do not think that the $40,000 is going to last very long, if the property is to be sold. Of course some of that expenditure can come out of the proceeds of sale, but not all of it will be able to be paid that way.

59. Let me accept the correctness of Daniel's arguments for a moment and assume that the expenditure is roughly $30,000 per annum not $55,000 per annum. On that basis, the remaining amounts in the bank account would last between 12 and 15 months. If there is a possibility of money being refunded into the bank account or use of the shares, for example, it may be more likely to last 15 to 18 months. But I anticipate significant expenditure for these parties in the short-term. Who is going to pay for the removal of Daniel's property? What happens if he does not remove it? Who is going to pay for the removal? How is it going to be done? The only fund available to do this, if Daniel is not able to afford it himself in the short-term, will be John's own money.

60. These things have to be considered. So even if Daniel is correct and $40,000 is able to be put back into the account as a refund from the Department of Human Services, much of that additional money may well go on the expenses associated with the sale. But if Daniel is wrong, and no other money comes back into the account, all that really is left here is selling the shares to cover some of these expenses. It seems to me for that reason that sale in the near term is what is required.

61. The Court is mindful this should not too confronting for Daniel who has had many shocks: the loss of a business, relocation and other difficulties to accept in recent times. So the Court has decided that Daniel should have the security of staying in the property over the Christmas period. He is going to need up until then to get organised to remove his property. But he must vacate the property by 31 January. He wanted six months but he is getting a little bit under three. He complained that he was given fourteen days' notice by his brother. The Court is giving him three months' notice. But that is the maximum the Court can reasonably give in the circumstances.

62. Possession will be taken by the Sheriff in the usual course 35 days after a writ for possession issues. My Associate's inquiries reveal that the Sheriff's office is on a break for the Christmas period between Friday 20 December 2019 and Monday 6 January 2020. Calculating back 35 days from 31 January 2020, but omitting the vacation period the writ should issue on 12 December 2019.

63. The Court will also direct that the plaintiff to bring in a proposal by Friday 15 November, which creates a regime by which the defendant, Daniel, will be allowed to remove his personal property from the Wamberal premises before 31 January 2020, without breaching any injunction.

64. Such a regime is necessary. It must necessarily be discussed between the brothers or solicitors and counsel for John and Daniel. The following potential difficulties will arise. Whose property is being removed and by whom? What is Daniel claiming is his? What does Gregory say is John’s property, which presumably Gregory will remove? It is important that what the Court now orders does not itself create further disputation between the brothers.

65. The way this is commonly done is an independent person may have to come in and take photographs of the chattels in the property. There may need to be some joint walk-through, possibly on camera or by digital recording, where a discussion takes place about who owns what. Markings of property can sometimes be done.

66. General descriptions of property often do not work to provide clarity at the time of removal. If there is still a lack of trust between the parties when the removal takes place, it may need to be done under independent supervision. All of this will cost money. But it is far better for the parties to try and agree upon a regime to identify what is Daniel's and what belongs to John and that some consensus and trust is created about how and what is removed and when removal shall take place.

Conclusion and Orders

67. Accordingly, the Court makes the following orders and directions:

1. Judgment for possession of the property described in Schedule A to these orders (“the subject property”).

2. Order that a writ for possession of the subject property issue on 12 December 2019.

3. Note that Order 1 of the orders made on 28 August 2019 continue until further order.

4. Direct the plaintiff to serve on the defendant and provide to my Associate by Friday, 15 November at 4.00pm proposed orders which create a regime so the defendant will be allowed to remove his personal property from the subject property before 31 January 2020, without breaching any injunction.

5. List the proceedings before me for mention at 9.30am, on Tuesday 19 November 2019.

6. Grant liberty to apply.

7. Order the defendant to pay the costs of these proceedings up to today.

Schedule A

[address not published]

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Decision last updated: 08 November 2019