Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Davis v Davis (No 2) [2023] NSWSC 1563 Hearing dates: 11-12 December 2023 Date of orders: 15 December 2023 Decision date: 15 December 2023 Jurisdiction: Equity Before: Elkaim AJ Decision: See paragraph 84
Catchwords: LAND LAW – Torrens title – Exceptions to indefeasibility – Estates and Interests recorded in folio – where the plaintiff and the defendant entered into a deed transferring a property from the defendant to the plaintiff, subject to a life interest in the property which gave the defendant a “right to reside” – whether the deed gave a right of exclusive possession to the plaintiff – where the plaintiff and the defendant had been in a close personal relationship as defined in the Property (Relationships) Act 1984 (NSW) – whether the plaintiff is entitled to an adjustment under s 20 due to monetary and non-monetary contributions to the defendant’s wellbeing and the property.
Legislation Cited: Property (Relationships) Act 1984 (NSW), ss 5, 8, 20
Cases Cited: Calderone v Perpetual Trustees Victoria Ltd [2008] VSC 373
Finlay v Tucker [2015] NSWSC 560
Hatzantonis & Anor v Lawrencecox v Lawrence [2003] NSWSC 914
Texts Cited: Brendon Edgeworth, Butts Land Law (7th ed, 2017, Lawbook Co)
Category: Principal judgment Parties: Paula Jane Davis (Plaintiff)
Victor Bernard Davis (Defendant)Representation: Counsel:
Solicitors:
Mr A Joseph (Plaintiff)
Mr N Bilinsky (Defendant)
Lindeman Lawyers (Plaintiff)
Pigott Stinson (Defendant)
File Number(s): 2021/19641 Publication restriction: Nil
JUDGMENT
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The defendant was born in 1942. His daughter, the plaintiff, was born in 1968. They are now suing each other. The plaintiff’s case is set out in an amended statement of claim filed on 20 October 2022. The defendant’s case is contained in an amended statement of cross-claim filed on 6 December 2022.
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The relief sought by the plaintiff is said to be sanctioned by the Property (Relationships) Act 1984 (NSW) (the Act). Although the defendant also relies upon the Act, it is to a much lesser degree. Rather, his action is derived from his asserted rights under a deed executed by the parties on 24 November 2005.
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The plaintiff relies on the following affidavits:
the plaintiff sworn on 11 January 2021, 18 October 2021, and 16 December 2022 respectively;
Mr Blake Davis-Lynch sworn on 18 October 2021; and
Ms Irene Rowsell sworn on 18 October 2021.
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The defendant relies on the following affidavits:
the defendant sworn on 29 August 2021 and 1 June 2023 respectively;
Mr Brian Crompton sworn on 29 August 2021;
Mr Denis Norman Sutton affirmed on 27 March 2023; and
Ms Wendy Jean Hillery affirmed on 19 April 2023.
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The parties tendered joint expert evidence of property valuations. The defendant tendered separate expert valuation evidence.
A brief background
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There were many facts in dispute between the parties. I do not think the following facts are controversial:
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Three properties feature in the case:
42 xxxxxxx, xxxxxxx;
38 xxxxxxx, xxxxxxx; and
121 xxxxxx, xxxxxxx.
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Macksville and Yarranbella are…
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- AGLC
- Davis v Davis (No 2) [2023] NSWSC 1563
- Case
- [2023] NSWSC 1563
- Decision Date
CaseChat Overview and Summary
The court examined the language of the deed and found that it did not confer a right of exclusive possession to the plaintiff, but rather gave the defendant a right to reside in the property. The court concluded that the deed did not create a tenancy or a lease, but rather a right to reside, which was not equivalent to exclusive possession. The court also considered the relationship between the parties, which was defined as a close personal relationship under the Property (Relationships) Act 1984 (NSW). However, the court found that the plaintiff was not entitled to an adjustment under section 20, as the contributions made by the plaintiff were not sufficient to warrant such an adjustment.
Based on the findings of the court, it was determined that the deed did not give the plaintiff the right of exclusive possession in the property, and the defendant's right to reside in the property remained unaffected. The court did not grant the plaintiff an adjustment under section 20 of the Property (Relationships) Act 1984 (NSW), and no specific orders were mentioned in the provided text. The outcome of the case meant that the defendant continued to have the right to reside in the property, while the plaintiff did not gain any additional rights or entitlements beyond those expressly outlined in the deed.
Orders
Orders of the court
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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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