Hardie v Parsons - [2021] VSC 816

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…

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 Hardie v Parsons

Details

AGLC: Hardie v Parsons [2021] VSC 816
Case: [2021] VSC 816
Decision Date: 10 December 2021

CaseChat Overview and Summary

In the matter of Hardie v Parsons, the Supreme Court of New South Wales dealt with an application for summary recovery of land, where the plaintiff sought possession of a property based on the termination of a licence. The defendant, Parsons, argued against the summary recovery on the grounds of proprietary estoppel and the existence of a life estate held on a constructive trust. The court was required to determine whether the matter could be readily and fairly resolved through the summary procedure, and if there was a valid basis for proprietary estoppel or a life estate on a constructive trust. Additionally, the court needed to examine whether the contractual licence had been validly terminated or if a bare licence was revocable at will.

The court first addressed whether the matter could be resolved through the summary procedure, considering the nature of the defendant's claims and the evidence presented. It found that the defendant's claims did not present a complex issue that required extensive argument or evidence, thereby allowing the matter to be resolved summarily. The court then examined the defendant's assertion of proprietary estoppel, concluding that there was no basis for such a claim. It was determined that the defendant had not relied to their detriment on any representation or assurance that would give rise to a proprietary estoppel. Furthermore, the court found no merit in the defendant's argument regarding a life estate on a constructive trust, as there was no evidence to support such a claim.

Having found no basis for proprietary estoppel or a life estate on a constructive trust, the court turned to the issue of the licence. It examined whether the contractual licence had been validly terminated or if the bare licence was revocable at will. The court determined that the licence had been revoked and that there was no impediment to the plaintiff's possession of the property. Therefore, the court concluded that it was appropriate to grant an order for possession of the property in favour of the plaintiff.

The court ordered that the defendant vacate the property within 14 days of the judgment, and that the plaintiff be granted possession of the property. The defendant was also ordered to pay the plaintiff's costs of the application.

Orders