Re JA and JM [2012] NSWCA 309

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Re JA and JM [2012] NSWCA 309 Hearing dates: 21 September 2012 Decision date: 21 September 2012 Before: Campbell JA Decision: (1) Direct that the name of the file be anonymised and that the matter be known as Re JA and JM (2) Order that the oral application made by Ms A be dismissed. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Legislation Cited: Contracts Review Act New South Wales Trustee and Guardian Act 2009 Category: Interlocutory applications Parties: Ms A (Applicant) VJ (First Respondent) MJ (Second Respondent) Representation: Solicitors: In person, ex parte (Applicant) File Number(s): 2012/296779 Decision under appeal Date of Decision: 2012-09-20 00:00:00 Before: Nicholas J File Number(s): 2012/83305

Judgment 1CAMPBELL JA: This is an application for urgent ex parte relief concerning a decision of Nicholas J given yesterday. An order was made in the court below that the title of these proceedings be anonymised. I make a similar order concerning these proceedings. The applicant, who I will refer to as Ms A, is a daughter of "JA" and "JM". 2The proceeding that Nicholas J dealt with yesterday was a notice of motion that Ms A had filed on 20 September 2012. It sought an order pursuant to s 41 of the New South Wales Trustee and Guardian Act 2009 that the Court appoint the New South Wales Trustee and Guardian as financial manager of the estates of her parents. It also sought an order that an auction of a particular property in Zetland be "cancelled" and that any future sale of the property be handled by the New South Wales Trustee and Guardian. 3The property in Zetland is one that had been the home of Ms A's parents. They no longer live there, as they are living in a retirement village. The property was one in which Ms A and some children of which she had the care once lived, but she informs me that she no longer lives there. 4The brother and sister of Ms A are VJ and MJ. They were appointed, she tells me, as attorneys for her parents, under enduring Powers of Attorney. She informs me that at a stage earlier this year, MJ resigned from the office of attorney, at a time when MJ was seeking to purchase the house. Ms A also tells me that MJ has since purported to regain the office of attorney. 5The way in which all this has happened is not particularly clear, as the only evidence before me is an affidavit of Ms A of 20 September 2012, that states conclusions, without providing the kind of basis for them that would ordinarily be required by the rules of evidence. I have also been provided with a transcript of yesterday's proceedings. Even if it is right, as Ms A contends, that MJ is no longer entitled to act as her parents' attorney, there is no similar problem about the power of VJ to act for them. 6There was a dispute between Ms A and her brother and sister about the proposed sale of the property to MJ. That dispute came to be settled pursuant to consent orders made on 22 March 2012 by White J. Pursuant to those orders, the contract for sale of the Zetland property was rescinded by mutual agreement. It was also agreed that the property would be placed on the market by way of public auction at a time to be mutually agreed upon by VJ and MJ (though MJ was referred to by her married name), but not before 15 August 2012. Ms A agreed to provide vacant possession before completion of the sale. 7The property is due to be auctioned tomorrow. Ms A tells me that she has only recently discovered that the Contracts Review Act provides for the Court to have power to make orders that modify in various respects, low doc loans, and that in her view, the circumstances in which her parents entered into a loan secured over the property should be looked into. She tells me that her sister's husband acted in relation to the mortgage transaction in question. 8When the matter was before Nicholas J yesterday, the order that he made was to stand the proceedings over to the registrar's list for further directions at 9am on 16 October 2012. Ms A had submitted to him that she wanted to stop the auction, and by making the order he did, his Honour at least implicitly, declined to restrain the auction. He stated, in the course of the hearing, that he was not going to restrain the auction. 9The orders that Ms A seeks from the Court on an ex parte basis, are that I order that the decision of Nicholas J be vacated, order the appointment of the New South Wales Trustee and Guardian as financial managers of the estate of her parents, and make an order requiring the auction of the Zetland property scheduled for tomorrow be delayed to a time to be fixed by the New South Wales Trustee and Guardian. 10The rights that Ms A seeks to enforce in the present proceedings are not her own: her sole concern is to protect her parents' position. I will deal with the substance of her application without enquiring about her standing to bring it. 11The concern that Ms A has is that if the auction goes ahead, the mortgage will be paid out, and then it will be much more difficult to claim relief from the mortgagee once the sale has gone through. 12It is not in my view, appropriate to grant any of the relief that is sought. The auction has been planned for some time. No evidentiary basis has been put before me to suggest that there is a real case for review of the mortgage under the Contracts Review Act. Indeed, Ms A's contention is that that question has not even been looked at, and that it should be. 13Before a court grants interlocutory relief, it is necessary that it be satisfied that there is a serious question to be tried. I am not, on the material now before me, satisfied that there is a serious question to be tried about whether there is any basis for the mortgage to be set aside under the Contracts Review Act. In saying that, I recognise that further investigation might possibly show that there is such a basis, but today I cannot say that there is one. 14As well, even if there were to prove to be a basis for relief under the Contracts Review Act, s 14 of that Act provides: "The Court may grant relief in accordance with this Act in relation to a contract notwithstanding that the contract has been fully executed." 15Thus, even if the mortgagee were to be paid out, it might still be open, if somebody else were to be appointed as financial manager of her parents' estate, for there to be a claim made to recover money that should not have been paid. It is not necessary for me to rely on that ground, however, as the lack of a serious question to be tried about relief under the Contracts Review Act provides a sufficient basis. 16Ms A informs me she is ready to give an undertaking as to damages, if an injunction were to be granted. However, when the relief that she seeks should not be granted it is not necessary to seek such an undertaking. 17It is also important that the relief that Ms A seeks is interlocutory relief, sought in proceedings begun by a summons seeking leave to appeal from Nicholas J's order. To grant interlocutory relief in support of a summons seeking leave to appeal, it is necessary to be satisfied that the application for leave to appeal itself has sufficient prospects of success. It is very difficult to reverse on appeal an interlocutory decision of a primary judge concerning a question of practice and procedure. A decision about whether to adjourn proceedings, or not to adjourn them, is quintessentially a matter of practice and procedure. For that reason also, I would not grant the relief that is sought. 18This matter has come before me without the filing of any separate notice of motion in the Court of Appeal, so there is no formal process to dismiss. While Ms A tells me that she has left messages for her brother and sister to tell them of the present application, they have not appeared. There is no basis for believing they have incurred any costs. In the circumstances, all that is necessary to do by way of orders is to order that the oral application that Ms A has made to me be dismissed.