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Cross v Cross-Boyd

Cross v Cross-Boyd

Case [2021] NSWSC 977 10 August 2021

Leases and Tenancies

Offset

Relief Against Forfeiture

Property Law

Civil Litigation & Procedure

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Cross v Cross-Boyd [2021] NSWSC 977
Hearing dates: 16 & 17 June 2021
Date of orders: 10 August 2021
Decision date: 10 August 2021
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Judgment for the defendant.
(2) The defendant is to pay the plaintiffs’ costs incurred by reason of the amendment to the defence.
(3) Otherwise, the plaintiffs are to pay the defendant’s costs of the proceedings.

Catchwords:
LEASES AND TENANCIES - licences - occupancy fee - right to occupy pursuant to a Deed of Family Arrangement - whether there was a relevant default - whether acceptance of fee after default amounted to waiver - whether payments made by defendant to repair premises entitled her to offset amounts paid against weekly contributions - whether requirement in Notice of Termination that defendant continue to pay occupancy fee until property vacated waived the default – whether defendant entitled to relief against forfeiture – whether relief could be granted where defendant had no proprietary or possessory rights - where defendant’s payments were up to date by time of hearing – where no unconscionability shown - whether occupancy arrangement constituted a residential tenancy agreement – effect of s 119 of the Residential Tenancies Act
CIVIL PROCEDURE – amendment – late application to amend defence – where change of counsel – where new defences raised points of law – where no further evidence required – where no need for adjournment – leave to amend granted

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 58
Residential Tenancies Act 1987 (NSW) s 3
Residential Tenancies Act 2010 (NSW) ss 13, 81, 82, 119
Uniform Civil Procedure Rules 2005 (NSW) r 6.8

Cases Cited:
Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd [2017] NSWSC 1230; (2017) 324 FLR 378
Ayers Rock SkyShip Pty Ltd v Voyages Indigenous Tourism Australia Pty Ltd [2019] NSWSC 828
Byron Bay Retirement Villages Pty Ltd v Zandata Pty Ltd [2008] NSWSC 1123
Case v Frimont [2021] NSWCA 30
Cohen-Hallaleh v Cyril Rosenbaum Synagogue [2003] NSWSC 395
Kay v Playup Australia Pty Ltd [2020] NSWCA 33
Owendale Pty Limited v Anthony (1967) 117 CLR 539; [1967] HCA 52
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55

Texts Cited:
Nil

Category: Principal judgment
Parties: William Patrick Cross (First Plaintiff)
Gregory Thomas Cross (Second Plaintiff)
Virginia Frances Cross -Boyd (Defendant)
Representation:
Counsel:
L Fermanis (Plaintiffs)
N Newton (Defendant)
Solicitors:
Giles Payne & Co (Plaintiffs)
Diamond Conway (Defendant)

File Number(s): 2020/160556
Publication restriction: Nil

Judgment

These proceedings, seeking possession of premises at 16 Flower Street, Maroubra (“the property”), arise out of the Will of the late Horace Sylvester Cross (“the deceased”).
The deceased made his last Will on 17 December 1999. He appointed his wife and his sons William…

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 Cross v Cross-Boyd

Details

AGLC: Cross v Cross-Boyd [2021] NSWSC 977
Case: [2021] NSWSC 977
Decision Date: 10 August 2021

CaseChat Overview and Summary

The appeal before the court involved the parties, Cross (the appellant) and Cross-Boyd (the respondent). The dispute arose from a Deed of Family Arrangement, which granted Cross-Boyd the right to occupy the property in question in exchange for the payment of an occupancy fee. The appellant alleged that the respondent had failed to pay the required fee, and subsequently sought to terminate the arrangement and forfeit the respondent's right to occupy the property. The respondent, however, argued that she had made payments towards the property's repair and maintenance, and that these payments should be offset against the occupancy fee. Furthermore, the respondent claimed that the requirement in the Notice of Termination that she continue to pay the fee until she vacated the property amounted to a waiver of the default.

The court was required to determine several legal issues. Firstly, whether there had been a relevant default on the part of the respondent. Secondly, whether the acceptance of the fee after the default amounted to a waiver of the default. Thirdly, whether the payments made by the respondent to repair the premises entitled her to offset those amounts against the weekly contributions. Fourthly, whether the requirement in the Notice of Termination that the respondent continue to pay the fee until she vacated the property waived the default. Fifthly, whether the respondent was entitled to relief against forfeiture. Sixthly, whether relief could be granted where the respondent had no proprietary or possessory rights. Seventhly, whether the occupancy arrangement constituted a residential tenancy agreement and the effect of section 119 of the Residential Tenancies Act.

The court found that there had been a relevant default on the part of the respondent, as she had failed to pay the occupancy fee for a period of time. However, the acceptance of the fee after the default did not amount to a waiver of the default, as the acceptance was not made in response to a demand for payment. The court also found that the payments made by the respondent to repair the premises did not entitle her to offset those amounts against the occupancy fee, as the payments were made voluntarily and not in response to a demand for payment. The requirement in the Notice of Termination that the respondent continue to pay the fee until she vacated the property did not waive the default, as it was a separate requirement from the payment of the fee. The court further found that the respondent was not entitled to relief against forfeiture, as she had no proprietary or possessory rights in the property. Finally, the court found that the occupancy arrangement did not constitute a residential tenancy agreement, and that section 119 of the Residential Tenancies Act did not apply.

The court granted leave to amend the defence, as the change of counsel and the new defences raised points of law. The court found that no further evidence was required, and that there was no need for an adjournment. The court also found that the respondent's payments were up to date by the time of the hearing, and that no unconscionability was shown. The court did not grant relief against forfeiture, as the respondent had no proprietary or possessory rights in the property. The court found that the occupancy arrangement did not constitute a residential tenancy agreement, and that section 119 of the Residential Tenancies Act did not apply.

Orders