Taunton v Taunton [2019] NSWSC 1513

Supreme Court New South Wales

Medium Neutral Citation: Taunton v Taunton [2019] NSWSC 1513 Hearing dates: 4 November 2019 Date of orders: 04 November 2019 Decision date: 04 November 2019 Before: Slattery J Decision: Judgment for possession entered. Writ for possession to be issued on 12 December 2019. Injunctions continued. Order for costs up to today against defendant. Catchwords: LAND – judgment for possession – father is registered proprietor of land – seeks possession of land from son who is in occupation – father acts by another son (and the other son's wife) as attorneys – notice to quite given – whether son is trespasser – defences to action for possession – whether defences made out – discussion of the issue of a writ for possession. Legislation Cited: Legal Aid Commission Act 1979, s 57 Uniform Civil Procedure Rules 2005, r 6.8 Category: Consequential orders (other than Costs) Parties: Plaintiff: John Eric Taunton Defendant: Daniel Taunton Representation: Counsel: Plaintiff: A. Hopkins

Solicitors: Plaintiff: Rebecca Campbell, Aubrey Brown Lawyers Defendant: in person, Kerry Anne Knibbs File Number(s): 2019/153609 Publication restriction: No

EX TEMPORE Judgment 1. John Taunton has two sons, Gregory Taunton and Daniel Taunton. Gregory Taunton is married to Joanna Taunton. John Taunton is 82 and needs full-time nursing care. He presently resides in a nursing home on the Central Coast. Gregory Taunton moved his father into that nursing home in May, 2018 from his home at Wamberal ("the Wamberal property") on the Central Coast. Daniel Tauntion, the defendant, presently occupies the Wamberal property. John Taunton now seeks, and his son resists, judgment for possession of the Wamberal property. 2. The parties to these proceedings are all from the one family. They referred to one another in evidence by their first names. Without intending any disrespect to any of them, for convenience in these reasons, the Court will also use their first names. 3. Long before going into the nursing home, in anticipation of a decline in his capacities, in 2010 John entered into an enduring Power of Attorney; giving a power of attorney jointly to Gregory, to Daniel and to Joanna. John now brings these proceedings by his attorneys. A majority of them, namely Greg and Joanna, resolved to commence them against Daniel. 4. Today the Court held a final hearing on the issues raised in the Statement of Claim and the Defence. 5. John is represented in the proceedings by Mr A. Hopkins, of counsel, instructed by Aubrey Brown, solicitors. At today's hearing, Mr Hopkins was present during most of the day until lunch time. The plaintiff was represented by Ms R. Campbell from Aubrey Brown, this afternoon. 6. The defendant, Daniel, represented himself. At the opening of proceedings today, he requested the assistance of a McKenzie friend to assist him. The Court has a broad discretion to allow an unrepresented person to be assisted by someone in that role, provided it will promote the better administration of justice. 7. Daniel Taunton nominated Ms Kerrie Ann Knibbs to be his McKenzie friend. Ms Knibbs agreed to this role. And, if I may say so, she discharged it very effectively to assist Mr Daniel Taunton. It need not be discussed in any detail in these reasons, but Daniel Taunton indicated to the Court that he had a disability which made it more efficient and convenient for the smooth flow of his case to have assistance from a McKenzie friend. Given her professional background, Ms Knibbs was an excellent presenter on his behalf. With her assistance the case was able to be run efficiently, more or less within the allocated time.