Monaco v Martinelli [2023] NSWSC 375

Supreme Court New South Wales

Medium Neutral Citation: Monaco v Martinelli [2023] NSWSC 375 Hearing dates: 4, 5 April 2023 Date of orders: 5 April 2023 Decision date: 14 April 2023 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Plaintiffs' application to continue injunction restraining sale of property refused Catchwords: AGENCY — Power of attorney — Revocation — Interlocutory injunction to restrain sale of elderly mother's home by adult children who were her attorneys and enduring guardians — Whether serious question to be tried that mother still had capacity to revoke appointments — No issue of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 25.3 Cases Cited: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 Category: Procedural rulings Parties: Domenic Monaco (First Plaintiff) Adelina Monaco (Second Plaintiff) Liliana Martinelli (First Defendant) Eugenio Monaco (Second Defendant) Representation: Counsel: K Tang (Plaintiffs) T Catanzariti (Defendants) Solicitors: Baker Lover Lawyers (Plaintiffs) Turnbull Hill Lawyers (Defendants) File Number(s): 2023/108880 Publication restriction: Nil

Judgment

Summary 1. It is a feature of the Duty List that the urgency which attends some matters means that the Court must do the best it can on the information available, even when the outcome may have substantial and irreversible implications for one or other of the parties. This family dispute is an example of such a case. Without disrespect, I shall refer to the parties by their given names. 2. The first plaintiff (Domenic) is the adult son of the person listed in the Amended Summons as second plaintiff (Adelina). Why I describe her in that way is explained in [30] below. Domenic has cared for Adelina in the family home (the Property) for several years. Adelina is, by survivorship from her late husband, the sole proprietor of the Property. 3. The defendants are two of Domenic's three siblings, Liliana (referred to as Lilian) and Eugenio. Lilian and Eugenio were appointed enduring guardians and attorneys pursuant to documents signed by Adelina on 13 October 2017 (the Powers). The defendants are selling the Property pursuant to the Powers. These proceedings were commenced two hours before an online auction of the Property was due to take place (the Auction). 4. The underlying dispute is one that is all too familiar to the Court: well-meaning family members unable to agree about the future care of an elderly parent. Domenic wishes to continue to care for Adelina at the Property and says that is also what Adelina wants. The defendants say that Adelina, who has been diagnosed with dementia, now requires a higher level of care than can be provided by Domenic, which must be funded by the sale of the Property at the Auction. 5. As the case was ultimately presented for the plaintiffs, it was accepted that they had no evidence either to impugn the circumstances in which the Powers had been granted, or to challenge the propriety of the impending Auction. The only equity upon which the plaintiffs could rely for the injunctive relief which they sought to restrain the Auction was what they submitted was Adelina's right and wish to revoke the Powers with the intention that she would continue to live in the Property and be looked after by Domenic. In order to exercise that right, Adelina would have to be shown to have the legal capacity to revoke the Powers. If, as the defendants argued, she had already lost capacity, then it was common ground that according to their terms the Powers could not be revoked if Adelina did not have capacity to do so. 6. Relying on Domenic's undertaking as to damages, the Court originally restrained the Auction for 24 hours to enable the parties to marshal some proper evidence. At the return of the injunction the next afternoon, the Court declined to continue the restraint, with the result that the Auction was to proceed at 5pm. These are the reasons for that decision. 7. In summary, those reasons were: 1. The evidence, such as it was, strongly favoured the conclusion that Adelina had lost capacity and, therefore, could not validly revoke the Powers. In other words, insofar as there was a serious issue to be tried, the plaintiffs' case that Adelina could revoke the Powers was a weak one. 2. Conversely, there were strong balance of convenience considerations in favour of the Auction being permitted to go ahead. These included that Domenic is an undischarged bankrupt, such that it became apparent that the undertaking as to damages which he had originally proffered was valueless; there was every reason to think that an immediate online auction with three very interested bidders would produce the most advantageous result in Adelina's best interests; and, maximising the sale price for the Property was in Adelina's best interests because she otherwise would have no funds to pay for the ongoing care which the Court was satisfied she now requires. 1. Mr K Tang of Counsel ultimately appeared for the plaintiffs. Ms T Catanzariti appeared for the defendants.