Taunton v Taunton [2020] NSWCA 197

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Taunton v Taunton [2020] NSWCA 197 Hearing dates: 26 August 2020 Date of orders: 26 August 2020 Decision date: 28 August 2020 Before: Basten JA; McCallum JA Decision: (1) Refuse the application for leave to appeal and dismiss the summons in matter 2020/148465. (2) Dismiss the motion filed on 19 May 2020. (3) Make no order as to the costs in the proceedings in this Court. Catchwords: APPEALS – leave to appeal – orders for possession of real property – family dispute – property owned by father – order for possession obtained against defendant son in occupation – proceedings commenced by defendant's brother under power of attorney – leave sought to challenge execution of power of attorney – issue not raised below – grounds not addressing correctness of the decision below – orders executed – only payment of costs order outstanding – futility of appeal REAL PROPERTY – orders for possession – family dispute – property owned by father – order for possession obtained against son in occupation – son had been caring for father – possession sought to sell property to pay for nursing home fees – son alleged representation by father that he could remain in occupation during father's life Category: Procedural and other rulings Parties: Daniel Clint Taunton (Applicant) John Eric Taunton (Respondent) Representation: Applicant self-represented Gregory Taunton and Joanna Taunton as tutor for John Eric Taunton File Number(s): 2020/148465 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2019] NSWSC 1513 Date of Decision: 4 November 2019 Before: Slattery J File Number(s): 2019/153609

[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.]

Judgment 1. THE COURT: The applicant, Daniel Clint Taunton, has sought leave to appeal from a judgment of Slattery J in the Equity Division given on 4 November 2019. [1] At that time, the applicant was living in a home owned by his father at Wamberal on the Central Coast. His father, John Eric Taunton, had been admitted to a nursing home in May 2018. His affairs are being managed by the applicant's brother, Gregory John Taunton and his wife, Joanna Taunton, pursuant to an enduring power of attorney executed by the father in 2010. The applicant is also party to the power of attorney, but his view as to his father's needs may be (and is being) overridden by the majority view of his brother and Ms Joanna Taunton. 2. The applicant's entitlement to remain in the home was the subject of the proceedings below, in which the father sought possession of his property. The judge understood the applicant's case to rest upon a representation that he would be allowed to stay in the property in exchange for his services in caring for his aged parents. (His mother died some years ago.) On the basis that such a representation was established, the judge nevertheless held that there was no evidence to support a right of occupation after his father left the property to be cared for in a nursing home. There appears to have been some evidence that the applicant expended money on the property, but again the judge was not satisfied that any such expenditure was undertaken in reliance on a representation that he would have a right of occupation during his father's lifetime. [2] 3. On the other hand, the primary judge was affirmatively satisfied that it was in the father's interest that the home be sold. The father was not able to meet the ongoing expenditure and upkeep of the property, and had significant liabilities and expenses to meet with respect to his stay in the nursing home. [3] The judge concluded that the property should be sold as the father, through his attorneys, proposed. That in turn justified an order that the applicant give possession of the property for the purposes of sale. Accordingly, the judge gave judgment for possession and ordered that a writ of possession issue on 12 December 2019. An interlocutory order made on 28 August 2019 restrained the applicant from removing any chattels or fixtures from the property; further orders were made on 22 November 2019 to allow the applicant to remove his personal property between 12 December and 31 January 2020. The applicant was ordered to pay the costs of the proceedings up to 4 November 2019. 4. Neither the summons seeking leave to appeal, nor the draft notice of appeal contain any clear statement as to the proposed grounds on the basis of which error might be detected in the judgment of the primary judge. Further, the summons was not filed until 19 May 2020, six months after the judgment in the Equity Division. However, the summons contained a handwriting statement which may be understood as setting out the proposed grounds, which read as follows: "(i) My father, John E Taunton invited me to live permanently at [the Wamberal home] in 2014 and I moved there in 2015. (ii) I was both his dependant (son) and carer for over two years registered with Human Services at that address. (iii) Aubrey Brown met with my brother prior to my father's diagnosis with dementia. And further initiated him as a client then voted him as 'tutor' all without my inclusion. (iv) NSW Police are investigating the POA and EG documents as fraudulent." 1. No material has been filed in this Court by the applicant, other than his summons, draft notice of appeal, a copy of the judgment and a notice of motion. The Court does not have a copy of the evidence before the primary judge, nor the transcript of the hearing. No written submissions have been filed in support of the application for leave to appeal. Nevertheless, the applicant has sent a number of emails to the Registry which he has asked to be referred to the Court hearing the application. There is no purpose in recounting the contents of those documents except to say that they identify concerns held by the applicant as to the manner of execution of the enduring power of attorney and with respect to proceedings which have occurred in the Civil and Administrative Tribunal (NCAT), apparently in relation to a guardianship order with respect to the father. (The documents executed in 2010 included both an "enduring power of attorney" and "appointment of enduring guardian".) The complaints in this regard are intended to relate to grounds (iii) and (iv) set out above, but they do not provide a basis for doubting the correctness of the orders made by the primary judge. 2. In oral submissions the applicant reiterated his belief that the documents upon which his brother and his brother's wife relied to make decisions with respect to their father's health and property had in some way been manipulated after he had signed them. In response to the suggestion that no such case had been run before the primary judge, the applicant stated that he had obtained a pro bono lawyer to run the case on that basis but the lawyer had declined to act in the absence of any material substantiating such a claim. There was no material before this Court which would have substantiated such a claim. In any event, the issue was not raised below and leave should not be granted to allow it to be raised for the first time on appeal. 3. Two affidavits have been filed in the proceedings, one by Ms Joanna Taunton (dated 7 August 2020) and other by the applicant's brother, Gregory Taunton (dated 17 July 2020). They purport to be filed on behalf of the father, who is the respondent to the application, but for whom no appearance has been filed. The affidavits were not included in the white folder. According to Gregory Taunton's affidavit, the applicant left the property on or around 15 April 2020. The affidavit set out expenses incurred in preparing the property for sale. Ms Joanna Taunton states in her affidavit that a sale of the property has been negotiated and contracts were exchanged on 28 July 2020. 4. Although the summons seeking leave to appeal is, absent a notice of intention to appeal, five months out of time, the applicant states that a notice of appeal was initially lodged on 20 January 2020, without appreciating that leave was required. No such notice was filed. He may have been referring to a notice of motion signed on that date but not in fact filed until 19 May 2020. It sought 14 orders, apparently consequential on the appeal being allowed, but contained no grounds of appeal. 5. The first ground proposed in the summons relates to the representation which was the subject of the proceedings below. As has been noted, the primary judge rejected it as providing a basis for a defence against the order for possession. 6. Proposed ground (ii) is also an issue which was agitated below and formed the basis upon which the trial judge understood that the representation was based on the applicant's role as his father's carer. As already noted, the judge's conclusion was that this did not provide a basis for finding an entitlement to remain on the property after the father proposed to sell it. 7. Grounds (iii) and (iv) address the challenges the applicant seeks to make to the execution of the enduring power and the enduring appointment of guardian. Ground (iii) relates to the involvement of Aubrey Brown, as the solicitors appointed by Gregory Taunton and his wife. These are not matters which arise for consideration on appeal from the judgment for possession. 8. In oral submissions the applicant variously expressed the views that (i) were his father able to act for himself, he would not have sought to eject the applicant from the family home; (ii) there was no need to sell the family home in order to obtain funds to look after his father and, to the extent that existing funds had been depleted, they had been depleted by expenditure on the litigation; and (iii) although his brother and sister-in-law purported to act pursuant to a majority clause in the enduring power of attorney, that clause could not operate until there had been a meeting at which the various options were discussed and no unanimity achieved. 9. With respect to (i), speculation as to his father's wishes provided no basis for refusing the relief sought on behalf of his father and constituted a weaker version of the claim based on a representation. With respect to (ii), the judge was satisfied (to the extent that he needed to be) by the evidence presented on behalf of the father that there was a financial imperative to sell the home, without having regard to the costs of the litigation. With respect to (iii), it was entirely clear from the vigorous disputation visible throughout the litigation that there was no unanimity amongst the three holders of the power. It would have been a mere formality to hold a meeting in order to demonstrate the need to rely upon the majority clause. In any event, no such point was raised below. 10. Finally, in response to questions from the Bench as to the purpose of the proposed appeal, in circumstances where effect had been given to the orders made by the primary judge, the applicant was only able to identify the order that he pay the costs as an outstanding matter which he sought to challenge. However, the costs order readily followed the outcome of the unsuccessfully defended proceedings. If the substantive orders were not to be set aside, there would be no basis to challenge the costs order. No special order was sought from the primary judge and it is by no means obvious that any other order would have been appropriate to meet the outcome of the case. 11. In these circumstances, no sufficient doubt is raised as to the correctness of the judgment in the Equity Division. Accordingly, the application for leave to appeal must be refused. 12. The father has not filed a notice of appearance and does not have legal representation. In the circumstances, no order should be made as to the costs in this Court. 13. At the conclusion of the hearing the Court made the following orders: 1. Refuse the application for leave to appeal and dismiss the summons in matter 2020/148465. 2. Dismiss the motion filed on 19 May 2020. 3. Make no order as to the costs in the proceedings in this Court.

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Endnotes 1. Taunton v Taunton [2019] NSWSC 1513 ("primary judgment"). 2. Primary judgment at [51]. 3. Primary judgment at [47]-[48]. 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. Decision last updated: 28 August 2020