Vescio v Gabb [2007] NSWSC 162

New South Wales Supreme Court

CITATION : Vescio v Gabb [2007] NSWSC 162

HEARING DATE(S) : 01/03/07 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 1 March 2007

DECISION : Application dismissed.

CATCHWORDS : PROCEDURE - Injunctions - Application to restrain the defendant Protective Commissioner from selling a property - Property owned by plaintiff's mother - Her estate administered by the defendant - Order for possession previously made against plaintiff - Whether plaintiff had an equitable interest in the property because he had taken the role of his ill father and made substantial contribution to the family and the property - Whether an order shall be made to reinstate a lapsed caveat over the property - Whether an order shall be made granting the plaintiff reposition of the property

LEGISLATION CITED : Protected Estates Act 1983

CASES CITED : Carmelo Michael Vescio v The Office of the Protective Commissioner, NSWSC, unreported, 20 September 2006

PARTIES : Carmelo Michael Vescio - Plaintiff Ken Gabb - Defendant

FILE NUMBER(S) : SC 1650/07

SOLICITORS : Mr Vescio self represented - Plaintiff Mr C Zucker - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

THURSDAY 1 MARCH 2007

1650/07 CARMELO MICHAEL VESCIO v KEN GABB EX TEMPORE JUDGMENT 1 Before the court is an application by Carmelo Michael Vescio, who appears in person, for a number of orders against the defendant who is the Protective Commissioner under the Protected Estates Act 1983. 2 An injunction is sought restraining the selling of a property at 11 Outlook Drive, Figtree in New South Wales until such time as matters in court, including the District Court, are determined. Secondly, Mr Vescio seeks an order to re-instate the operation of a caveat. Thirdly, he seeks an order extending the operation of the caveat until such time as all outstanding matters are dealt with by the courts. Finally, Mr Vescio seeks an order that he be granted repossession of the property. 3 Mr Vescio lodged a caveat over the property alleging an interest in it arising from services rendered by him over a period of some 51 years. There is before the court a statutory declaration by his mother declaring that Mr Vescio has made a list of contributions towards the family supporting also her late husband during his continuing illness commencing in 1956. His mother has struggled and managed to bring the family through mainly through the assistance of Mr Vescio who has acted and taken the role of his father since he was first hospitalised. 4 On the basis of those contributions, Mr. Vescio claims he has a caveatable interest in the property. 5 A lapsing notice issued with respect to the caveat and it has now lapsed and is no longer on the title to the property, that title being in the name of Mr Vescio's mother. 6 The injunction restraining the selling of the property is equally based upon Mr Vescio's submission that he has an equitable interest in the property. In my view he has not. The mere fact that someone exerts effort and expends moneys with respect to a property does not constitute an equitable interest in it. In my view the injunction is misconceived and that application must fail. 7 Equally the order to re-instate the operation of the caveat and the order extending its operation must fail in the absence of any equitable interest in the subject land. 8 So far as the application to be granted repossession is concerned, the property is managed by the Protective Commissioner as a result of an order of the Guardianship Tribunal. 9 The matter in various ways has been before the courts before. In her reasons for judgment in Carmelo Michael Vescio v The Office of the Protective Commissioner, NSWSC, unreported, 20 September 2006, Latham J set out the history of those various proceedings. 10 Suffice it to say that Mr Vescio had proceedings before the Administrative Decisions Tribunal from which an appeal to the Appeal Panel failed. As her Honour said: "The decision was appealed to the Appeal Panel which subsequently reinforced the decision of the tribunal below with some modifications which are not presently relevant." 11 The matter thereafter came before Windeyer J in the Protective List where Mr Vescio sought to intervene in those proceedings. It was held that he had no standing and the notice of grounds of defence was struck out. Mr. Vescio then appeared before Windeyer J on 19 June 2006 in the common law division when his Honour dealt with a notice of motion filed by Mr Vescio seeking a stay of the proceedings on the former occasion including a stay of orders for possession. Windeyer J took the view that the facts deposed to in the affidavits were irrelevant to the proceedings for possession. No defence had been filed and Windeyer J declined to delay the making of an order for possession. An order was then made. 12 Mr Vescio sought to appeal that decision. An application was made to the Court of Appeal including an application for an extension of time within which to file a holding summons and notice of appeal. The application for extension of time was refused by the Registrar of the Court of Appeal. 13 In August 2006 the matter came before Hoeben J. Affidavits were read on that occasion which included allegations that Mr Vescio had been denied a fair hearing before Windeyer J, allegations that the Protective Commissioner was supervising the estate of his mother in an inefficient and wasteful manner and allegations that in light of the denial of natural justice occasioned to Mr Vescio and his interest in the property the subject of the possession order, that some stay of Windeyer J's orders should be made. Hoeben J determined that none of the matters raised by Mr Vescio provided any basis for a stay of the order for possession made by Windeyer J and the stay was refused. 14 An application for a stay was also refused in subsequent proceedings before Sully J. 15 In my view, the affidavit that has been read by Mr Vescio in support of his application does not provide any basis upon which the order for possession should be overturned, in effect, by my making an order granting him repossession of the property. In the circumstances, Mr Vescio has failed to establish any basis upon which repossession should be awarded to him and I dismiss the summons. As the ordinary rule is that costs follow the event and the summons has been dismissed, I order the plaintiff to pay the defendant's costs. I order that exhibit 2 be returned.