Case v Frimont

[2021] NSWCA 30

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Case v Frimont [2021] NSWCA 30

Hearing dates:

2 March 2021

Decision date:

11 March 2021

Before:

Basten JA at [1];
Gleeson JA at [2]:
Leeming JA at [3].

Decision:

1. Grant leave to appeal.

2. Appeal dismissed.

3. Mr Case to pay Ms Frimont’s costs of the appeal.

Catchwords:

LANDLORD AND TENANT - residential tenancy agreement - long term occupation of land in unadministered deceased estate - whether appellant entered into residential tenancy agreement with uncle who was in residence and entitled to 5/9 of estate - whether residential tenancy agreement can be with “estate” of deceased - whether appellant entered into residential tenancy agreement, 8 years later, with newly appointed administrator of deceased estate - no error in primary judge’s finding that no residential tenancy agreement entered into - appeal dismissed

Legislation Cited:

Conveyancing Act 1919 (NSW), s 127

Probate and Administration Act 1898 (NSW), s 61

Residential Tenancies Act 2010 (NSW), ss 3, 7, 8, 13, 81, 119, Pt 5

Supreme Court Act 1970 (NSW), s 101

Wills, Probate and Administration Act 1898 (NSW), s 50(a)

Cases Cited:

Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32

Cohen-Hallaleh v Cyril Rosenbaum Synagogue [2003] NSWSC 395

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Horton v Jones (1935) 53 CLR 475; [1935] HCA 7

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Re Clover [1919] NZLR 103

Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410; [1997] HCA 36

Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100

Category:

Principal judgment

Parties:

Donald Bruce Case (Appellant)
Pamela Elizabeth Frimont (Respondent)

Representation:

Counsel:
H Weller, solicitor (Appellant)
M Einfeld QC, D Currie (Respondent)

Solicitors:
Herbert Weller (Appellant)
Paine Ross & Co (Respondent)

File Number(s):

2020/209108

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 850

Date of Decision:

03 July 2020

Before:

Davies J

File Number(s):

2020/24814

Judgment

1. BASTEN JA: I agree with Leeming JA.

2. GLEESON JA: I agree with Leeming JA.

3. LEEMING JA: The appellant, Mr Donald Bruce Case, and the respondent, Ms Pamela Elizabeth Frimont, are nephew and aunt. In 2018, the latter became administrator of the intestate estate of the late Albert Bruce Case, who had died in 1968. He was her father, and the appellant’s grandfather. The estate remains unadministered. The only asset of the estate is a large parcel of Torrens title land at Blaxlands Ridge, part of which has been occupied by the appellant for more than a decade. The primary judge gave judgment for possession against the appellant and in favour of the respondent. Although long term occupation of land in an unadministered estate can give rise to a multiplicity of legal issues, those arising on this appeal are narrowly confined to whether the primary judge erred…