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 the plaintiff is entitled to summary judgment, he must show that there is a clear case against the defendant which she cannot possibly answer: Simon Parsons & Co v Barker [2004] TASSC 135 at par [12] and the cases cited there, Jones v Stone [1894] AC 122; Stephen v Hewett 36/1983; and Australia and New Zealand Banking Group Ltd v Barry [1992] 2 Qd R 12. On the other hand, the defendant has a right to defend herself if there is an issue that ought to be tried; Supreme Court Rules 2000, r 359 (SCR); see also Simon Parsons & Co at [11].

6            On the undisputed facts set out in the affidavit of Ben Goldfinch, affirmed on 4 October 2024, Mrs Vanessa Devlin passed away on 4 December 2021. Her death certificate is annexed to Mr Goldfinch's affidavit. The schedule to the Certificate of Title to 18 Church Street names Kerry Wayne Devlin and Vanessa Joan Devlin as the proprietors of the land. Because there are no words of severance in relation to their interest in the land, they were joint tenants: see Land Titles Act 1980, s 44.

2 No 77/2024

7             It is ancient law that where two persons simultaneously hold an interest in the same parcel of land as joint tenants, each tenant enjoys the right of survivorship so that when one tenant dies, the whole of the estate in the land remains with the survivor: Blackstone, Commentaries Vol II, 182.

8             The Land Titles Act 1980, s 100 operates in a way that upon the death of one joint tenant, the other may apply to the Recorder of Titles to be registered as the proprietor, providing proof to the Recorder's satisfaction of the death of the other joint tenant. That application has not been made in this case. Counsel for the plaintiff indicated that this was because the title could not be located.

9             The plaintiff relied upon the case of McCoy v Estate of Peter Anthony Caelli [2008] NSWSC 986 in support of the proposition that an entitlement by survivorship arises upon death – not upon registration following proof of death to the satisfaction of the relevant authority: at [15]. I accept that is the correct approach. Therefore, upon the death of Vanessa Devlin, the plaintiff became entitled to the whole of the land by way of survivorship. The fact that the plaintiff is not registered as the sole registered proprietor has no relevance to the issues arising on the pleadings. It is unanswerably clear that the plaintiff is entitled to exclusive possession of the property and that he has the authority to demand that the defendant vacate the property. It is also clear that the plaintiff's administrator has the power to deal with the plaintiff's interest in 18 Church Street and to bring these proceedings: Guardianship and Administration Act 1995 ss 56(2)(g) and (l).

10           The defendant's denial of the plaintiff's entitlement to exclusive possession of the property at Church St cannot succeed. The plaintiff's interest as the surviving joint tenant involves a right to the whole of the property and a corresponding entitlement to exclusive possession. The permission granted to the defendant by the late Vanessa Devlin in 2021 ceased to have effect at the time of her death.

11           There is no basis upon which the defendant can successfully maintain that she is a lawful occupier of the property as pleaded at par [7] of her defence. She was issued with a notice demanding that she vacate the premises by 21 March 2024 and she became a trespasser when she failed to comply with that notice.

12           The plaintiff has shown that there is a clear case against the defendant which the defendant cannot possibly answer. There is no issue to be tried, having regard to the defence advanced by the defendant. There will be summary judgment for the plaintiff. I will hear the parties further as to what precise orders should be made.

13           Possession is to be given by the defendant to the plaintiff on or before the 28th day following service of this order by postage or otherwise and where service is effected by post the order shall be deemed to have been served on the sixth business day following the date of posting.

14   The defendant pay the plaintiff’s costs of the action.