Edlington v Howe

[2017] NSWSC 1715

Supreme Court

New South Wales

Medium Neutral Citation:

Edlington & Anor v Howe & Anor [2017] NSWSC 1715

Hearing dates:

7 December 2017

Date of orders:

07 December 2017

Decision date:

07 December 2017

Jurisdiction:

Equity - Duty List

Before:

Kunc J

Decision:

Orders for possession made

Catchwords:

REAL PROPERTY – licences – termination - possession

Category:

Principal judgment

Parties:

Noel Edlington (First Plaintiff)
Lois Lorraine Edlington (Second Plaintiff)

  Stuart Howe (First Defendant)
Linda Hurley (Second Defendant)

Representation:

Counsel:
D.P. O’Connor (Plaintiffs)

 

Solicitors:
Duncan Maclean & Associates (Plaintiffs)

  S. Howe in person (First and Second Defendant)

File Number(s):

2017/366315

Publication restriction:

No

EX TEMPORE Judgment

1. This is an application by the plaintiffs (Mr and Mrs Edlington) for orders requiring the defendants (Mr Howe and Ms Hurley) to vacate possession of that part of Mr and Mrs Edlington's property currently occupied by the defendants and three demountable buildings owned by the defendants. Mr D P O’Connor of Counsel appeared for the plaintiffs. There was no objection to Mr Howe appearing for himself and Ms Hurley.

2. Mr and Mrs Edlington own a farming property near Tamworth (the “Property”). They are in their seventies and in poor health. They wish to sell the Property and move closer to town because of their increasing medical and other needs. Mr and Mrs Edlington have found a purchaser for the Property. That purchaser is not prepared to exchange contracts for sale unless and until the defendants have vacated the Property.

3. The central question in this case is upon what terms are the defendants occupying part of the Property?

4. It is unnecessary for me, particularly given the constraints of the duty list, to set out the evidence in detail. It is indisputable that the defendants have a licence rather than a lease. The nub of the dispute between the parties was whether that licence was terminable at will (as Mr and Mrs Edlington contend) or whether it was for a 12 month term (as the defendants contend).

5. In the events which have happened and as a matter of practicality, it is not necessary for the Court to come to a definitive conclusion as to the answer to that question. That is because, on the defendants' case, the licence (albeit in their evidence referred to as a "lease") was for 12 months commencing on 21 February 2017. That is to say, even on the defendants' case, they have no right to continue to occupy the Property after 21 February 2018.

6. On the other hand, on Mr and Mrs Edlington's case, the licence has been terminated by the giving of notice. However, even if they are correct in that conclusion and, therefore, entitled to an order for possession against the defendants the Court would, in the exercise of its discretion, afford several weeks to the defendants before they would be required by court order to vacate the Property. It is obvious that they need time to find alternative accommodation and somewhere to take their demountable houses. On that view of the case and given the time of year, the Court would be disposed to give the defendants some time until early February to vacate the Property.

7. Insofar as the position of the purchasers of the Property is concerned, the executed contract for sale of the Property which is in evidence before me (but not yet exchanged for the reasons I have referred to in paragraph [2] above) provides for settlement of the sale to take place "on or before three months after the contract date". That means that, even if the contracts for sale were exchanged today, the contract might not be completed until well into March 2018.

8. By reason of the preceding considerations the Court is satisfied that Mr and Mrs Edlington are on any view entitled to orders for possession, such orders to take effect after 21 February 2018.

9. Mr Howe, who has appeared for himself and his partner and who has explained to the Court that he is both destitute and a bankrupt, has accepted that, even on his case, they do not have an entitlement to occupy the Property after 21 February 2018. He has assured the Court that he understands the effect of the orders which the Court will make. He has also told the Court that he understands that if, contrary to his assurances to the Court and the Court’s orders, he and his partner remain in possession with their demountables on the Property after 21 February 2018, they will be liable to be removed by the police or the sheriff forthwith after that date. The Court impresses upon Mr Howe the importance of making appropriate arrangements so that his possessions, demountables and all other items which he has brought on to the Property are removed on or before 21 February 2018.

10. The only other matter is the question of costs. Mr and Mrs Edlington seek their costs. Mr Howe has resisted that on the basis that he says he made many efforts to attempt to have the matter mediated or otherwise resolved without the need to come to court. That may be true, but the usual principle remains that costs should follow the event. Even allowing for the fact that Mr Howe and his partner have not been legally represented, it seems to me that the usual rule should apply.

11. I asked Mr Howe whether, at any time, he had offered in terms to vacate the Property by a particular date rather than just telling Mr and Mrs Edlington that he was "trying to leave the Property". Mr Howe accepted that at no time had he actually offered to leave the Property by a particular date. In those circumstances the Court is satisfied that costs should follow the event and an order to that effect will be made.

12. The formal orders of the Court are:

1. On or before 21 February 2018 the first and second defendants yield up vacate possession of the Property known as XXX.

2. On or before 21 February 2018 the first and second defendants remove the three relocatable buildings, which they have currently placed on the Property referred to in order 1.

3. Leave is granted to the plaintiffs for a writ for possession of the Property forthwith, such writ to lie in the Registry up to and including 20 February 2018.

4. The defendants are to pay the plaintiffs' costs of the proceedings.

5. Liberty to any party to apply on 24 hours’ notice to the Duty Judge in relation to the working out of these orders.

6. These orders be taken out forthwith.

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Decision last updated: 08 December 2017