Cross v Cross-Boyd

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.