Brikcius v Brikcius

Catchwords: LAND LAW – possession of land – where plaintiff as registered proprietor had permitted son to occupy premises – where attorneys under power of attorney brought proceedings – where challenge to right of attorneys to bring proceedings - where the registered proprietor required possession of the property to meet ongoing expenses – reliance by defendant on promise to leave property to him in plaintiff’s will – no defence to claim for possession

Legislation Cited: Nil

Cases Cited: Nil

Texts Cited: Nil

Category: Principal judgment

Parties: Mirjana Brikcius (Plaintiff)
Daniel Brikcius (Defendant)

Representation: Counsel:
T To (Plaintiff)
No appearance (Defendant)
Solicitors:
North Herring Lawyers (Plaintiff)
Self-Represented (Defendant)

File Number(s): 2024/155175

Publication restriction: Nil

Judgment

1. The plaintiff is the registered proprietor of Unit 3, 115 New South Head Road, Vaucluse (“the Vaucluse Property”). She is also the mother of the defendant who resides in the property and has done so since about September 2002.

2. The plaintiff brings these proceedings by her tutors who are her other sons, Benjamin and Martin. They are the attorneys under an Enduring Power of Attorney given by the plaintiff on 9 June 1997. The Power of Attorney appointed Benjamin, Martin and Daniel as attorneys of the plaintiff but by a Deed of Revocation dated 12 April 2013 the plaintiff revoked Daniel’s appointment.

3. The Power of Attorney authorised her attorneys to do on her behalf anything that she could lawfully do by an attorney but clause 6 provided that the attorneys’ power to manage her property and money came into effect only while she is incapacitated.

4. A report dated 9 November 2015 from Dr Mary Ann Kulh, who is the plaintiff’s treating geriatrician, said this:

She has a diagnosis of Alzheimer’s type dementia confirmed on Mini-Mental State Examination testing with a score of 22/30. She has significant episodic memory and acalculia.

She has an existing Enduring Power of Attorney that appoints her two sons, Ben and Martin Brikcius. I have found that Mirjana lacks decision-making capacity with regards to her finances, personal affairs and health. As such the Enduring Power of Attorney should be enacted from this date.

5. On 8 July 2024 a report from the plaintiff’s general practitioner, Dr Fleur Paterson, said this:

I referred Mirjana for geriatric assessment and she was seen by Dr Maryann Kuhl on 2/8/2015 when a formal diagnosis of Alzheimer’s disease was made. Mirjana has been treated with medication for her Alzheimer’s disease since 2015 and as expected her cognition has slowly declined and continues to decline. The assessment of her geriatrician on 29/10/2015 was that her enduring power of attorney should be activated at that time.

Mirjana does not have capacity for decision making in regard to her affairs, whether in regard to medical decisions, living arrangements or financial decisions. She has not had capacity since October 2015.

6. The proceedings seek possession of the Vaucluse Property. The basis for that claim is simply that the plaintiff is the registered proprietor and is, accordingly, entitled to possession of the property. The reason that possession is now being sought concerns the costs of the plaintiff’s care which greatly exceeds any income that the plaintiff has.

7. The plaintiff was born in February 1937. She is now aged 88 years. She lives at a house in Lyons in the Australian Capital Territory (“the Canberra Property”). Although she needs care morning and night seven days a week because she is not involved outside of her home, cannot shop or prepare meals for herself, cannot transport herself and requires full support with domestic assistance, personal care and social support, she does not wish to be put in a nursing home. Her sons Benjamin and Martin have agreed to that (as has Daniel) but that comes at a significant cost. There is evidence from Annecto who provide her with care, of the costs of that care. She receives a Home Care Package but that does not cover all of the costs. The plaintiff is required to pay a difference of $427 per week, amounting to $22,204 per annum.

8. The plaintiff is a self-funded retiree and receives a Commonwealth Superannuation pension of $1,450.60 per fortnight, amounting to $37,716.60 per annum net of tax. An affidavit from Benjamin says that there is a significant deficit of approximately $34,000.00 per annum between the plaintiff’s pension income and the expenses necessary to maintain the Vaucluse Property, the Canberra Property and to fund the necessary care for the plaintiff. He says that the deficit is being met by Martin and him. In addition, he says it is likely that the Canberra property will require some renovations to ensure the plaintiff can live there as long as possible. Those renovations will include changes to make the property more disability-accessible. He understands the likely cost of that will be in the order of $45,000.

9. The defendant is currently unrepresented. He has not appeared this morning. I am satisfied from the affidavits of Joseph Khoury sworn 9 April 2025 and Ashli Gouzvaris sworn 10 April 2025 that he was given notice of the hearing.

10. His solicitor, Paul Williams of P Williams and Company Lawyers, who had acted from the outset of the proceedings ceased to act on 25 February 2025. He did so in circumstances set out in an email he sent to the Court on 5 March 2025 as follows:

1. I have not received any instructions from Mr Daniel Brikcius since prior to Christmas.

2. He has not responded to any communication from myself by way of either mail, email, SMS or telephone.

3. I have spoken with his GP on several occasions who has similarly been unable to contact him.

4. In late-September 2024 I also filed a Notice of Ceasing to Act in similar circumstances. As it transpired, I had not heard from Mr D Brikcius due to his chronic anxiety and depression, and his GP later advised by way of letter that Mr Brikclis (sic) had suffered a severe reactive depressive episode and was immobilised with fear and anxiety. This was attributed to these proceedings. The contents of that letter were raised with the Court on a previous occasion further to instructions from Mr D Brikicius (sic) who was present, and the information is not. subject to privilege.

5. It is not unreasonable in the circumstances to infer that Mr D Brikcius has suffered a further episode that has “immobilised” him.

6. I otherwise confirm that the parties attended an "informal settlement conference" on 13 November 2024 and reached an in principle agreement as to the resolution of this matter. Unfortunately since then contact with Mr Birkicius (sic) was initially sporadic and subsequently non-existent.

11. While Mr Williams acted for Daniel, he filed an Amended Defence. The defence admitted those parts of the statement of claim which pleaded that the tutors were the sons and attorneys of the plaintiff, that the defendant is the son of the plaintiff, that in about September 2002 the plaintiff became the registered proprietor of the Vaucluse Property, that the plaintiff resides in Lyons and obtains in-home care at significant ongoing cost, that the plaintiff by her attorneys had required the defendant to vacate the Vaucluse Property and that he had refused to do so.

12. The defence then went on to say this:

2. In answer to paragraph 2 of the claim, the Defendant does not admit that the author of the "Expert Report" (given as "Particulars") was the treating geriatrician of the Plaintiff and notes that the report is dated 9 November 2015. The Defendant admits that the Plaintiffs capacity to make decisions as to her finances, personal affairs and health is variable, depending on her general health. The Plaintiff is able to clearly express her opinions and wishes on these (and other) matters in a reasoned way and does so.

3. In answer to paragraph 5 of the claim, the Defendant admits he has resided in the Vaucluse property since about September 2002 but says this residency was not merely permitted by the Plaintiff, but was an arrangement requested by the Plaintiff. The Defendant has resided at the Vaucluse property at the request of the Plaintiff from on or about 1993, initially to look after the Plaintiff's mother (the Defendant's grandmother), and thereafter to occupy and maintain the Vaucluse property for the Plaintiff.

The Defendant resides at the Vaucluse Property in accordance with the wishes of the Plaintiff who has had regard for his personal circumstances, and as expressed by the Plaintiff. The attorneys are not taking into account the Plaintiffs wishes and preferences with regard to the management of her affairs.

4. In answer to paragraph 7 of the claim and to the whole of the claim, the Defendant denies that the Plaintiff has herself made any determination to sell the Vaucluse property and further denies that sale of the Vaucluse property is necessary to provide sufficient funds for the Plaintiff to meet her day to day living and care costs or for any other reason pertinent to the Plaintiff.

It is not necessary for the tutors and attorneys to sell the Vaucluse Property to meet the expenses of the Plaintiff and the expenses can be met by means other than seeking possession of the property for the purposes of sale.

5. The motivation for the action of the tutors and attorneys is to remove the Defendant, their brother, from the Vaucluse property, despite the express and repeated wish of the Plaintiff that the Defendant should continue to live in the Vaucluse property, which the Plaintiff has told the Defendant she has left him by her will, so that sale of the Vaucluse property will cause that gift to fail.

The tutors and attorneys are not acting in accordance with the wishes of the Plaintiff, are exceeding their mandate as attorneys, and are not acting in good faith, in seeking possession for the purposes of sale.

13. The underlined portions of the Amended Defence were added in the light of inquiries made by Faulkner J at a judicial directions hearing on 15 October 2024 about the earlier form of the defence (the non-underlined portions) and clarifications made by Mr Williams in response to his Honour’s inquires.

14. The defendant filed and served an affidavit in support of his defence. Notwithstanding his non-appearance, I have taken into account what appears in that affidavit. The defendant says that from time to time he has paid expenses on the Vaucluse Property and he lists a number of those that he has being able to identify from documents. He sets out conversations with his mother where she allegedly told him that he could remain living at the Vaucluse Property and that she had left that property to him in her Will because she had left the Canberra Property to Benjamin and Martin.

15. The defendant says also that he is the recipient of a Centrelink Disability Benefit due to a diagnosis of severe depression and anxiety which has made it not possible for him to work any longer in full-time employment. He said:

In recent weeks [the affidavit was sworn on 23 October 2024] these proceedings have triggered an episode of severe reactive depression. I was unable to communicate with my solicitor and was immobilised as a result of the fear and anxiety I was experiencing.

That is corroborative of what the solicitor said in his email to the Court of 5 March 2025.

16. The defendant also said this:

[30] I have also considered the financial circumstances of Mirjana as asserted in Bejamin’s affidavit. To the extent that those matters are supported by annexed documentary evidence I do not dispute the costs, and insofar as some costs are estimates, in the absence of any evidence to the contrary I am unable to dispute those costs and accept them as estimates.

[31] I accept that there is a shortfall between Mirjana’s income and expenditure of approximately $34,000 per annum. There is no annexure to Benjamin's affidavit providing a record of Mirjana’s income.

…

[38] … Given my current circumstances I am unable to assist Benjamin and Martin in meeting any shortfall, and I agree that it is unfair for them to meet any shortfall.

17. The defendant then proposed that, rather than the Vaucluse Property be sold it should be rented, and he estimates that it could be rented at between $700 and $1,000 per week. He annexes a letter from an estate agent who manages the adjoining property in Vaucluse. The estate agent estimated that the Vaucluse Property could obtain a rent of $700 to $750 per week in its present condition, but should it be renovated the agent believed it could attract a rental of $950 to $1000 per week. The defendant says that he will then move in to live with his mother in her Canberra home.

18. It is clear, therefore, that Daniel does not oppose an order for possession of the property.

19. Paragraph 2 of the Amended Defence appears to challenge the right of the attorneys to bring the proceedings, presumably, based on what clause 6 provides and whether that condition has been established.

20. Clause 6 provides:

My attorney’s or attorneys’ power to manage my property and money comes into effect

* only while I am incapacitated.

21. The plaintiff was psychologically assessed by Mr Tom Sutton, psychologist, on 6 August 2024. As a result of the assessment Mr Sutton concluded as follows:

(a) The plaintiff’s current level of verbal reasoning compared to others her age without disease is at the 1st percentile which is exceptionally low;

(b) Fluid intelligence (the capacity to think logically and solve problems in novel situations, independent of acquired knowledge) is low average for her age;

(c) Recall of rote or factual verbal information is absent;

(d) She is amnestic. There is no consolidation (the transfer of information from short to long-term memory);

(e) In relation to a visual recognition memory task, compared to her age group she is 6 standard deviations below the norm (worse than 99.99%) which is highly significant;

(f) She has a pronounced severe amnestic disorder with associated general decline in reasoning functions. As she has a neurodegenerative disease, she will continue to decline further;

(g) She is fully incapacitated in her decision making. She is unable adequately to reason or recall information.

22. I am satisfied from the evidence of Dr Kulh, Dr Patterson and Mr Sutton that the plaintiff has been incapacitated since 2015 and continues to be incapacitated. In those circumstances, the attorneys under the Enduring Power of Attorney had the power to bring these proceedings and have the power to maintain the proceedings.

23. What is contained in paragraphs 3, 4 and 5 of the amended defence asserts that the attorneys are not taking into account and acting on the plaintiff's wishes, and that it is not necessary to sell the Vaucluse property to meet the plaintiff's expenses because they can be met by other means.

24. In the circumstances where the plaintiff is incapacitated and the attorneys are given power under the Power of Attorney to do anything that she could lawfully do, the defendant is not able to challenge the decision of the attorneys to bring the present proceedings whether or not what they seek to achieve can be brought about by other means more favourable to the defendant.

25. There is no evidence that the attorneys are not acting in good faith, as is asserted. Daniel acknowledges their need to act to enable them to meet the plaintiff’s expenses.

26. The plaintiff is the registered proprietor of the property and, subject to any right of the defendant to retain possession of the property, is entitled to an order for possession. Neither the defendant’s amended defence nor anything in his affidavit provides any basis to show that the defendant has a right to remain in possession of the property.

27. The plaintiff seeks an order that the defendant pay an occupation fee of $700.00 for every week or part thereof that the defendant occupies the property after the date judgment is given for possession. The plaintiff leads no evidence of what a reasonable rent for the property would be. Coincidentally, as I noted earlier, the defendant annexes to his affidavit a letter from an estate agent indicating that a fair rent for the property in its present condition would be $700.00 to $750.00 per week. That letter postdated the filing of the statement of claim by almost six months.

28. The evidence shows that the plaintiff was content for the defendant to occupy the property rent free. There is evidence that the defendant has met a number of the outgoings on the property. The proceedings were not commenced for some 12 months after letters requiring the defendant to vacate were served. There is no explanation for the delay.

29. In my opinion, there is no basis for ordering the defendant to pay an occupation fee for residing in the premises subsequent to any judgment being given. Leave will be granted to the plaintiff to issue a writ of possession that can be executed in six weeks of the order for possession being made.

30. Accordingly, I make the following orders:

31. Judgment for the plaintiff for possession of the land contained in folio identifier 3/SP10375 and known as Unit 3, 115 New South Head Road, Vaucluse, New South Wales.

32. Leave to the plaintiff to issue a writ of execution, such writ not to be executed before 22 May 2025.

33. The defendant is to pay the plaintiff’s costs of the proceedings.

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