Frimont v Case - [2020] NSWSC 850

Supreme Court

New South Wales

Medium Neutral Citation: Frimont v Case [2020] NSWSC 850
Hearing dates: 23 June 2020
Date of orders: 3 July 2020
Decision date: 03 July 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Without disturbing the occupancy of Mark Frimont, judgment for the plaintiff for possession of the land known as 282 Blaxlands Ridge Road, Blaxlands Ridge, New South Wales, being the whole of the land comprised in certificate of title folio identifier Lot 4 in Deposited Plan 751658.
(2) Leave to the plaintiff to issue a writ of possession to enforce the judgment of the Court.
(3) The defendant is to pay the plaintiff’s costs of the proceedings.

Catchwords:
LAND LAW – possession of land – where plaintiff is administrator of estate and is seeking an order for possession – where a contract for the sale of the land is pending – deceased died intestate – letters of administration taken out but administrator later died – land not transmitted to earlier administrator - where estate has been in limbo unadminstered for many years – deceased’s son remained in occupation of property after deceased’s death - where defendant moved into property to care for deceased’s son – where deceased’s son died - where defendant remained in occupation and commenced to pay portion of property rates – whether a residential tenancy agreement arose between deceased’s son and defendant – whether residential tenancy agreement could be implied between defendant and unadministered estate - where defendant continues to pay rates after plaintiff appointed administrator - whether residential tenancy agreement arose by implication – whether estoppel arose from prior payment of rates – where no evidence that plaintiff knew of payments – plaintiff entitled to possession
LEASE AND TENANCIES – residential tenancy agreements – where land owned by unadministered estate - whether residential tenancy agreement arose by reason of occupation of land by defendant and payment of rates by him – whether subsequently appointed administrator estopped from claiming no residential tenancy agreement existed – where no evidence of acceptance by administrator of payment of rates

Legislation Cited:
Conveyancing Act 1919 (NSW) s 127
Residential Tenancies Act 2010 (NSW) ss 13, 81, 119
Wills, Probate and Administration Act 1898 (NSW) s 61

Cases Cited:
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12
Ermogenous v Greek Orthodox Community of S.A. Inc (2002) 209 CLR 95; [2002] HCA 8
GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973
Spark v Neers [1971] 2 NSWLR 1
Whitlock v Brew (1968) 118 CLR 445

Category: Principal judgment
Parties: Pamela Elizabeth Frimont (Plaintiff)
Donald Bruce Case (Defendant)
Representation:
Counsel:
D Currie (Plaintiff)
J Trebeck (Defendant)
Solicitors:
Payne Ross & Co (Plaintiff)
H Weller (Defendant)

File Number(s): 2020/24814
Publication restriction: Nil

JUDGMENT

The plaintiff, Pamela Frimont, seeks possession of land at 282 Blaxlands Ridge Road, Blaxlands Ridge. The plaintiff is the administrator of the estate of the late Albert Bruce Case (“Albert”) who died intestate…

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 Frimont v Case

Details

AGLC: Frimont v Case [2020] NSWSC 850
Case: [2020] NSWSC 850
Decision Date: 03 July 2020

CaseChat Overview and Summary

In the case of Frimont v Case, the plaintiff, as the administrator of an estate, sought an order for possession of certain land. The dispute arose from a situation where the deceased had died intestate, and a contract for the sale of the land was pending. The deceased's son remained in occupation of the property after the death of the deceased, and the defendant moved into the property to care for the deceased's son. After the deceased's son died, the defendant continued to occupy the property and commenced paying a portion of the property rates. The central legal issues involved whether a residential tenancy agreement had arisen between the deceased's son and the defendant, and whether a residential tenancy agreement could be implied between the defendant and the unadministered estate. Additionally, the court had to determine whether a residential tenancy agreement arose by implication and if estoppel arose from the prior payment of rates, especially since there was no evidence that the plaintiff knew of these payments.

The court examined the circumstances surrounding the occupation of the property and the payments made by the defendant. It held that a residential tenancy agreement did not arise by reason of the defendant's occupation of the land and payment of rates by him. The court further determined that the subsequently appointed administrator was not estopped from claiming that no residential tenancy agreement existed, particularly given the lack of evidence of acceptance by the administrator of the payment of rates. The court emphasised that there was no basis to imply a residential tenancy agreement between the defendant and the unadministered estate. Consequently, the plaintiff was entitled to possession of the property.

In conclusion, the court found in favour of the plaintiff, granting the order for possession sought. The court's decision was based on the absence of any residential tenancy agreement or estoppel arising from the defendant's payments. The final orders of the court confirmed the plaintiff's entitlement to possession of the land, reflecting the legal principles applied in relation to the possession of land by an administrator of an unadministered estate.

Orders