Hardie v Parsons
[2021] VSC 816
•10 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2021 02651
| CHRISTINE ANNE HARDIE | First Plaintiff |
| BARBARA JEAN KING | Second Plaintiff |
| v | |
| KATHLEEN LORRAINE PARSONS | Defendant |
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JUDGE: | Matthews AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 November 2021 |
DATE OF JUDGMENT: | 10 December 2021 |
CASE MAY BE CITED AS: | Hardie & Anor v Parsons |
MEDIUM NEUTRAL CITATION: | [2021] VSC 816 |
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SUMMARY RECOVERY OF LAND – Application under Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 – Proprietary estoppel - Allegation by Defendant of life estate held on constructive trust – Whether readily and fairly dealt with in summary procedure – No basis for proprietary estoppel – Whether contractual licence validly terminated or bare licence revocable at will – Licence revoked – Appropriate to grant order for possession.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms J Zhou | T F Grundy Lawyer |
| For the Defendant | Ms P A Neskovcin QC |
TABLE OF CONTENTS
Material................................................................................................................................................ 1
Background and Evidence................................................................................................................ 2
Principles and Issues......................................................................................................................... 9
Submissions...................................................................................................................................... 11
Plaintiffs’ Submissions............................................................................................................... 11
Ms Parsons’ Submissions........................................................................................................... 14
Consideration.................................................................................................................................... 15
Proprietary estoppel................................................................................................................... 15
Termination of Licence............................................................................................................... 19
Conclusion......................................................................................................................................... 22
HER HONOUR:
This is an application by the Plaintiffs for summary recovery of land at 125 Cambridge Crescent, Wyndham Vale, 3024, more particularly described in Certificate of Title Volume 09248 Folio 546 (the ‘Property’), pursuant to Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’).
For the reasons which follow I am satisfied that the Plaintiffs are entitled to recover the Property from the Defendant and that orders should be made pursuant to Order 53 of the Rules.
Material
The Plaintiffs’ application was made by Originating Motion dated 28 July 2021 (‘Originating Motion’). In support of the Originating Motion, the Plaintiffs have filed the following material:
(a) Affidavit of Christine Anne Hardie affirmed 5 July 2021 and exhibits thereto (‘First Hardie Affidavit’);
(b) Affidavit of Christine Anne Hardie affirmed 29 October 2021 and exhibits thereto (‘Second Hardie Affidavit’);
(c) Affidavit of Barbara Jean King affirmed 8 November 2021 (‘King Affidavit’); and
(d) A written outline of submissions dated 29 October 2021 (‘Plaintiff’s Written Outline’).
The Defendant has filed the following material in response to the Originating Motion:
(a) Affidavit of Kathleen Lorraine Parsons affirmed 14 October 2021 and exhibits thereto (‘Parsons Affidavit’); and
(b) a written outline of submissions dated 29 October 2021 (‘Defendant’s Written Outline’).
At the hearing of the Originating Motion on 18 November 2021, the Defendant sought leave to cross-examine the Plaintiffs on their affidavits. Leave to cross-examine was granted on the basis that the Plaintiffs also have leave to cross-examine the Defendant on her affidavit. Evidence given by the parties on cross-examination is recorded in the transcript of the hearing (‘Transcript’).
I have had regard to all of the above material, the oral evidence, and to the supplementary oral submissions made by the parties at the hearing.
Before addressing the Plaintiff’s application, I note that Ms Neskovcin QC appeared for the Defendant, and prepared the Defendant’s Written Outline, in a pro bono capacity through the Open Justice Project, assisted by Mr Daniel Hicks, a law student at Monash University. The Court thanks both Ms Neskovcin QC and Mr Hicks for their assistance in this proceeding.
Background and Evidence
The Plaintiffs are the joint registered proprietors of the Property.[1] The First Plaintiff, Ms Hardie, is the half-sister of the Defendant, Ms Parsons. The Second Plaintiff, Ms King, is their mother.[2] Ms Parsons has been in possession of the Property since November or December 2014, shortly after it was purchased by Ms Hardie and Ms King.[3] Ms Parsons is now 66 years old and has been supported by the Disability Support Pension at all relevant times.[4]
[1]Exhibit “CH-1” to the First Hardie Affidavit.
[2]First Hardie Affidavit, [1], [4].
[3]First Hardie Affidavit, [10].
[4]Parsons Affidavit, [1].
The parties appear to agree that Ms King and Ms Parsons began inspecting properties for purchase by Ms King in or around June or July 2014, and that Ms Hardie later became involved after she was informed by Ms King that Ms King could not afford a suitable property by herself.[5] However, Ms Parsons disputes knowing about Ms Hardie’s involvement as joint proprietor of the Property until much later, either on 2 March 2021 or in May 2021.[6] Ms Hardie and Ms King agreed that Ms Parsons could live in the Property, and the parties all agree that the Property was purchased with Ms Parsons’ occupation in mind[7] – though, as will become clear, the extent to which this was the case is in dispute.
[5]Parsons Affidavit, [10]–[13]; Second Hardie Affidavit, [4]; King Affidavit, [3].
[6]Parsons Affidavit, [15], [32] and [34].
[7]In respect of Ms Hardie, see First Hardie Affidavit, [6]; Second Hardie Affidavit, [13]; Transcript 32.23‑27; in respect of Ms King see King Affidavit, [3]; Transcript 19.30-31; in respect of Ms Parsons see Parsons Affidavit, [9]–[11].
According to Ms Parsons, in or about 2014 and prior to the purchase of the Property, Ms Parsons told Ms King that she was upset and stressed about money and about her living arrangements. Ms Parsons says that Ms King told her that Ms King would buy a house and that Ms Parsons ‘can live in it for the rest of [her] life.’[8] Ms Parsons says that she and Ms King began looking for a house for Ms Parsons to live in, including by contacting a real estate agency in Werribee by the name of Brian Mark Real Estate and inspecting houses together. Ms Parsons says that at one such inspection Ms King told a real estate agent that they were ‘looking for a house for [Ms King’s] daughter.’[9]
[8]Parsons Affidavit, [9].
[9]Parsons Affidavit, [10].
Ms Parsons says that Ms Hardie was later informed that Ms Parsons and Ms King were looking for a property for Ms Parsons, that Ms Hardie joined Ms Parsons and Ms King in two property inspections, and that on one such occasion Ms Hardie asked Ms Parsons whether she would ‘like this [property] for the rest of [Ms Parsons’] life.’[10]
[10]Parsons Affidavit, [11]–[13].
According to Ms Parsons, on more than one occasion before she moved into the Property, Ms King repeated that Ms Parsons could live there for the rest of her life. Ms Parsons says that that she was assured that Ms King would not ‘throw [Ms Parsons] out’ if Ms King and Ms Parsons were to have an argument. Ms Parsons says that Ms King first told her that, when Ms Parsons died, the Property would go to surviving family members.[11] Ms Parsons says that she was later told that the house was to go to Ms Hardie and Ms Hardie’s daughters on Ms Parsons’ death.[12]
[11]Parsons Affidavit, [17].
[12]Transcript 62.23–31.
Ms Parsons says that she had inquired into accommodation assistance with the Uniting Church in Werribee, and had ‘started to look into public housing’, prior to being told that she could live in the Property for the rest of her life. Ms Parsons says that she then abandoned these inquiries because of Ms King’s promise.[13]
[13]Parsons Affidavit, [19].
Ms King denies promising the Property to Ms Parsons for life, but says that she wanted to find a home for Ms Parsons as she was concerned about Ms Parsons’ wellbeing.[14] Ms King says that she told Ms Parsons that she could live in the Property rent-free, until Ms Parsons was able to save up enough money to look after herself.[15] On cross‑examination, when asked whether she had said to Ms Parsons ‘this is yours for life’, Ms King indicated that she could not remember what she had said as it was ‘a long while ago’;[16] but Ms King was otherwise adamant that she had never promised that Ms Parsons could live in the Property for life.[17] According to Ms King, she could not have made such a promise to Ms Parsons by herself, as Ms Hardie is a joint owner.[18]
[14]King Affidavit, [3]; Transcript 19.30–20.2.
[15]King Affidavit, [4]; Transcript 20.19–30.
[16]Transcript 20.31–21.2.
[17]See eg Transcript 22.19–21, 23.31–24.2 and 27.16–17.
[18]Transcript 27.31 – 28.3.
Ms Hardie says that she was not party to any conversation between Ms King and Ms Parsons in which a promise of a life estate may have been raised, was never informed about such a promise by Ms King, and never agreed to such an arrangement.[19] Ms Hardie further says that she never personally communicated to Ms Parsons that the Property would be hers for life, and had never intended for the Property to be Ms Parsons’ for life.[20] Ms Hardie’s evidence was that she became a part owner of the Property because she considered it to be a good investment. According to Ms Hardie, the first mention of a promise of a life estate in the Property was on 2 March 2021, when Ms King and Ms Hardie attended the Property to conduct an inspection for the purposes of preparing for the sale of the Property.[21]
[19]First Hardie Affidavit, [5]; Second Hardie Affidavit, [8].
[20]Second Hardie Affidavit, [5].
[21]Second Hardie Affidavit, [7.3].
At about the time Ms Parsons moved into the Property, in or around November 2014, Ms Hardie, Ms King and Ms Parsons met in the kitchen of Ms King’s home. Ms Hardie handed a written document titled ‘Occupation Agreement’ (‘Occupation Agreement’) to Ms Parsons.[22] The Occupation Agreement identifies Ms Hardie and Ms King each as being ‘the Owner’ of the Property, and Ms Parsons as ‘the Licencee’, and provides for Ms Parsons’ occupation of the Property on the following terms:[23]
[22]First Hardie Affidavit, [8]; Second Hardie Affidavit, [7]; King Affidavit, [4]; Parsons Affidavit, [15]. There is a disagreement between Ms Hardie and Ms Parsons as to whether Ms Parsons had already begun occupation of the Property when the Occupation Agreement was presented to her, but I do not think that anything turns on this.
[23]Exhibit “CH-2” to First Hardie Affidavit.
1.THE Owners grant to the Licencee a licence to occupy the property from the date listed in the in the Schedule hereto as the Occupation Date.
2.THE Licencee shall pay an occupation fee of the amount shown in the Schedule hereto in the manner as described in the Schedule to the Owners or as the Owners direct.
3.THE Licencee shall be responsible for all upkeep and maintenance of the property and shall keep the property clean and tidy at all times.
4.THE Owners may give the Licencee such notice as they in their absolute discretion determine if they require the Licencee to vacate the property PROVIDED THAT the Owners shall not give the Licencee notice and the Licencee shall be entitled to remain in the Property as long as she desires provided that she is not in breach of the terms and conditions of this Agreement and providing she has maintained the property in a neat and tidy condition and in a good state of repair in relation to those things which it is the Licencees obligation to repair and maintain.
5. UPON expiration of the time for occupation as determined by the Owners or upon the Licencee wishing to vacate the Licencee shall vacate the property and deliver it to the Owners in no lesser condition than it was when the Licencee was entitled to possession, and the Owners shall retain any moneys paid hereunder. The Owners may also claim from the Licencee the cost of restoring the property to the condition it was when the Licencee commenced occupation pursuant to this Agreement together with any legal costs of and incidental thereto.
6. THE Licencee shall pay for electricity, power, gas and water consumed on the property during the continuance of the Agreement.
7.NOTHING in this Agreement contained shall be construed or seemed to be construed as creating between the Owners and Licencee a relationship of landlord and tenant nor will it create for the Licencee any interest in the land whether legal equitable or otherwise.
8.THIS Licence to occupy is personal to the Licencee and does not include or permit any other person to occupy the property unless expressly authorised in writing by the Owners
The Schedule to the Occupation Agreement identifies the ‘Occupation Fee’ as ‘the payment of all rates, insurance and outgoings in relation to the property’.[24]
[24]Exhibit “CH-2” to First Hardie Affidavit.
The Occupation Agreement was not signed by any party.
According to Ms Parsons, after reading the Occupation Agreement, she said to Ms King ‘you’ve promised me this house for life’ and offered to pay for an agreement to be drawn up which recorded Ms King’s promise.[25] Ms Parsons says that she saw Ms Hardie’s name on the Occupation Agreement and said ‘if something happens to [Ms King], you’ll kick me out’; to which Ms Hardie replied that if Ms Parsons did not sign the Occupation Agreement, Ms Hardie could remove Ms Parsons from the Property.[26] Ms Parsons says that she did not sign the Occupation Agreement as it did not record Ms King’s promise, and that she said that she would seek legal advice.[27]
[25]Parsons Affidavit, [15].
[26]Parsons Affidavit, [15].
[27]Parsons Affidavit, [16].
Ms King and Ms Hardie deny that Ms Parsons said words to the effect of ‘you’ve promised me this house for life’ at that time.[28] Ms Hardie denies that Ms Parsons offered to pay for an alternative agreement to be drawn up, but accepts that Ms Parsons declined to sign the Occupation Agreement and instead indicated that she wanted to seek legal advice about it.[29] Ms Hardie says that she clearly informed Ms Parsons at this time that the Property was her investment property.[30]
[28]Second Hardie Affidavit, [7.3]; Transcript 27.25–30.
[29]First Hardie Affidavit, [9]; Second Hardie Affidavit, [7.2].
[30]Second Hardie Affidavit, [7.4].
Notwithstanding that the Occupation Agreement was not signed, Ms Parsons moved into the Property in or around November or December 2014 and has occupied the Property apparently undisturbed since then.[31] Ms Parsons says that she understood from Ms Hardie’s actions and statements, including the provision of the Occupation Agreement, that it was a condition of Ms Parsons’ occupation of the Property that Ms Parsons pay for the outgoings of the Property and keep the Property in good repair.[32] Ms Hardie and Ms Parsons agree that Ms Parsons paid an amount to Ms Hardie each month which was attributed to rates, the landlord insurance premiums, land tax, bills and any other outgoings in respect of the Property. Ms Hardie would provide these bills and notices to Ms Parsons from time to time as they became due, sometimes with explanatory notations.[33]
[31]First Hardie Affidavit, [10].
[32]Parsons Affidavit, [21].
[33]Parsons Affidavit, [21]–[25].
Ms Parsons says she has undertaken maintenance of the Property and spent $1,950.00 on a fence, $905.50 on replacement of taps and other fittings, and indeterminate other amounts on gardening. Ms Parsons also says that she had two garden sheds installed, though Ms King disputes that Ms Parsons paid for them.[34]
[34]Parsons Affidavit, [20]; Transcript 18.31–19.25.
In December 2020, Ms King and Ms Hardie began inquiries into residential aged care homes for Ms King as a result of a fall Ms King had suffered, and sought to sell the Property in order to pay a deposit for the aged care home.[35] Ms King’s own home is also in the process of being sold order to afford the deposit on the preferable aged care home, and these are the only two properties owned by Ms King.[36]
[35]First Hardie Affidavit, [23]–[24]; King Affidavit, [2].
[36]King Affidavit, [2]; Second Hardie Affidavit, [2].
Ms Parsons sought to put in issue whether Ms King was otherwise able to afford the deposit, including by access to her late husband’s superannuation. Ms King says that she is no longer receiving superannuation payments as the fund has been depleted.[37]
[37]Transcript 21.31–22.4; See also Transcript 46.9–16.
Ms Hardie informed Ms Parsons of Ms Hardie and Ms King’s intention to sell the Property by telephone on 7 December 2020, by letter on 9 December 2020, and in person later in December.[38] On 1 March 2021, Ms King and Ms Hardie authorised a real estate agent to begin arrangements for the sale of the Property, including arrangements for a letter to be delivered to the Property indicating that Ms Hardie and Ms Parsons would attend the Property the following day for a sales valuation.[39]
[38]First Hardie Affidavit, [25]-[26], [28]; Parsons Affidavit, [28].
[39]First Hardie Affidavit, [29]; Parsons Affidavit, [29].
On 2 March 2021, Ms Hardie and Ms King attended the Property with a real estate agent. Ms Parsons sought to keep Ms Hardie and Ms King from entering the Property, and there was an altercation which resulted in the police being called.[40]
[40]First Hardie Affidavit, [30]–[31]; Parsons Affidavit, [30]–[31].
According to Ms Hardie, she then entered the Property and documented the condition of the Property, observing that the Property ‘generally appeared to be in a state of disrepair’ and making particular observations as to the condition of the oven, kitchen cabinets, and other fixtures.[41] Ms Hardie says that she observed the following:[42]
[41]First Hardie Affidavit, [32]–[33].
[42]First Hardie Affidavit, [32].
(a) in the kitchen, the oven door and cook top was stained all over. There was no glass on the outside of the oven door, and the surrounding cabinets were burnt or covered in grease stains;
(b) the drawer of the bottom cupboard was sitting on the floor and appeared to be broken;
(c) the toilet seat was cracked;
(d) the shower door was dirty; and
(e) the curtains in both front bedrooms were being held up by pegs.
Ms Parsons rejects Ms Hardie’s characterisation of the Property as in a state of disrepair and responds to particular observations of Ms Hardie’s.[43] For example, Ms Parsons deposes that the oven door had broken three weeks after she moved into the Property, and denies that the surrounding cabinets were burnt or stained.[44]
[43]Parsons Affidavit, [33].
[44]Parsons Affidavit, [33].
On or around 28 April 2021, Ms Hardie caused a letter to be sent to Ms Parsons requiring that she vacate the Property within 14 days of receipt.[45] Ms Parsons did not vacate the Property, and this proceeding was commenced on 28 July 2021.
[45]First Hardie Affidavit, [36].
Principles and Issues
Order 53 of the Rules provides for summary proceedings for the recovery of land in certain circumstances. Rule 53.01 of that order provides for the application of the Order:
(1)Subject to paragraph (2), this Order applies where the plaintiff claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff’s licence or consent or that of any predecessor in title of the plaintiff.
The principles applicable to a proceeding under Order 53 were summarised by Associate Justice Derham in Tajon Pty Ltd v Arvanitis & Anor.[46] In that case his Honour said:[47]
[46][2017] VSC 130 (‘Tajon’). See also Suncorp-Metway Limited v Sunlongsolar Pty Ltd & Ors [2014] VSC 580, [30]-[32] (Derham AsJ).
[47]Tajon, [34] (footnotes omitted).
The authorities establish the following matters in relation to the operation of O 53:
(a)it is intended to enable a speedy resolution in favour of the proprietor of land of a dispute whereby trespassers are keeping the proprietor out;
(b)it is intended to apply only in clear cases where there is no question to try;
(c)the existence of a factual dispute does not deny the applicability of O 53 where it is possible to resolve the dispute readily and fairly.
(d)while an order for possession may be made notwithstanding that there is a factual dispute between the parties, such an order will only be appropriate if the Court is able to satisfy itself as to the material facts that bring the case within O 53;
(e)the jurisdiction should be exercised with great care;
(f)where an issue does emerge, the judge has discretion to dismiss the proceeding or to determine the issue or cause the issue to be subsequently tried. This includes giving directions as to the further conduct of the proceeding or ordering the proceeding continue as if begun by writ pursuant to r 4.07 of the Rules; and
(g)where the Court gives judgment for possession under order 53, it may grant a stay of execution.
Each party’s primary submissions were in respect of whether there was a triable question concerning Ms Parsons’ allegations that she was promised a life interest in the Property, and each proceeded on the basis that the question was whether a proprietary estoppel arises in the circumstances that there was no grant of interest. The parties did not dispute the principles by which a claim for proprietary estoppel will be established. As they were stated by the Defendant, the Court will consider whether:
(a) the owner of property, as representor, has encouraged another by way of representation to alter his or her position in the expectation of obtaining a proprietary interest (representation);
(b) the representee forms an assumption that he or she has or will have a proprietary interest in the property (assumption);
(c) the conduct of the representor causes or materially contributes to the formation of that assumption and the representee has to their detriment changed his or her position in reliance on the expectation (inducement, reliance and detriment); and
(d) it would be unconscionable for the representor to resile from the representation (unconscionability).[48]
[48]Trentelman v Owners – Strata Plan No 76700 [2021] NSWCA 242 at [116]–[118] (Bathurst CJ, with whom Bell P and Leeming JA agreed). See also E Co v Q [2018] NSWSC 442 at [912] (Ward CJ); Sidhu v Van Dyke (2014) 251 CLR 505; Sullivan v Sullivan (2006) 13 BPR 24,755.
While submissions were largely directed to whether an estoppel arises as a result of Ms Parsons’ reliance on Ms King’s alleged promise, the Defendant also raised a related but distinct claim in respect of Ms Hardie for ‘estoppel by assumption’. This is a similar claim to that made against Ms King. As summarised by counsel for Ms Parsons, the elements of an estoppel by assumption are:
(a) the party claiming the estoppel, ie Ms Parsons, adopted an assumption on the basis of an act or omission;
(b) Ms Parsons, upon the basis of the assumption, has so acted or abstained from acting, that a detriment will be suffered if Ms Hardie, the party against whom the estoppel is asserted, is afterwards allowed to set up rights inconsistent with it; and
(c) Ms Hardie must have played such a part in the adoption of, or persistence in, the assumption that freedom to act otherwise than in a manner consistent with it would be unfair or unjust.[49] For convenience, I will refer to this element as inducement of the assumption.
[49]Budget Stationery Supplies Pty Ltd v National Australia Bank Ltd (1996) 7 BPR 14,891 at 14,939-14,940.
Each party also made submissions in respect of whether, if Ms Parsons did not have a proprietary interest arising by way of an estoppel, any licence by which she occupied the Property was validly terminated.
Submissions
Plaintiffs’ Submissions
The Plaintiffs submit that an Order 53 proceeding does not preclude the Court’s determination of factual issues as they arise, so long as those issues can be dealt with readily and fairly,[50] and that if there are factual issues in the present proceeding these can be so disposed of.
[50]Tajon, [34].
In respect of the proprietary estoppel claim, the Plaintiffs rely primarily on Ms King’s denial of the alleged promise and on Ms Hardie’s evidence that she had never agreed to such an arrangement.
While the Plaintiffs deny any promise, representation or encouragement, they also submit that any such conduct was disavowed or replaced by Ms Hardie’s presentation to Ms Parsons of the Occupation Agreement. The terms of the Occupation Agreement itself are said to have clearly communicated to Ms Parsons that she would not be entitled to a life interest. Further, the exchange between Ms Hardie and Ms Parsons concerning whether Ms Hardie would evict Ms Parsons is said to indicate that Ms Parsons was aware that her occupation of the Property was not on the basis of a freehold life estate.
The Plaintiffs submit that Ms Parsons knew from at least the time she was presented with the Occupation Agreement that Ms Hardie was a registered proprietor of the Property, and point to the Occupation Agreement itself which identifies Ms Hardie as ‘the Owner’ as well as the variety of bills, notices of rates and land tax assessment notice provided to Ms Parsons from time to time which were addressed to Ms Hardie. The Plaintiffs submit that in these circumstances it would be unreasonable for Ms Parsons to rely on any alleged promise from Ms King. Further, the Plaintiffs submit that Ms Parsons should not be taken as a witness of credit as she has sought to mislead the Court as to her knowledge that Ms Hardie was a registered proprietor of the Property.
The Plaintiffs also submit that the detriment to Ms Parsons in reliance on any promise is limited to the abandonment of inquiries into community housing and alternative housing support and Ms Parsons’ expenses for care and maintenance of the Property. The Plaintiffs submit that there has been no real detriment in abandoning the inquiries into housing as there is no evidence those inquiries were advanced in any material way, and no evidence that they could not now be pursued. The Plaintiffs submit that Ms Parsons’ proven maintenance expenses are limited to $2,855.50, which is clearly insufficient to raise an equity giving rise to proprietary relief, and in any event are expenses consistent with her obligations under the Occupation Agreement.
The Plaintiffs submit that in the circumstances of Ms King’s retirement needs and Ms Hardie’s status as a third party to any promise it would be inequitable and disproportionate for Ms Parsons to gain the benefit of occupation of the Property for life.
The Plaintiffs further submit that even if the representation and detrimental reliance were established in respect of Ms Parsons’ claim of estoppel, the Court would decline to award a proprietary remedy by application of the doctrine of laches. It is submitted that in the circumstances that Ms Parsons has acted largely in accordance with the Occupation Agreement since 2014, equity would not now allow her to claim that she had always believed that she had a proprietary interest but had not sought to establish it until now.
The Plaintiffs submit that the Occupation Agreement applies to Ms Parsons’ occupation notwithstanding that it has not been signed, as Ms Parsons’ agreement to the Occupation Agreement is to be inferred from her conduct. It is said that Ms Parsons’ payment of an amount attributable to the outgoings of the Property, and her affidavit evidence indicating that she understood that it was a condition of her occupation that she keep the Property in good repair and pay for the outgoings of the Property,[51] strongly suggest that Ms Parsons impliedly agreed to the Occupation Agreement.
[51]Parsons Affidavit, [21].
Further, the Plaintiffs submit that the Occupation Agreement, if in force, grants a licence on its terms. The Plaintiffs acknowledge that it is exceptional for an occupant with exclusive possession of a property to be held to be a licensee. However the Plaintiffs submit that the present case is such an exceptional circumstance, and say that exclusive occupation is ‘critical’ but not determinative. It is said that the terms of the Occupation Agreement clearly contemplate that Ms Parsons would occupy the Property pursuant to a licence, rather than a lease. It is also said that the familial relationship between the parties and the generosity of the arrangement, especially with respect to the low fees, are matters which tend against an inference of an intention for the parties to create a tenancy.[52]
[52]Citing Radaich v Smith (1959) 101 CLR 209, [6] per Taylor J; Cobb v Lane [1952] 1 All ER 1199.
In the alternative the Plaintiffs submit that if the Occupation Agreement was not in force, Ms Parsons occupied the Property by a bare licence without contractual basis or without a coupled grant of an interest in the land, and which is revocable at will. The Plaintiffs’ submissions in respect of the existence of a licence rather than a lease apply in this circumstance as well.
Ms Parsons’ Submissions
Ms Parsons submits that the factual and legal issues arising in the proceeding are not suitable for determination in a summary way pursuant to Order 53. In particular, she submits that there are significant factual disputes concerning whether Ms King promised her an interest in the Property, and/or whether Ms Hardie induced an assumption of an interest in the Property.
Ms Parsons submits that the other elements of a proprietary estoppel claim are established. She submits that the detriment to Ms Parsons relevant to the determination of the estoppel goes beyond Ms Parsons’ abandonment of inquiries into alternative accommodation and expenditure on outgoings and maintenance, and includes the imminent risk that Ms Parsons will be homeless or forced into unaffordable accommodation.
Ms Parsons submits that Ms Hardie’s lack of consent to Ms King’s promise is irrelevant to whether Ms King is estopped from denying her promise, as each joint tenant is entitled in law to dispose of or deal with their property as they see fit.[53] However Ms Parsons also says that she did not know that Ms Hardie was a registered proprietor of the Property until 2 March 2021, and points to the lack of evidence from any party that Ms Parsons was specifically informed of this and Ms Hardie’s practice of removing her address from the bills and notices in respect of the Property, as a basis for the inference that Ms Parsons’ reliance on Ms King’s promise was reasonable.
[53]Catanzariti v Whitehouse (1981) 55 FLR 426 (‘Catanzariti’).
Ms Parsons agrees with the Plaintiffs’ submissions in respect of the exceptional nature of exclusive possession of a property pursuant to a licence rather than a lease, and says that the issue is not simply a matter for construction of the Occupation Agreement but is a matter of fact which is unsuitable for summary determination. Ms Parsons rejects the Plaintiffs’ submission that the occupation was either pursuant to the Occupation Agreement or by a bare licence as an unreasonably binary choice, and submits that there is a triable issue in respect of the nature of Ms Parsons’ occupancy. The nature of that occupancy was said to be as a result of Ms King’s promise that Ms Parsons could live in the Property for life and/or Ms Hardie’s inducement of an assumption to that effect. That is, the nature of the occupancy was said to be as a consequence of an interest created via the doctrine of proprietary estoppel. It was not contended that the arrangement was a lease. The submissions made on behalf of Ms Parsons were that there is a question to be tried as to whether Ms Parsons has a claim of proprietary estoppel by encouragement against Ms King and/or that Ms Parsons has a claim of proprietary estoppel by assumption against Ms Hardie.
Ms Parsons submits that if there is a licence, then the terms of the Occupation Agreement apply to it due to Ms Parsons’ substantial compliance with the Occupation Agreement. Ms Parsons submits that there is no issue as to whether she has paid for the outgoings in accordance with the Property, and submits that each instance of disrepair or lack of cleanliness in the Property is a de minimis breach which would not justify termination of the Occupation Agreement. It is also said that the Court would require further authority and submissions the standard of cleanliness or maintenance required by the Occupation Agreement such that the matter is not suitable for summary determination.
Consideration
Proprietary estoppel
Whether a proprietary estoppel arises in the present case turns in large part on whether Ms Parsons or Ms King’s evidence concerning the alleged promise of a life estate is to be preferred. There is an irreconcilable conflict in their evidence on this issue. There are also conflicts of evidence between Ms Hardie and Ms Parsons. As will be discussed below, I prefer Ms King’s evidence to Ms Parsons’ evidence in respect of the underlying alleged promise, and consider that this conflict of evidence is capable of resolution fairly and readily within this application. As is clear from the authorities, facts in dispute can be dealt with in Order 53 applications in such circumstances. I also consider that the conflicts of evidence as between Ms Hardie and Ms Parsons do not relate to Ms Parsons’ defence to the Plaintiffs’ application in such a way as to require further evidence or resolution through pleadings followed by a trial.
Ms King is 87 years old, and gave her evidence from her room in a residential aged care home. Ms King sometimes struggled to recall certain details, however I found her to be a cogent and honest witness and I accept her evidence. I do not consider that Ms King’s evidence on cross-examination that she could not remember what she had said, when asked whether she had said to Ms Parsons ‘this is yours for life’, to be particularly significant in circumstances where Ms King clearly denied saying anything to that effect. I find her evidence that she believed that she could not have granted a life interest to Ms Parsons due to Ms Hardie’s joint proprietorship compelling, notwithstanding what the position may be in law with respect to a joint tenant’s disposition of interests in land as discussed in paragraph 56 below.
On the other hand, Ms Parsons gave evidence which was at times inconsistent with her own earlier evidence, or the documentary evidence, in a way that raises doubts about her reliability as a witness. For example, I do not accept that Ms Parsons was not aware that Ms Hardie was a joint proprietor of the Property until 2 March 2021 or May 2021; both dates given by Ms Parsons in her own affidavit. The evidence suggests that she would have been aware of Ms Hardie’s interest at least at the time the Occupation Agreement was provided to her in November 2014, and likely even before then. Although it appears that Ms Parsons has a somewhat limited understanding of the technical details of property matters,[54] and that ultimately whether Ms Parsons was aware of Ms Hardie’s interest, is not of great significance, I consider that Ms Parsons’ insistence that she was unaware until some time in 2021 is not to be believed. Similarly, Ms Parsons offers no basis for her stated belief that Ms Hardie had not contributed to the purchase price of the Property, and her evidence concerning the condition of the Property is at odds with the condition report exhibited to Ms Hardie’s second affidavit.
[54]I make this merely as an observation and mean no disrespect or criticism by it.
I have had the benefit of affidavit material and evidence on cross-examination from both parties, and consider that the conflict between Ms King’s and Ms Parsons’ evidence turns on each party’s credibility as it is agreed that there is no documentation in respect of the alleged promise of a life interest. For this reason I do not see how I would be assisted in the task of assessing whether Ms King made a relevant promise by an order for the subsequent trial of the issue. Rather, the conflict can be resolved readily and fairly in this summary proceeding on the material before the Court.
I consider that Ms Parsons may well have believed that she was entitled to stay in the Property for life as a result of the circumstances in which the Property was purchased and possession given over to her. This may be so notwithstanding that Ms Parsons appears also to have believed that Ms Hardie could evict her at any time, and that conditions were imposed on her occupation. I do not think that Ms Parsons’ claim is purely cynical in this respect, though I have not accepted her evidence of specific promises of a life interest in the Property. I consider it far more likely Ms King told Ms Parsons something to the effect that Ms Parsons could stay in the Property for as long as she needed, or until she was able to save up enough money, and that Ms Parsons misunderstood this to entail a much larger grant of interest. I decline to find that any actionable promise, representation or encouragement concerning a life interest in the Property as claimed by Ms Parsons was ever made by Ms King.
In respect of any inducement of an assumption by Ms Hardie which is said to raise an estoppel against her, I consider that Ms Hardie’s evidence is clear and compelling; and that Ms Parsons’ evidence is rather thin. I do not think that Ms Hardie ever asked Ms Parsons whether she would like to live in the Property for the rest of her life. There is also no cogent evidence that if Ms Parsons did assume that she was entitled to live in the Property for life, that Ms Hardie played a part in the adoption of that assumption or Ms Parsons’ persistence in it. Further, it is difficult to see how, in the circumstances of this case, an estoppel by assumption against Ms Hardie could be sustained where an estoppel by encouragement has not been made out against Ms King. This is because Ms Parsons’ evidence primarily went to the promise she alleged Ms King made to her, rather than to specific conduct of Ms Hardie. It is also difficult to see how Ms Parsons can credibly say that she made assumptions based on Ms Hardie’s conduct when she was adamant that she did not know that Ms Hardie was a joint owner of the Property. If the case against Ms Hardie is that she induced an assumption based on Ms King’s alleged promise to Ms Parsons, then that also cannot be accepted, for similar reasons.
For completeness, I do not consider that Ms Hardie’s lack of awareness or consent to any promise made to Ms Parsons would present a bar to a proprietary estoppel claim against Ms King. In Catanzariti the Full Federal Court affirmed the entitlement of joint tenants to equal use and occupation of the whole of the estate, and held that a joint tenant could lease their interest freely without infringing on the right of their co-tenant so long as the lessee does not exclude the co-tenant.[55] It may be that this principle applies equally to a grant of a life estate, whether or not that would effect a severance of the joint tenancy, though the point was not explored fully before me. By the same token I do not consider Ms Parsons’ notice as to Ms Hardie’s interest in the Property to be particularly relevant though I understand the parties’ submissions in respect of the reasonableness of Ms Parsons’ reliance. Moreover, as I do not consider that there was any relevant representation, promise, encouragement or inducement, the question does not arise for consideration.
[55]Catanzariti, 429.
The presentation of the Occupation Agreement around the time Ms Parsons moved into the Property ought to have indicated clearly to Ms Parsons that, whatever may have been said by Ms King to Ms Parsons in respect of living indefinitely in the Property, it was not intended in 2014 that she occupy the Property pursuant to a freehold life estate or similar. Ms Parsons acknowledges this, as she says she did not sign the Occupation Agreement because it was ‘wrong’ and did not reflect her understanding of what she had been promised. I am prepared to accept that Ms Parsons felt this way at the time, though she may not have communicated her assumed position clearly to Ms King and Ms Hardie. In any event, on receipt of the Occupation Agreement Ms Parsons ought to have been aware that her understanding of the terms of her occupation of the Property were erroneous.
To the extent that Ms Parsons sincerely believed that she was entitled to stay in the Property for life, this position does not arise out of any positive promise or representation by either Ms King or Ms Hardie, nor would a reasonable person in Ms Parsons’ position have been led to believe that they were so entitled. Ms Parsons’ claim for a life interest in the Property, arising from a proprietary estoppel, therefore fails.
Because of my conclusion in respect of the alleged promise, representation, encouragement or inducement, it is not necessary for me to express a view on the matters raised by the parties, and in particular Ms Hardie and Ms Parsons, in respect of whether it would be unconscionable for Ms King and Ms Hardie to disappoint Ms Parsons’ expectation. I will briefly mention that I do not accept that Ms Parsons has suffered any sufficient detriment by way of her abandonment of inquiries into public housing and alternative housing support or by her expenses for care and maintenance of the Property. However I acknowledge that the risk that Ms Parsons will become homeless or unable to access affordable housing as a result of an order for possession is very serious and is a matter which would have been relevant to the framing of equitable relief raised by an estoppel. Balancing this against Ms King’s desire to sell the Property in order to pay the deposit for her preferred aged care home, considering fully whether Ms King is otherwise able to afford a deposit, and considering whether laches would preclude a proprietary claim, may well be unsuitable for summary disposition; but the issues do not arise.
Termination of Licence
Order 53 provides only for recovery of land occupied ‘solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff’s licence or consent’. The proprietary estoppel claim would, had it been accepted, be sufficient to place this case outside the ambit of Order 53. Having found against Ms Parsons on the proprietary estoppel claim, it falls to consider whether she occupied the Property pursuant to a licence and whether that licence has been revoked or terminated. There was no submission made that if the proprietary estoppel claim was not made out, Ms Parsons’ occupation was otherwise than by licence from Ms King and Ms Hardie.[56]
[56]Ms Parsons’ submission that the Plaintiffs’ submission that the nature of her occupancy was not binary was that the Plaintiffs presented it as being either pursuant to the Occupation Agreement or a bare licence, whereas Ms Parsons says that it was pursuant to a proprietary estoppel. There was no suggestion that the binary aspect was as between a lease and a licence.
The Plaintiffs contend that the terms of the Occupation Agreement substantially govern Ms Parsons’ occupation of the Property. Alternatively, they say if it does not do so, then Ms Parsons occupies the Property pursuant to a bare licence which is revocable at will. Ms Parsons submits that, if there is a licence at all, the Occupation Agreement governs it. For the reasons which follow I do not consider the question of whether the Occupation Agreement was or was not in force to be critical, as the licence has been validly terminated in any event.
If the Occupation Agreement applies, the parties appear to be in agreement that clause 4 governs the validity of any notice to vacate issued by the Plaintiffs to Ms Parsons, and in turn the revocation of Ms Parsons’ licence to occupy the Property. It seems to me that the wider discretion granted to the Plaintiffs to determine the ‘expiration of the time for occupation’ in clause 5 is subject to the provisions of clause 4, and that clause 4 should be read in conjunction with clause 3. Taken together, the notice to vacate issued on 28 April 2021 will be ineffective unless Ms Parsons was at that time ‘in breach of the terms and conditions of [the Occupation Agreement]’, and has ‘maintained the property in a neat and tidy condition and in a good state of repair in relation to those things which it is the Licencees [sic] obligation to repair and maintain’; and that those obligations extended to ‘all upkeep and maintenance of the property’.
There is a disagreement between the parties as to the extent or source of the disrepair in the Property, and there is a question as to the standard of disrepair in the Property required to enliven clause 4 of the Occupation Agreement. However I consider that both issues can be readily and fairly resolved in a summary way as a matter of construction of the Occupation Agreement and consideration of the evidence. The validity of termination of a licence is a matter commonly dealt with in an Order 53 proceeding, and I do not consider that it is necessary to call for more evidence or authority in this respect.
According to the Occupation Agreement, Ms Parsons was required to maintain the Property in a ‘neat and tidy condition and in a good state of repair’, and was responsible for ‘all upkeep and maintenance’. As a matter of construction this does not impose a particularly high standard of cleanliness or maintenance, though I accept that there will be de minimis breaches that would not justify termination. I do not think that the Occupation Agreement imports a standard of cleanliness or maintenance by reference to the condition of the Property prior to Ms Parsons’ occupation. Rather the words ‘neat and tidy condition and in a good state of repair’ contain their own standard.
The condition of the Property as described by Ms Hardie is well below that standard. In particular, the oven and stove are clearly not in a ‘good state of repair’. Ms Parsons admits at least to the malfunction of the stove and the missing glass on the oven door, which it seems to me would render the oven unsafe for use if it is usable at all. Ms Parsons also admits that the toilet is broken. I do not accept Ms Parsons’ framing of each issue in the Property as raising a discrete question of whether, for example, a cracked toilet seat would by itself constitute a relevant failure to keep the Property in a good state of repair. I also do not accept the emphasis in Ms Parsons’ submissions on the concepts of fair wear and tear, as the terms of the Occupation Agreement go further than this, in particular in the provisions requiring a ‘neat and tidy condition’ and ‘good state of repair’. Taken together, I am satisfied that the condition of the Property as raised by Ms Hardie, and admitted by Ms Parsons in critical respects, are sufficient to enliven clause 4 of the Occupation Agreement.
As a result, the notice to vacate issued on 28 April 2021 was in accordance with the Occupation Agreement such that, if it applies, the Occupation Agreement was validly terminated 14 days thereafter and Ms Parsons remained in occupation without the Plaintiffs’ licence or consent.
If the Occupation Agreement does not govern the parties’ arrangement and Ms Parsons’ occupation of the Property, then I accept the Plaintiffs’ submission that Ms Parsons occupied the Property pursuant to a bare licence. Such a licence is revocable at will and there is no doubt that this has occurred.
Conclusion
For the above reasons, I am satisfied that it is appropriate to make orders for the Plaintiffs to recover possession of the Property pursuant to Order 53. While factual disputes have arisen, the Court has been able to fairly and readily deal with this by way of the summary procedure. I am not satisfied that Ms Parsons occupies the Property pursuant to a promise by Ms King of a life estate and/or an inducement by Ms Hardie of an assumption of a life estate or that a proprietary estoppel arises to prevent the Plaintiffs obtaining orders for recovery of the Property. I am satisfied that Ms Parsons occupies the Property pursuant to a licence, whether it be under the Occupation Agreement, or on the terms of the Occupation Agreement, or a bare licence. I am also satisfied that whichever licence it be, it has been validly terminated.
I will list the proceeding for 17 December 2021 for the making of orders to give effect to this judgment, including as to costs and to the timing of the operation of an order for recovery of the Property by the Plaintiffs (if appropriate). If the parties are able to reach an agreed position in respect of the orders to be made, then proposed consent orders can be submitted to my Chambers prior to that date.
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