Davis v Davis (No 2) - [2023] NSWSC 1563

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
Jurd v Public Trustee [2001] NSWSC 632

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:
Mr A Joseph (Plaintiff)
Mr N Bilinsky (Defendant)
Solicitors:
Lindeman Lawyers (Plaintiff)
Pigott Stinson (Defendant)

File Number(s): 2021/19641
Publication restriction: Nil

JUDGMENT

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.
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.
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.

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.

The parties tendered joint expert evidence of property valuations. The defendant tendered separate expert valuation evidence.

A brief background

There were many facts in dispute between the parties. I do not think the following facts are controversial:
Three properties feature in the case:

42 xxxxxxx, xxxxxxx;

38 xxxxxxx, xxxxxxx; and

121 xxxxxx, xxxxxxx.

Macksville and Yarranbella are…

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 Davis v Davis (No 2)

Details

AGLC: Davis v Davis (No 2) [2023] NSWSC 1563
Case: [2023] NSWSC 1563
Decision Date: 15 December 2023

CaseChat Overview and Summary

The case of Davis v Davis (No 2) involved a dispute between the plaintiff and the defendant over the ownership and rights associated with a property. The matter was heard and determined in a relevant Australian court, whose name is not specified in the provided text. The central issue in this case was whether the deed executed by the parties created a right of exclusive possession in the plaintiff, or if it merely provided the defendant with a right to reside in the property. Additionally, the court had to decide whether the plaintiff was entitled to an adjustment under section 20 of the Property (Relationships) Act 1984 (NSW) due to the monetary and non-monetary contributions made by the plaintiff to the defendant's wellbeing and the property.

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