Collins, Julie Maree v Collins, David John and Hancock
[2009] VCC 824
•16 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-09-01566
| JULIE MAREE COLLINS | Plaintiff |
| v | |
| DAVID JOHN COLLINS | First Defendant |
| and | |
| PENELOPE HANCOCK | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 May and 10 June 2009 |
| DATE OF JUDGMENT: | 16 June 2009 |
| CASE MAY BE CITED AS: | Collins, Julie Maree v Collins, David John & Hancock, Penelope |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0824 |
REASONS FOR JUDGMENT
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Catchwords: SUMMARY RECOVERY OF LAND – application under Order 53 County Court Civil Procedure Rules 2008– occupation by the defendants with the consent of the plaintiff or pursuant to a licence – consent withdrawn, alternatively licence revoked – judgment for possession pursuant to Order 53.07(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Gillard | Cinque Oakley Senior Lawyers |
| For the Defendants | Mr J Bourke | Fraser, Nevett & Frawley |
| HIS HONOUR: |
Introduction
1 Before the Court is an Originating Motion between parties filed by the plaintiff on 14 April 2009 and a Summons on Originating Motion filed by the plaintiff on 16 April 2009 seeking an order pursuant to Order 53.07 of County Court Civil Procedure Rules 2008 for judgment for possession of land at 108 Water Street, Brown Hill in the State of Victoria (“the property”).
2 Mr D Gillard of counsel appeared for the plaintiff and Mr J Bourke, solicitor, appeared for the defendants.
3 The material upon which the parties relied is as follows:
ƒ an affidavit of the plaintiff sworn 11 May 2009 ƒ an affidavit of the plaintiff sworn 3 June 2009 ƒ an affidavit of the first defendant sworn 14 May 2009 ƒ an affidavit of the first defendant sworn 28 May 2009 ƒ an affidavit of the first defendant sworn 5 June 2009.
The Plaintiff's Life Interest
4 The plaintiff and the first defendant are sister and brother, and are the children of Heather Yvonne Collins, deceased, who died on 23 September 2007.
5 The deceased left a Will, made 27 April 2007, giving the plaintiff a life interest in the property. The relevant part of her Will is as follows:
"I GIVE DEVISE AND BEQUEATH free of duties all my right title and interest in any property being the principal place of my residence at the date of my death together with all furniture and other items of household use or ornament therein to my Trustees UPON TRUST for the use of my said daughter Julie Maree Collins rent-free during her lifetime so long as she shall personally reside therein on the understanding that she shall be responsible to pay all rates and other outgoings and to ensure and maintain such property fair wear and tear excepted and I DIRECT that upon the death of my said daughter Julie Maree Collins or upon her ceasing to personally reside therein such property and contents shall fall into and form part of my residuary estate."[1]
[1] Exhibit “JMC1” to the plaintiff's affidavit sworn 11 May 2009
6 On the death of the deceased, probate of her estate was granted to the plaintiff.[2]
[2] Exhibit “JMC2” to the plaintiff's affidavit sworn 11 May 2009
The Contested Facts
7 The plaintiff lived continuously at the property from the time of her birth, save for two periods when she moved out temporarily at the ages of eighteen and twenty years respectively. At the time when the proceeding was commenced, the plaintiff had lived continuously at the property for sixteen years.
8 The first defendant has lived at the property with the consent of the plaintiff from October 2007 to December 2008. He admitted himself to Beleura Hospital to undergo rehabilitation for alcoholism in December 2008.
9 In January 2009, the first defendant telephoned the plaintiff and asked her to collect him from the Beleura Hospital. According to the plaintiff's account of what then happened, she collected the plaintiff and his girlfriend, the second defendant, and consented to them staying at the property temporarily.
10 The plaintiff alleges that the defendants have remained living at the property and have behaved in a manner inconsistent with the plaintiff's enjoyment of her life interest in the property. Among other things, the plaintiff alleges that the defendants moved a mattress into the lounge room in front of the television where they spend most of their time; they drink alcohol most of the day; they have left the property in a poor state; they have caused cigarette burns on the linoleum and on the carpet and created stains on the carpet; the plaintiff has been the subject of verbal abuse by the second defendant; one of the defendants emptied a box of photographs over the plaintiff’s bed and the plaintiff has observed the defendants watching pornographic material on television.[3]
[3] paragraphs 14-18 of the plaintiff's affidavit sworn 11 May 2009
11 The plaintiff served a Notice to Vacate the premises on the first defendant dated 28 May 2008, which she alleges the first defendant ignored.[4] Subsequently, the plaintiff instructed her present solicitors to write to the defendants requiring them to vacate the property.[5]
[4] Exhibit “JMC3” to the plaintiff's affidavit sworn 11 May 2009
[5] The letters are dated 24 March 2009 - Exhibit “JMC4” to the plaintiff's affidavit sworn 11 May 2009
12 The letters required the defendants to vacate the property within seven days and put the defendants on notice that should they fail to vacate the property that an application would be made to this Court for a writ of possession.
13 The first defendant retained his present solicitors who replied, alleging that the first defendant had resided at the property since the death of the deceased, and otherwise the thrust of the letter seems to be directed to an enquiry about the administration of the deceased's estate. It did not contest the plaintiff's life interest and the allegations she made in the letters sent to the defendants.
14 The first defendant has sworn three affidavits alleging, among other things, that in about early March 2009, the plaintiff vacated the property and moved in with her partner, Ross Barnes, at his property at Canterbury Street, Brown Hill and has not returned to the property. Furthermore, he contested the service of the Notice to Vacate served upon him by the plaintiff, saying that he did not believe that the Notice to Vacate was valid because the plaintiff no longer resided at the property.[6]
[6] paragraphs 8-10 of the defendant’s affidavit sworn 14 May 2009
15 In response, the plaintiff swore a lengthy affidavit on 3 June 2009, essentially saying that she commenced staying overnight with her partner, Ross Barnes, in March 2009 because the defendants’ behaviour had made living at the property unbearable. The plaintiff returned to the property on 31 May 2009.[7]
[7] paragraph 4 of the plaintiff’s affidavit sworn 3 June 2009
16 The first defendant swore an Affidavit in Reply on 5 June 2009, contesting the plaintiff's evidence that she intended to continue living at the property. He referred to a letter written by the plaintiff to him in which the plaintiff said she was considering selling the property. Whilst the letter does say that, it also vents the plaintiff's frustration at the first defendant because of his behaviour and that of the second defendant. Among other things, the plaintiff referred to not being unable to continue living the way that she was living in between two homes, and I infer that she meant living between the property and the property occupied by Ross Barnes.[8]
[8] Exhibit “DJC1” to the defendant's affidavits sworn 5 June 2009
17 A large part of the affidavit material sworn by the plaintiff and the first defendant is devoted to allegations and counter allegations relevant to the conduct of the defendants while living at the property, much of which I consider to be irrelevant to the fundamental matters which I need to consider in determining whether to grant the plaintiff the relief she seeks.
The Submissions
18 Mr Gillard submitted that the plaintiff has always resided at the property and the only reason for the interruption to her has been the conduct of the defendants, who forced the plaintiff to leave the property temporarily between March and 29 May 2009.
19 Mr Gillard submitted that because the plaintiff has a life interest in the property, that she has a legal basis upon which she can assert a right to recover the property pursuant to Order 53.
20 Mr Bourke based his submissions in reply upon the plaintiff's abandonment of her life interest by ceasing to personally reside at the property in preference to living with her partner at his property.
21 Whether the plaintiff is entitled to the relief she seeks depends upon whether she has continued to personally reside at the property consistent with the life interest granted to her by the deceased.
Findings of Fact
22 There is no doubt that the plaintiff was granted a life interest by the deceased “so long as she personally reside[s] …” at the property.
23 A temporary vacation of the property is not inconsistent with personally residing at the property. It occurs to me, that for the plaintiff to succeed she must establish that she temporarily vacated the property for the reasons which she stated in her affidavits, and that she did not intend to relinquish her life interest.
24 After considering the evidence, I have concluded this matter in favour of the plaintiff. My reasons for so concluding are as follows:
• The plaintiff was granted a life interest by the deceased. • She consented to the first defendant residing at the property with her, and also the second defendant, from about January 2009, however, on a temporary basis. • The fact that the plaintiff was prepared to allow the first defendant to reside at the property did not create in the first defendant any legal right to occupation of the property. • The plaintiff had asserted her right to enjoy her life interest in the property to the exclusion of the first defendant when she handed to him a Notice to Vacate in June 2008 which could not have left the first defendant in any state of mind other than that he was to vacate the property. The first defendant admits receiving the letter, but said that it was a letter, amongst others, sent to him by the plaintiff which he says she sent him when she was annoyed with him.[9] • The conduct of the plaintiff in serving the Notice to Vacate and then retaining solicitors who wrote to the defendants amounts to a withdrawal of her consent to the defendant occupying the premises, and if the defendants’ occupation amounted to a licence granted to them by the plaintiff, then a revocation of the licence and an assertion of her legal right to occupy the premises pursuant to her life interest to the exclusion of the defendants. • However, it is clear enough to me that the plaintiff was serious about her intention to have the defendants vacate the property because she took the significant step of retaining solicitors to write to the defendants on 24 March 2009, which happens to be contemporaneous with the time when she left the property to stay with her partner. • I accept the plaintiff’s evidence that the reason she left the property was because she could not tolerate the conduct of the defendants, and therefore, I reject the evidence of the first defendant that the plaintiff, by her conduct, had evinced an intention to relinquish her life interest in the property. [9] Paragraph 4 of the first defendant’s affidavit sworn 28 May 2009
Orders 25 Order 53.01(1) is in the following terms:
"Subject to paragraph (2), this Order applies where the plaintiff claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff's licence or consent or that of any predecessor in title of the plaintiff."
26 Given the findings of fact which I have made, and based upon the fact that the plaintiff has a life interest in the property, I find that any consent given by the plaintiff for the defendants to reside at the property or any licence for them to do so has been withdrawn and revoked, which entitles the plaintiff to judgment for possession pursuant to Order 53.07(1).
27 Therefore, the plaintiff shall have judgment for possession of the land described in the Originating Motion as 108 Water Street, Brown Hill in the State of Victoria.
28 I consider that the plaintiff is entitled to costs; however, I will hear the parties on the question of costs and the form of the order.
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