New South Wales Supreme Court CITATION : Wilson bht Protective Commissioner of NSW v Parkes [2000] NSWSC 492 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10978/99 HEARING DATE(S) : 31 May 2000 JUDGMENT DATE : 6 June 2000 Lorna Mary Wilson by her Tutor The Protective Commissioner of New South Wales (Plaintiff) PARTIES : Albert Stephen Argus (now deceased) (Plaintiff) Lynette Parkes (Defendant) JUDGMENT OF : Master Harrison Ms K Burke COUNSEL : (Plaintiff) Ms J Gordon of E H Tebbutt & Sons SOLICITORS : (Plaintiff) Ms L Parkes (Defendant in Person) CATCHWORDS : Summary judgment - possession Supreme Court Rules - Part 13 r 2 LEGISLATION CITED : Protected Estates Act 1983 Guardianship Act 1987 Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Dey v Victoria Railway Commissioners (1948-49) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Webster & Anor v Lampard (1993) 177 CLR 598 CASES CITED : Westminister P/C v Skelton [1933] WLR 72 Horrobin v Australian & New Zealand Banking Group (1996) 40 NSWLR 89 Lord v Direct Acceptance Corporation (NSWCA unreported, 25 November 1993) NRMA Insurance Ltd v B & B Shipping & Marine Salvage Insurance Pty Ltd (1947) SR (NSW) 273 at 279 Collier v Howard (NSWSC, unreported Dunford J, 23 February 1996 David v David [1998] NSWSC 3 (4 February 1998) DECISION : See para 18 11 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON TUESDAY, 6 JUNE 2000 10978/99 - LORNA MARY WILSON by her tutor THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES & ALBERT STEPHEN ARGUS (NOW DECEASED) v LYNETTE PARKES JUDGMENT (Summary judgment; possession) 1 MASTER: Lorna Mary Wilson by her tutor and the Protective Commissioner of New South Wales seeks firstly, an order that the defendant's defence and cross claim filed on 4 June 1999 be struck out pursuant to Part 13 r 2 of the Supreme Court Rules (SCR); secondly that judgment be entered for the plaintiff for possession; and thirdly, that the plaintiff be granted leave to issue a writ of possession. The plaintiff relied on the affidavit of Kenneth George Gabb sworn on 3 March 2000. The defendant relied on her affidavits sworn 31 March 2000 and 22 May 2000. 2 A short history of the matter is as follows. (1) The plaintiff, Lorna Wilson and Albert Argus (now deceased) purchased, as tenants in common, property situated at 1083 Alamein Avenue, Albury, being the whole of the land comprised of in Certificate of Title Folio Identifier 25/23146 (the property). Lorna Wilson held a two third interest and Albert Argus held a one third interest. (2) On 26 August 1996 Lorna Mary Wilson became a protected person within the meaning of the Protected Estates Act 1983. On that date, the Guardianship Board was satisfied that Lorna Wilson was not capable of managing her affairs and ordered that the management of the estate of Lorna Wilson be committed to the Protective Commissioner. (Ex A). (3) From on or about 20 August 1996 and until December 1997, Lorna Wilson resided at the property, save for respite care. (4) Between September 1997 and December 1997 the defendant returned to the property to allegedly care for the plaintiff. During that time, it appears that the care workers providing meals on wheels, home care and other such like community health care for Lorna Wilson complained that the defendant was interfering with the care being provided by them. The defendant says that she was acting in the best interests of her mother. (5) In February 1998 the plaintiff was permanently placed in a hostel, awaiting placement in a nursing home (6) In July 1998 the children of Lorna Wilson, save for the defendant, agreed to the property being sold so as to enable Lorna Wilson to have funds available to provide for her daily care needs. (7) On 3 October 1999 the plaintiff Albert Stephen Argus died. By his will he appointed Lorna Mary Wilson as executor of his estate and left the whole of his estate to Lorna Mary Wilson. The Public Trustee will seek Probate of the deceased estate shortly. (8) On 29 November 1999 the Victorian Civil and Administrative Tribunal appointed the Public Advocate as limited guardian of Lorna Wilson for at least three years. The powers and duties under this order are limited to health, care and accommodation. (9) On 23 April 1999 the plaintiff filed the statement of claim seeking possession of the property. (10) Since about February 1999 the defendant has been in occupation of the property without the consent of the plaintiffs and has, despite being served with notice of claim for possession, refused to vacate the property. (11) On 12 February 1999 the defendant was served with a notice to vacate. She has failed to comply with the notice. (12) On about 30 April 1999 the defendant was served with a notice of claim for possession, and the statement of claim. (13) Lorna Mary Wilson is currently housed in temporary hostel accommodation awaiting permanent placement. At present there are insufficient funds to cover any liabilities and permanent placement accommodation for her. The law in relation to summary judgment 3 The relevant parts of Part 13 r 2 (SCR) says: "2(1) Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff - (a) there is evidence of the facts on which the claim or part is based; and (b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed, the Court may, by order, on terms, give such judgment for the plaintiff on that claim or part as the nature of the case requires. 4 In a recent decision Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 5 In General Steel Barwick CJ, who heard the application alone stated: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 6 Barwick CJ also said: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; be manifest that to allow them' (the pleadings) 'to stand would involve useless expense." 7 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at p 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried."' 8 According to Rolfe AJA in Zarb: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241." 9 In a defence and cross claim filed on 4 June 1999, the defendant admits that her uncle Argus and her mother owned the property It states: "I am daughter to Lorna Wilson and niece to Albert Stephen Argus. We are all blood relations our home is 1083 Alamein Avenue and we each have our own room and have shared living expenses before this misadventure for the last 14 years or so Since guardianship we have suffered extreme hardships and our quality of life has decreased we had a better quality of life before this mis-adventure and we had savings in the bank no debts and half of a retirement unit paid for in COROWA and plead the following: (a) My mother gave me her Power of Attorney in July 1993 (b) My mother wishes to be returned to her own home or a unit 4 ST JOHN'S CLOSE FEDERATION DRIVE COROWA WHICH EVER HAPPENS FIRST. …" 10 At paragraph (j) it is pleaded: (j) I myself have contributed a pecuniary value for improvements to 1083 Alamein Avenue and also in caring for my mother and Uncle and I have had little help from family and community up to date." 11 and at paragraph (l): (l) When I returned home to Albury to manage my mother as Trevor Wilson was trying to remove my mother from her home into a room at a hostel and to shunt Steve off to Beechworth again, so used the money my grandmother Elizabeth Anne Argus had in trust for my Uncle to buy Trevor Wilson out of the house. I myself contributed over the years with the SPOUSE SETTLEMENT I had received from my ex-husband and a compensation related injury. Solicitors being respectively, HENRY DAVIS YORK AND KELL & MOORE. 12 The defendant seeks order that: "1. DISMISS STATEMENT OF CLAIM FILED FOR PROTECTIVE COMMISSIONER 2. THE RELEASE OF MY MOTHER FROM THE HOSTEL AT BEECHWORTH 3. … 4. NO PROVIDERS ENTER OUR HOME WITHOUT OUR EXPLICIT PERMISSION 5. ALL ITEMS THAT HAVE BEEN TAKEN FROM OUR HOME IN 1083 ALEMEIN (sic) AVENUE BE REPLACED OR VALUE COMPENSATED. 6. COMPENSATION TO THE MAXIUM (sic) PAID TO MY UNCLE, MY MOTHER, AND MYSELF FOR THE DAMAGE DONE TO OUR REPUTATION, HOME AND PAIN AND SUFFERING ENDURED FOR NOT BEEING (sic) ALLOWED TO LIVE IN OUR HOME IN PEACE AND TAKING AWAY OUR CIVIL LIBERTIES. 7. ALL COSTS FOR FILING AND EXPENSES FOR TRAVELLING AND ACCOMMODATION RELATING TO THIS CROSS CLAIM AND DEFENCE PAID IN FULL. 8. FEES FOR ESTATE MANAGEMENT WAIVERED AS MY MOTHER IS SUFFERING FROM HARDSHIPS." 13 The issue in an action for possession is whether the plaintiff, at the time the statement of claim is issued, has good legal title to immediate possession. There is a line of authority which established the principle that the existence of a cross claim will not itself defeat the right of possession of a legal chargee unless the set off actually goes to the root of, be essentially bound up with and impeach the title of the plaintiff. - see Meagher Gummow and Lehane, Equity Doctrine & Remedies 3rd Ed (1992) 3709 (h) at 818, Westminister P/C v Skelton [1933] WLR 72; Horrobin v Australian & New Zealand Banking Group Ltd (1996) 40 NSWLR 89 and Lord v Direct Acceptance Corporation (NSWCA, unreported 25 November 1993). The plaintiff referred to NRMA Insurance Ltd v B & B Shipping & Marine Salvage Insurance Pty Ltd (1947) SR (NSW) 273 at 279; Collier v Howard (NSWSC, unreported Dunford J, 23 February 1996) and David v David [1998] NSWSC 3 (4 February 1998). 14 In relation to the unit at Corowa and the retirement village, the defendant stated from the bar table that efforts to buy those properties were unsuccessful because in both cases she was guzumped. There is no evidence to support the defendant's claim that Trevor Wilson has legal title to the property. The defendant alleges that she bought his share. At best, this may amount to an equitable interest in the property. 15 The defendant referred to ss 25N, 25R, and 25U of the Guardianship Act 1987. These sections appear in Division 2 of the Act under the heading "Review and Revocation of Financial Management Orders". They relate to review before the Tribunal and are not relevant to the application before this court. In any event the defendant has unsuccessfully sought review of the management order made by the Board. 16 As none of the matters raised by the defendant in her defence and cross claim impeach the root of title, the plaintiff is entitled to possession of the property. In relation to the defence and cross claim nearly all of the paragraphs are hopeless and should be struck out. Paragraphs (j) and (l) of the cross claim should remain on foot provided that the defendant file and serve an affidavit giving details of the contributions to the improvements of the property and details of Trevor Wilson's alleged interest in the property and the defendant's purchase of his interest within 14 days. If this order is not complied with, the defence and cross claim be struck out by force of this order. 17 Costs are discretionary. Costs should follow the event. The defendant is to pay the plaintiff's costs. 18 I make the following orders: (1) With the exception of paragraphs(j) and (l) the defence and cross claim is struck out. (2) The plaintiff is entitled to possession of the whole of the land comprised in Certificate of Title Folio Identifier 25/23146 being the land situated at and known as 1083 Alamein Avenue Albury in the State of New South Wales. (3) Leave is granted to issue a writ of possession forthwith. (4) The defendant is to file and serve an affidavit giving details of first the contributions to the improvements of the property and secondly, the alleged interest of Trevor Wilson in the property within 14 days. If this order is not complied with, the defence and cross claim are struck out by force of this order. (5) The defendant is to pay the plaintiff's costs. (6) Costs of the proceedings are reserved. ********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.