New South Wales Supreme Court CITATION : Petronaitis v Petronaitis [2008] NSWSC 798 HEARING DATE(S) : 31 July 2008 JUDGMENT DATE : 7 August 2008 JURISDICTION : Common Law JUDGMENT OF : Harrison AsJ (1) The amended defence dated 24 June 2008 is struck out. DECISION : (2) A stay of proceedings is refused. (3) I enter judgment that the plaintiff have possession of the property as described in paragraph (1) of the statement of claim. (4) The defendant is to pay the costs of both motions. CATCHWORDS : Strike out defence, stay of proceedings CATEGORY : Principal judgment PARTIES : Kay Petronaitis by her tutor Michael Victor Petronaitis (Plaintiff) Dalia Petronaitis (Defendant) FILE NUMBER(S) : SC 14665/2007 COUNSEL : P Jeffriess (Plaintiff) SOLICITORS : Everingham Solomons (Plainitff) John Samuel Sheehy (Defendant) LOWER COURT JURISDICTION : Guardianship Tribunal LOWER COURT FILE NUMBER(S) : C/33754; 2008/155 LOWER COURT JUDICIAL OFFICER : Tribunal Members Hopkins, Stone & Newman LOWER COURT DATE OF DECISION : 8 January 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST ASSOCIATE JUSTICE HARRISON THURSDAY, 7 AUGUST 2008 14665/2007 - KAY PETRONAITIS by her tutor MICHAEL VICTOR PETRONAITIS v DALIA PETRONAITIS JUDGMENT (Strike out defence, stay of proceedings) 1 HER HONOUR: There are two motions before the Court. Firstly, by notice of motion filed 24 June 2008 the defendant seeks and order that the proceedings be stayed pending the hearing and determination of the defendant's application to revoke a financial management order made in the Guardianship Tribunal on 8 January 2008, file No c/33754, matter No 2008/155; and secondly, by notice of motion filed 1 July 2008, the plaintiff seeks an order that the amended defence filed in Court on 24 June 2008 be struck out or in the alternative, that summary judgment be entered in favour of the plaintiff. 2 The plaintiff is Kay Petronaitis by her tutor Michael Victor Petronaitis. The defendant is Dalia Petronaitis. The plaintiff relied on three affidavits of Michael Petronaitis dated 2 August 2007, 29 April 2008 and 23 July 2008 and three affidavits of his solicitor John McCallum Boyd Boag dated 2 August 2007, 29 April 2008 and 25 July 2008. The defendant relied on the affidavit of her solicitor John Samuel Sheehy dated 23 June 2008 and her affidavit dated 30 July 2008. Mrs Kay Petronaitis and her daughter were present in Court at the hearing of these motions. 3 Michael and John Petronaitis are the sons of Kay Petronaitis. The defendant, Dalia Petronaitis, is the plaintiff's daughter. The plaintiff is the registered proprietor of land at Bronte described in Certificate of Title Folio Identifier 12/1087188. From 2003 until early 2007, the defendant lived with her mother in the premises at Bronte. In early 2007, the plaintiff moved into a nursing home. 4 By amended defence filed 24 June 2008, the defendant pleads firstly, that the plaintiff, having sufficient mental capacity, has indicated to the defendant that she wishes to again occupy the premises with the defendant; and secondly, that the defendant claims a right of occupation to the home during protected person's lifetime granted orally to her by the protected person, which the protected person intends to grant in writing. The defendant's solicitor rightly conceded that at best this defence could amount to an equitable interest that does not give the defendant the right to possession of the property. The orders of the Guardianship Tribunal 5 There have been two applications determined by the Guardianship Tribunal, the first one on 19 June 2006 and the second one on 9 January 2007. 6 On 26 April 2006, a social worker Ms Kate Daley brought an application before the Tribunal concerning Kay Petronaitis. Mrs Petronaitis was then 87 years old. Ms Daley informed the Tribunal that Mrs Petronaitis had severe arthritis, was frail, bed bound, unable to care for herself and had mild cognitive impairment. The plaintiff's disability had been noticed over six years but was deteriorating. Ms Daley said that there had been a four year history of service providers trying to assist Mrs Petronaitis and her daughter/carer Dalia. Dalia had consistently refused any help but was finding the situation increasingly difficult and that Mrs Petronaitis had very unrealistic expectations of Dalia. 7 Ms Daley stated that attempts had been made to resolve the problems and offered community options, joint care planning, an ACHA worker with ARV (Tony Flinn); offers of CACP and Home Care. All of these services were refused by Dalia. With respect to financial management Ms Daley stated that a financial manager was needed because Dalia had access to her mother's bank account as Mrs Petronaitis was unable to go to the bank. Dalia was consistently short of money but very private about where the money went. Ms Daley stated that there had been attempts to resolve the problems with budgeting plans, referral to St Vincent de Paul and assistance from carer respite. 8 Dr Jahromi, Fellow in Geriatric Medicine War Memorial hospital, gave evidence as did Mrs Petronaitis, her two sons and her daughter, Dalia. 9 The house on the property, the subject of these proceedings is and remains in a very poor state of repair and squalid (see photograph reproduced on page 4). 10 At page 11 the Tribunal dated 19 June 2006 in its reasons for decision stated: "CONCLUSION AND THE TRIBUNAL'S REASONING Guardianship – Disability and Incapacity determined The Tribunal had regard to all the evidence, both written and oral including the evidence of Kay Petronaitis and the oral evidence about disability and incapacity given by Dr Jahromi at the hearing. The Tribunal found that Kay Petronaitis had a cognitive disability. When the Tribunal spoke to Kay Petronaitis she was unable to explain the reasons for her major decisions. She gave direct responses and dealt with minor matters quite easily. She was fixated upon her daughter providing care for her and being with her all the time; and that she not go to a nursing home. She also emphasised that she wanted privacy and she did not want anyone else involved. That evidence given by Kay Petronaitis was consistent with the opinion given by Dr Jahromi about the cognitive disability of Kay Petronaitis. The Tribunal observed throughout the hearing that Kay Petronaitis was very dependent on her daughter, Dalia Petronaitis and would not make decisions independently from her daughter. The Tribunal was satisfied upon all the evidence that Kay Petronaitis cannot make life decisions due to that cognitive disability." 11 So far as an appointment of a guardian was concerned, the Tribunal had this to say: " Appointment of a guardian The Tribunal was satisfied that Kay Petronaitis required a guardian because she could not reason that facts and circumstances involved in determining whether or not she required service providers. She was adamant that she did not require service providers as did her daughter. She was equally adamant that her daughter should be providing care to her 24 hours, 7 days a week. She had no insight into the level of the squalor of the home and indeed denied that there was any squalor. The Tribunal rejected that opinion which was also advanced by her daughter, Dalia Petronaitis; preferring the evidence of the applicant, Dr Jahromi and the sons. The Tribunal was not satisfied that Dalia Petronaitis could be appointed as a guardian. Her denial of the state of repair and cleanliness of the home and her self interest for financial reasons in not wanting service providers showed she was not able to bring independently informed decision making to the role of guardian." 12 On 19 June 2006, John Petronaitis was made interim guardian of the plaintiff. 13 On 9 January 2007, at the second application, evidence was given to the Tribunal that: "At the time of this hearing Kay Petronaitis was staying at Amity Nursing Home. Michael Petronaitis stated that it seemed to have good effect on Kay Petronaitis as she had been able to have quite a lucid conversation with him when he spoke to her and asked about his children. In previous conversations Kay Petronaitis had not asked any questions and appeared blunted in her effect. The Director of Nursing at Amity Nursing Home, Larissa O'Donnell, stated that Kay Petronaitis was quite settled and doing quite well. She was very reluctant to be involved in activities but she stated that the diversional therapies had worked better than other strategies and she would come out of her room to listen to some music and involve herself in other matters. Larissa O'Donnell stated that Kay Petronaitis enjoyed talking to staff, Michael Petronaitis explained that this was not surprising given that Kay Petronaitis had been a nurse. Larissa O'Donnell stated that she had been at Amity Nursing Home in the past when Kay Petronaitis had been there for respite visits and she had noticed a difference this time in that Kay Petronaitis was more settled. She stated that staff had had a conversation in which Kay Petronaitis stated that she rather liked living there." 14 On 9 January 2007, the Tribunal made a financial management order. It is as follows: "the estate of Mrs Kay Petronaitis be subject to management under the provisions of the Protected Estates Act 1983; and the manager of Mrs Petronaitis's estate be Mr Michael Petronaitis, of xxxxxxxx, subject to such conditions, including the giving of security, as the Protective Commissioner considers appropriate." 15 On 20 March 2007, Michael Petronaitis reported to the office of the Protective Commissioner that the only real estate that Mrs Petronaitis owned was her home at Bronte. She received the aged pension of approximately $13,000 per annum and as at that date, her known debts were in excess of $8,000. Mrs Petronaitis's expenses as at 9 May 2007 were, nursing home fees of $17,300 per annum; future Council rates and insurance bills approximately $3000 per annum; extra fees as required for transport to medical and dental appointment; and reasonable costs for clothing, medicines and other living expenses. 16 On 21 May 2007, the office of the Protective Commissioner directed and authorised to Michael Petronaitis to bring legal proceedings against the defendant in order to obtain vacant possession of the plaintiff's property at Bronte. 17 On 29 June 2007, the plaintiff's solicitors wrote to the defendant demanding that she vacate the premises or make suitable arrangements to do so. To date the defendant remains in occupation of the premises. 18 On 12 September 2007, the plaintiff filed a statement of claim seeking judgment for possession of the land and leave to issue a writ of possession forthwith. On 7 January 2008, the statement of claim was served upon the defendant. 19 On 8 January 2008, the defendant lodged an application in the Tribunal seeking to revoke a financial management order. The reasons she wanted the order revoked was "abuse of role". Other than those three words there was no evidence or particulars given of this allegation. From 8 January 2008 to date nothing has been done to progress the application. The day before the hearing in this Court, the plaintiff was assessed as to her mental capacity on 30 July 2008. The results are not as yet known. The defendant wishes that her mother transfer to her a life interest in the property so she can care for her mother at home. The defendant says that this is what her mother wants. Where or not the plaintiff is able to enter into that arrangement depends on whether she has the mental capacity to make that decision. 20 The defendant has recently instructed a solicitor to represent her. Her solicitor has put her case at its highest to this Court. The defendant's solicitor submitted that a stay should be granted until the defendant's application in the Guardianship Tribunal is determined. It was submitted that firstly, the document "Appointment of an enduring Guardian" has not been considered by the Tribunal; secondly, if it transpires that despite the earlier findings by the Tribunal, that the plaintiff has mental capacity to make lifestyle decisions, she (the plaintiff) may lodge her own application before the Tribunal; and thirdly, the transfer document may be signed by the plaintiff. 21 I accept that at the earlier Tribunal hearings, the document "Appointment of an enduring guardian" dated 2 December 2004 had not been produced by Dalia. In that document Kay appointed her daughter, Dalia as her guardian and authorised her firstly, to decide where she lived but in this regard she specifically stated that she did not wish to be placed into a nursing home because she wanted her guardian to look after her; secondly to decide what health care she should receive; and thirdly, what other kinds of personal services she received. 22 The defendant owns her own property in the Blue Mountains. It is subject to a mortgage. I accept that if the property at Bronte is sold, should the defendant or her mother's application be successful in the Tribunal, the plaintiff would no longer be able to live in her own home. However, there was evidence given in the Tribunal that the plaintiff was happy in the nursing home. Given the defendant's reluctance to accept community services, the frail state of her mother and the condition of the house the chances of the defendant or her mother being successful in revoking the earlier orders of the Tribunal are most unlikely. It is my view that the interests of justice require that a stay or proceedings, in these circumstances be refused. 23 Costs are discretionary. Costs usually follow the event. The defendant has been unsuccessful in both motions. The defendant is to pay the costs of both motions. The Court orders (1) The amended defence dated 24 June 2008 is struck out. (2) A stay of proceedings is refused. (3) I enter judgment that the plaintiff have possession of the property as described in paragraph (1) of the statement of claim. (4) The defendant is to pay the costs of both motions. ********** 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.