Bernhardt v Bernhardt - [2019] NSWSC 1632

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bernhardt v Bernhardt [2019] NSWSC 1632
Hearing dates: 21 November 2019
Date of orders: 21 November 2019
Decision date: 21 November 2019
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Judgment for the plaintiff for possession of the land described in Folio Identifier Lot 1 Strata Plan 53223, being the land situated at and known as xxx xxxxx xxxxx, Forster in the State of New South Wales.

(2) Grant leave to issue a writ of possession forthwith.
(3) Order the defendant to pay the plaintiff's costs of the proceedings.
Catchwords:
LAND LAW – Torrens title – Indefeasibility of title – registered proprietor entitled to possession
LAND LAW – Conveyancing – Requirements of writing – Creation or disposition of interest in land – defendant a bare licensee
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Conveyancing Act 1919 (NSW), ss 23C, 23D
Real Property Act 1900 (NSW), s 42
Uniform Civil Procedure Rules 2005 (NSW), rr 29.7, 42
Cases Cited: Cowell v Rosehill Racecourse Company Limited (1937) 56 CLR 605; [1937] HCA 17
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Category: Principal judgment
Parties: Barbara Ann Bernhardt (Plaintiff)
Kim Bernhardt (Defendant)
Representation:
Counsel:
H Woods (Plaintiff)
Solicitors:
Pryor Tzannes & Wallis

File Number(s): 2019/147373
Publication restriction: Nil

Judgment

Introduction

Barbara Bernhardt (the plaintiff) is the registered proprietor of a property at Forster (the Property). She no longer lives in the Property and presently lives in an aged care facility. She is 86 years old. One of her daughters, Kim Bernhardt (the defendant), remains in residence of the Property, notwithstanding several requests by the plaintiff and her solicitors that she vacate the Property. The plaintiff has commenced these proceedings to obtain vacant possession of the Property so that it can be sold to meet various expenses she has incurred, including for her present accommodation. At the conclusion of the hearing I made the following orders in favour of the plaintiff: first, judgment for possession of the Property; second, leave to issue a writ of possession forthwith; and third, that the defendant pay the plaintiff’s costs. I indicated that I would provide reasons in due course. My reasons for making the orders are as follows.

The course of the proceedings

Because the defendant did not appear at the hearing on 21 November 2019 and, during the course of the hearing, sent an email to this Court seeking to explain her absence, it is necessary to set out the history of this matter in some detail.
The proceedings were commenced by statement of claim filed on 10 May 2019. The defendant filed a defence on 7 June 2019 in which she alleged that there was a “private agreement” between herself and the plaintiff “concerning the [Property]”, as a consequence of which she disputed the plaintiff’s claim for possession. When the matter came before Lonergan J for directions on 25 June 2019, the plaintiff was represented…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bernhardt v Bernhardt

Details

AGLC: Bernhardt v Bernhardt [2019] NSWSC 1632
Case: [2019] NSWSC 1632
Decision Date: 21 November 2019

CaseChat Overview and Summary

The case of Bernhardt v Bernhardt involved the parties, Bernhardt as the plaintiff and Bernhardt as the defendant. The dispute centred around the rights of possession and ownership of a property under Torrens title. The court was required to determine whether the registered proprietor, the plaintiff, was entitled to possession of the property and whether the defendant, who claimed to have an interest in the property, was indeed a bare licensee without a legal interest. The case was heard in the Supreme Court of New South Wales.

The primary legal issues the court had to address were the indefeasibility of the plaintiff's title under Torrens title law and the requirements for the creation or disposition of an interest in land. Specifically, the court needed to determine if the defendant's claim to a possessory interest in the property could override the plaintiff's registered title and whether the defendant's status as a bare licensee precluded them from asserting any legal rights to the property. The court also had to consider the principles of conveyancing, particularly the necessity of written documentation for the creation or disposition of an interest in land.

In its decision, the court found that the plaintiff's title was indeed indefeasible under Torrens title law. The court held that the plaintiff, as the registered proprietor, was entitled to possession of the property. The court further determined that the defendant did not hold a legal interest in the property, as they were merely a bare licensee. The court reasoned that the defendant's claim to a possessory interest did not satisfy the statutory requirements for creating or disposing of an interest in land, as there was no written documentation to support such a claim. The court emphasised that without a written agreement, the defendant could not assert any possessory rights that would override the plaintiff's registered title.

As a result of the court's decision, the plaintiff was granted an order for possession of the property, and the defendant's claim was dismissed. The court ruled that the plaintiff's indefeasible title was paramount, and the defendant's status as a bare licensee did not entitle them to any legal interest in the property.

Orders