Case v Frimont

Case [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…

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AGLC
Case v Frimont [2021] NSWCA 30
Case
[2021] NSWCA 30
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute over a residential tenancy agreement. The appellant, Mr Case, claimed to have entered into such an agreement with his uncle, who resided on land forming part of an unadministered deceased estate. The uncle was entitled to a 5/9ths share of the estate. Mr Case later sought to establish a tenancy agreement with the administrator of the estate, appointed eight years after the uncle's death. The primary judge found that no residential tenancy agreement had been entered into.

The central legal issues before the Court of Appeal were whether a residential tenancy agreement could be validly entered into with an "estate" itself, and whether the primary judge erred in finding that no such agreement existed between Mr Case and either his uncle or the subsequent administrator.

The Court of Appeal, comprising Basten, Gleeson and Leeming JJA, affirmed the primary judge's findings. The court reasoned that a residential tenancy agreement requires a landlord and a tenant, and that an estate, being an abstract concept, cannot be a landlord. Furthermore, the evidence did not support the existence of a landlord-tenant relationship with the uncle, nor was there sufficient evidence to establish a formal tenancy agreement with the administrator. The court found no error in the primary judge's factual conclusions.

Leave to appeal was granted, but the appeal was dismissed. Mr Case was ordered to pay Ms Frimont’s costs of the appeal.

Orders

Orders of the court

1. Grant leave to appeal.

2. Appeal dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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