Isworth v Lancaster

[2012] VCC 267

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-11-00270

BERNARD FRANCIS ISWORTH (as Executor of the Estate of Anne De Ville )	Plaintiff
v
JOHN LANCASTER	Defendant

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JUDGE:	His Honour Judge Misso
WHERE HELD:	Melbourne
DATE OF HEARING:	15 & 16 February 2012
DATE OF JUDGMENT:	22 March 2012
CASE MAY BE CITED AS:	Isworth v Lancaster
MEDIUM NEUTRAL CITATION:	[2012] VCC 267

REASONS FOR JUDGMENT

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SUBJECT: CONTRACT

CATCHWORDS: terms of settlement - life interest to reside in a flat - life interest subject to a term that the plaintiff not substitute another person as the resident in the flat - whether the term had been breached- whether defendant substituted another person as the resident of the flat
CASES CITED: Jones v Dunkell (1959) 101 CLR 298
JUDGEMENT: the defendant give vacant possession of the flat to the plaintiff

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Moloney	Slater & Gordon
For the Defendant	Mr D James	Barnett & Barnett

HIS HONOUR:

Introduction

1       The plaintiff commenced a proceeding by writ endorsed with a statement of claim on 31 January 2011 seeking a declaration that the defendant’s life interest to occupy flat 3, 2A Brenbeal Street, Balwyn ("the flat") has terminated, and that the plaintiff is entitled to possession of the flat.

2       Mr T Moloney of counsel appeared for the plaintiff, and Mr D James of counsel appeared for the defendant.

3       During the course of discussion with Mr Moloney regarding the pleading of the statement of claim it became apparent that it was deficient. On the second day of hearing Mr Maloney applied to amend the statement of claim. Mr James did not object. I gave leave to the plaintiff to file and serve an amended statement of claim.

The Background Facts

4       Anne De Ville ("the deceased") was the proprietor of the flat. Her proprietorship was based upon being the registered holder of 4150 fully paid ordinary shares in a company known as Brenbeal Court Pty Ltd ("the premises"). The deceased died on 31 March 2004.

5       The defendant was the domestic partner of the deceased. The deceased left her estate to a number of beneficiaries. The plaintiff was appointed the executor of her estate.

6       The defendant made a claim against the plaintiff pursuant to Part IV of the Administration and Probate Act 1958. It was settled by the defendant on terms of settlement.

7       The defendant was permitted to reside in the flat during his lifetime, on the terms and conditions contained in the terms of settlement. It was the plaintiff's case that the defendant's residence was subject to clause 4 of the terms of settlement. It is as follows:

"The Plaintiff's right to reside in the Flat terminates, and the defendant shall be entitled forthwith to take possession of the Flat, if the plaintiff allows any person, in substitution for himself, to reside in the Flat, or if he takes up occupation of another property as his principal place of residence."

8       The evidence adduced by both parties went to the issue whether the plaintiff had allowed his son, William Lancaster (referred to as "Bill"), and Bill’s son, to reside in the premises in substitution for himself, and/or whether he had taken up occupation of another property as his principal place of residence.

The Plaintiff's Evidence

9       Mrs Paula Dams swore an affidavit on 26 September 2011. She gave evidence by video link.

10      Mrs Dams occupied Flat 4 across the hallway from the flat occupied by the defendant. She knew the deceased, and she knew the defendant. She observed that the defendant continued to reside in the flat after the deceased died. She sold her flat in February 2010 to Mrs Barbara Wilding.

11      In paragraphs 3 and 4 of her affidavit she said the following:

"3.I sold my flat in February 2010 and moved out in March 2010. When I moved out John had not lived in the flat for approximately three or three and a half years. John was definitely not living there when I moved out.

4.When John decided to move out of the flat he gave me his telephone number. John told me he was moving to Geelong. The telephone number he gave me was 5248 4440. I would telephone John on occasion and I recall that sometimes a woman would answer the phone. John also gave his mobile number 0433 391 062."

12      Mrs Dams adopted her affidavit as being true and correct. She was then cross-examined by Mr James. She repeated her statement that the defendant had moved out of the flat. She conceded that if he was in the flat there was no way that she could ascertain whether he was there or not. She said he was living in Geelong. She said that he would attend the premises once a week at most. She said that she had a conversation with him during which he said that he was working in Geelong and that it was more convenient for him to stay in Geelong.

13      Mrs Wilding swore an affidavit on 10 November 2011. She was called to give evidence. She said she purchased the flat formerly owned by Mrs Dams. She said that she was introduced to the defendant by Mrs Dams. She said that the flat was occupied by Bill. She had been introduced to Bill by Mrs Dams. She said that over the period she resided in her flat, from March 2010, that she had only seen the defendant once or twice. The last occasion she saw him was on Thursday, 28 July 2011. She spoke to him on that occasion regarding the behaviour of Bill who she believed was throwing rubbish in her letterbox.

14      Mrs Wilding said that she knew that the defendant was no longer living in the Flat because she was coming and going from her flat all of the time. I infer that what she meant was that she did not observe the defendant in and around the premises or the flat.

15      Mrs Wilding referred to difficulties created by Bill and his son. Bill and his son parked a car in the driveway contrary to applicable Owners Corporation Rules. She saw both of them coming and going from the flat. Bill was in the habit of parking his car on common property. It became an issue for the Owners Corporation. Bill was served with a Notice pursuant to the Owners Corporations Act 2006, the Owners Corporations Regulations 2007 and the Owners Corporation Rules dated 31 May 2011 to rectify a breach regarding where he was in the habit of parking his car.

16      Mrs Wilding lastly said that in the few weeks prior to swearing her affidavit that he she had noticed little activity coming from the flat. She also noticed that Bill’s car was no longer parked on the premises. She also noticed that Bill was not coming and going from the flat, but she noticed that Bill's son was parking his car in the street, and that he and his girlfriend were coming and going from the flat. She also spoke to the defendant recently, that is, relevant to the date of swearing her affidavit. He said to her that he would be coming and going from the flat. He told her that he had spent two nights there but had not been there for a period of three nights.

17      Mr Robert Ryan swore an affidavit on 3 October 2011. Mr Ryan is a private investigator. He said that he attended at the flat on two occasions. He spoke to the defendant by telephone. The defendant told him that he was living in Geelong with his son.

18      Mr Gavan Knight swore three affidavits on 10 November 2011, 17 November 2011, and 31 January 2012. Mr Knight first attended the flat on 25 August 2011. He rang the doorbell and knocked. There was no answer. He did the same with the same response on 26, 28 and 31 August 2011, and on 2, 3, 5, 13, 14, 21, 22, 23, 29 and 30 September 2011, and 2 October 2011.

19      On 15 December 2011 Mr Knight installed a camera at the premises. During his evidence in chief Mr Knight produced digital surveillance on a hard drive which was tendered into evidence. Mr Knight viewed the surveillance recorded on the hard drive. He observed the defendant at the premises on 16, 20, 21, 23, 27, 28  and 30 December 2011. On each occasion the defendant was seen to check the letterbox at the premises. The surveillance did not disclose any  other attendances by the defendant at the premises.

20      On 26 August 2011 Mr Knight attended the premises and rang the doorbell and knocked on the door of the flat. There was no answer. He entered the flat with Phil Treeby, the son of the deceased, and looked around the flat. He took a number of photographs which are exhibited to his second affidavit. He noted an absence of food in the fridge and an absence of characteristics in the flat consistent with it being occupied.

21      Mr James cross examined each of these witnesses. It was not my impression that they altered their evidence in any particular respect. What each of them did concede was that their capacity to determine whether the defendant was occupying the flat during the day or at night was limited. This was because they could not determine from immediately outside the flat nor from outside the premises due to the height of the windows from ground level if anyone was in the flat unless that person was standing close to a window. Mrs Dams and Mrs Wilding said that if there was a radio or television on in the flat that it was detectable from immediately outside the door of the flat.

The Defendant's Evidence

22      The defendant swore two affidavits on 15 November 2011 and 15 December 2011. In his first affidavit he deposed to a number of matters which are not controversial. In relation to his use of the flat as his residence he said that during 2010 he travelled to Geelong frequently to undertake work. He spent the weekends at the flat. He left his belongings and most of his clothes in the flat and maintained foodstuffs in the kitchen and in the refrigerator. When he stayed in Geelong he stayed at the home of his son, Robert Lancaster. He would occasionally stay with other family members who also live in the Geelong area.

23      The defendant conceded that he would spend periods of time away from the flat, for example, he said he would spend days away on fishing trips and travelling interstate to visit members of his family. He said that he has continued paying the water rates, council rates and body corporate fees and utilities. He has his mail directed to the flat.

24      In his second affidavit he repeated some of the matters deposed to in his first affidavit. There are a number of matters in his second affidavit which are noncontroversial, and others which are irrelevant. However, he repeated that he has spent periods of time away from the flat. He denied that he has abandoned the flat as his residence.

25      In his first affidavit he denied having a conversation with Mr Ryan in which it is alleged he said that he was living in Geelong with his son. During cross examination he said that he spent a lot of time at Robert’s home in Geelong. He had travelled away on fishing trips to Queensland, and to South Australia to visit relatives. He was not away from the flat for a week, but would be away for maybe two or three days at a time. However, he also said that he had stayed for up to three days at Robert’s home and at the homes of other people. I was left with the impression that on those occasions his stay at Robert’s and then at the homes of other people was not interrupted by a return to the flat. He said that his mail is directed to the flat, and he referred specifically to his hospital benefits, water rates, electricity bills and body corporate correspondence being sent to the flat.

26      The defendant said that he uses a mobile phone. It is paid for by Robert. He also has the use of a car which is owned by Robert. He was called upon to produce correspondence received at the flat, and in particular, by service providers. All he produced was a municipal rate account issued 14 October 2011 and an electricity account for the period 18 June to 13 September 2011. He said that he paid the accounts and disposed of the accounts and the record of payment because he had no need to keep such records.

27      The defendant said that his son Bill and his grandson stayed at the flat. The defendant's evidence in that regard was vague. It did not condescend in any particular detail about when they stayed at the flat, and in what circumstances, and whether they treated the flat as their residence.

28      The defendant was cross-examined. In connection with the evidence of Mr Knight the defendant said that the bell at the front door of the flat did not work. He said his hearing is so bad that he could not hear anyone knocking on the door. If he watched TV he would have the volume on the TV turned up quite loud. He said that when his son, Bill, and Bill’s son and his girlfriend stayed at the flat that he occupied the main bedroom. Bill’s son and his girlfriend occupied a lounge room which was converted into a bedroom. They slept on a trundle bed. He did not say where Bill slept.

29      Bill swore an affidavit on 15 December 2011. He said that the defendant had suffered ill-health over the last few years. He assisted the defendant by visiting him at the flat to care for him. His son and his girlfriend would occasionally also stay to provide companionship for the defendant. He denied that he was living in the flat in substitution for the defendant. He said he paid some accounts for the defendant while he was living in the flat. He had his own mail directed, or some of it, to the flat.

30      Bill was cross-examined. He said that there were periods when the defendant was absent from the flat on fishing trips and travelling to Queensland, New South Wales and South Australia where some of the defendant's siblings lived. The defendant spent a lot of time in Geelong, and on occasions might have been there for up to a week. In answer to questions put by me he said that he lived full-time in the flat for 10 months in 2010 and for four months in 2011 up until mid-2011.

31      Robert Lancaster swore an affidavit on 16 December 2011. He said that the defendant lived in the flat. The defendant previously worked for  municipalities in the Geelong area as a health officer. Robert said the defendant stayed at his home arriving on Monday and leaving the following Friday. He understood that the defendant left most of his possessions in the flat. Following the defendant’s retirement in 2010 the defendant continued to visit him from time to time. The defendant visited his other children, and visited relatives interstate.

32      Robert was cross-examined. He said that he paid the defendant’s mobile phone account. He did not have the relevant mobile phone accounts with him. They were at his home. The defendant stayed at his home for varying periods of time. It was sometimes a day or three days. He had visited the defendant on a number of occasions, but he did not say when he made those visits. He would knock on the door, and would then go out with the defendant. During re-examination he said that the periods the defendant stayed at his home were sometimes one day, but sometimes more than a week.

33      Both Bill and Robert said that they did not involve themselves in the defendant's life to any great degree. The impression which I gained from their evidence was that they were concerned for their father, but because he was a man who was capable of independent living that they did not concern themselves much with what he did on a day-to-day basis.

34      Mr Maloney expended a fair amount of time cross examining the defendant, Bill and Robert regarding whether there were accounts for services connected to the flat which they had in their possession. The defendant said that he disposed of those accounts after he paid them. Robert said that he had accounts for the defendant’s mobile phone which were at his home. The purpose of the cross examination was to demonstrate that the defendant had documents in his power and control which were likely to show that he was not using the flat.

35      Mr Maloney tendered a Yarra Valley Water account. It was issued on 14 October 2011. The billing period relevant to the account showed a demand for $189.37. Mr Maloney submitted that the water usage was very lean suggesting that whoever was living in the flat was either using very little water and sewerage, or that it demonstrated that the flat was rarely used. In a similar way Mr Maloney tendered an electricity account. It was for the period 18 June to 13 September 2011 for $143.52. He submitted that it was very lean use of electricity also demonstrating that the flat was rarely used.

Findings

36      I accept the evidence of Mrs Dams and Mrs Wilding in whole. I consider that they gave their evidence fairly and in a well considered way. They did not depart from what they deposed to in their affidavits and their evidence in chief.

37      I also accept the evidence of Mr Ryan that he did have a conversation with the defendant who told him that he had moved to Geelong. I do not accept the defendant’s evidence that the conversation did not take place. It is the same statement which was made to both Mrs Dams and Mrs Wilding. I think the fact that the defendant said he was moving to Geelong to both Mrs Dams and Mrs Wilding makes it more likely than not that he had the same conversation with Mr Ryan.

38      I accept the evidence of Mr Knight that he visited the premises on a significant number of occasions, and rang the doorbell and knocked on the door of the flat without obtaining any response. I accept that he knocked on the door loudly enough for someone inside the flat to have heard the knock. I also accept his evidence that the surveillance recorded on the hard drive only demonstrates the defendant obtaining mail and then leaving the premises on a small number of occasions.

39      I also accept the evidence of Mr Knight that he entered the flat 26 August 2011 and found little to suggest, from what he observed, that the flat was occupied.

40      It is clear from the evidence of Bill that he lived in the flat for 10 months in 2010 and for four months up to June 2011 on a full-time basis. It is also clear from the evidence of the defendant and Robert that while the defendant was working in Geelong he stayed at Robert’s home during the week leaving on a weekend. Robert assumed the defendant returned to the flat on weekends. It is also clear that since the defendant has retired he has made a lot of trips to go fishing and to visit relatives interstate. My impression of the trips is that the defendant was probably away for weeks rather than days especially when he travelled as far afield as Queensland.

41      I accept the evidence of Bill that he was living at the flat for substantial periods of time during 2010 and up until mid-2011. I accept his evidence that there were significant periods when the defendant was not present in the flat while he was living there.

42      I accept the evidence of Robert that while the defendant was working he stayed at his home from Monday to Friday, and following his retirement he continued to stay from anywhere between one day to over one week.

43      I now turn to the evidence of the defendant. The defendant is an elderly man. He is 85 years of age. He is hard of hearing. His evidence was mostly vague especially regarding how often he stayed at the flat. He was unable to say whether he stayed in the flat once a week or once a fortnight or once a month or more frequently. However, he did say that he regarded the flat as his home and that it was where he resided.

44      However, whether the plaintiff resided at the flat or not, it seems to me that it was not a great deal. If he was staying in Geelong with Robert, and with other people in Geelong, and was off on fishing trips and travelling interstate he would have been away from the flat for significant periods of time.

45      The plaintiff has produced a strong body of evidence which demonstrates that the defendant was away from the flat for significant periods of time. It does not necessarily demonstrate that the defendant was never there. However, the defendant's own evidence has left me in some doubt regarding the use to which he put the flat. My impression is that it was where he went to collect his mail, and that on occasions he stayed there, but those occasions were infrequent.

Clause 4

46      Clause 4 raises two issues which are relied upon by the plaintiff. The first is whether the occupation of the flat by Bill was in substitution for the defendant. The second is whether the defendant had taken up occupation of another property as his principal place of residence.

47      I am in no doubt that Bill was living in the flat through 2010 and the early part of 2011 as his residence. He slept there. He had his mail directed there. His occupation seems to me to have sufficient characteristics of occupation consistent with the flat being his residence.

48      The draughtsman of clause 4 intended, by the use of the word "substitution" to mean that the defendant abandoned the flat as his residence, and that some other person had entered into occupation of the flat and used it as their residence in the same manner as the defendant had before he abandoned the flat. The defendant did not deny that Bill, and Bill’s son and his girlfriend had stayed at the flat.

49      Both Mr Maloney and Mr James put a number of authorities to me in an attempt to define what a residency is and what it is to reside in a property. It seems to me that seeking a workable definition is an impossible task. A house is the building which can be used as a home. What is a home is well understood and does not need to be defined. The word "residence" I think is used commonly as a synonym for a home.

50      Mr Maloney submitted that the defendant had abandoned the flat as his residence and was doing no more than using it as his post office box. He went there to collect his mail, but not to stay. He did not treat the flat as his residence. He might have stayed there from time to time, but the occasions when he did were consistent with having abandoned the flat by substituting Bill for himself as the resident of flat.

51      Mr James submitted that it is enough for the defendant to assert that his residence is the flat even if as a post office box and an occasional place where he stayed. Permitting Bill to live there is not consistent with an abandonment of the flat as his residence because the terms of settlement do not prohibit the defendant having someone else living in the flat either full-time or on some other basis.

52      Furthermore, Mr James submitted that for the plaintiff to succeed on the second basis that the defendant had abandoned the flat the plaintiff would need to prove that he had taken up occupation of another property as his principal residence. There was no evidence from either the plaintiff or the defendant that the defendant had taken up occupation of another property as his principal residence.

53      Mr Maloney responded submitting that if the defendant became itinerant, or his whereabouts were unknown, that it would be a nonsense to prevent the termination of the life interest of the defendant and to deny the plaintiff from taking possession of the flat.

54      The difficulty I have with that submission is that it amounts to the implication of a term for which I think there is no warrant. The law relevant to the implication of terms in contract is very clear. I do not intend to resort to those authorities except to say that clause 4 is very clear in its terms. There is nothing uncertain about its drafting.

55      I am not satisfied that if the defendant has effectively left the flat, that it is enough without the plaintiff proving that the defendant had taken up occupation of another property as his principal place of residence.

56      That leaves the issue whether Bill became substituted for the defendant as the resident of the flat.

Substitution?

57      To prove that Bill became substituted for the defendant requires the plaintiff to prove that in all respects the flat became Bill’s residence. It must mean that Bill not only treated it as his residence in all respects, but that the defendant no longer treated it as his residence.

58      Mr Maloney cross examined the defendant, Bill and Robert on their collective failure to produce documents relevant to council rates; water rates, electricity accounts; telephone accounts and other documents which would, firstly, demonstrate the use of the flat, and secondly, in relation to telephone accounts where the plaintiff was when he made telephone calls. Mr Maloney tendered a letter sent by his instructing solicitor to the defendant's solicitors dated 14 February 2012 calling for telephone records to determine from the telephone accounts the mobile telephone tower near to where the call was made and the locality of the defendant when he made the calls. None were produced.

59      Mr Maloney submitted that the failure of the defendant to produce documents of that kind, and have Bill and Robert produce what documents they have of a similar kind, allows me to draw an inference against the defendant consistent with the principle in Jones v Dunkell.[1] The only documents which I find the defendant has failed to produce are the mobile phone records which are in the possession of Robert. I accept the defendant's evidence that he destroyed them because he had no reason to keep them.

[1](1959) 101 CLR 298

60      The use which Mr Maloney chose to make of the principle in Jones v Dunkell is that the mobile phone records are in the possession of Robert, and hence, accessible by the defendant. The mobile phone records would have demonstrated the defendant's usage of the mobile phone and the localities where he made use of the mobile phone. The failure to produce the mobile phone records entitles me to draw an inference that they would not have assisted the defendant in the defence of this proceeding. It also entitles me to more comfortably accept the other evidence adduced which points to the defendant having abandoned the flat, but it does not permit me to speculate as to what those documents would have shown, and furthermore, the inference cannot be used to fill gaps in the evidence or to convert conjecture and suspicion into an inference against the defendant.

61      The defendant was put on notice that the mobile phone records were of some importance by the letter of the plaintiff’s solicitors dated 7 September 2011. That letter made it clear that the plaintiff considered that he had evidence which demonstrated that Bill was substituted for the defendant.

62      I will return to the subject of whether an inference ought to be fairly drawn against the defendant later in these reasons.

Disposition

63      The amended statement of claim pleads that the defendant does not occupy the flat as his principal place of residence; that he has breached clause 4 of the terms of settlement by permitting other persons to occupy the flat in substitution for himself, and that he has commenced living at an unidentified address in Geelong.

64      I am not satisfied that the plaintiff has made out the second part of his cause of action that the defendant has taken up occupation of another property as his principal place of residence. I do not accept that moving about from place to place can be interpreted as consistent with occupying another property and it being his principal place of residence.

65      Whilst I was impressed by the evidence of Mrs Dams and Mrs Wilding that the defendant had a conversation with each of them that he was moving to Geelong I need to look behind that conversation and ask whether in fact that is what the plaintiff did.

66      The overall flavour of the evidence is that the defendant either attended at the premises or stayed in the flat intermittently through 2010 and 2011. It is clear that the dominant resident through 2010 until mid-2011 was a Bill, and for some period, Bill’s son and his girlfriend. I am left with a sense that the defendant was not using the flat as his place of residence, but was content to allow Bill, his son and his son's girlfriend to live there as if it was their residence.

67      The question now becomes whether the circumstances which the defendant allowed to prevail regarding occupation of the flat constitutes Bill being substituted for the defendant or whether it amounts to the defendant being content that Bill, his son and his son's girlfriend live there as if it was their residence, but never having abandoned the flat as his place of residence.

68      In the end I think it is more likely than not that the plaintiff had conversations with Mrs Dams, Mrs Wilding and Mr Ryan that he was moving to Geelong. The fact that the plaintiff stayed with his son, Robert, for one day and sometimes for a week or more is consistent with Geelong being a locality which he preferred. He not only stayed with Robert, but also with other people. I think it is more likely than not that between Robert and those other persons that the defendant was away from the flat for significant periods of time.

69      The flat is small. It has one bedroom. It has a lounge room which is capable of being closed off so that it can be used as a second bedroom. According to Bill when the defendant, Bill and his son and his son's girlfriend all stayed at the flat at the same time, the plaintiff occupied the main bedroom. Bill’s son and his son’s girlfriend occupied the converted lounge room, and Bill slept on the couch. However, Bill did not say where he slept on the occasions when the defendant was absent. I think it rather more likely that Bill and his son and his son's girlfriend shared the two rooms in which there were beds, that is, the main bedroom and the converted lounge room. Bill, and his son and his son's girlfriend, used the undercover car park available to the resident of the flat as a store room.

70      On my analysis of the evidence I think it is fair to conclude that the defendant was not residing in the flat through 2010 and into 2011. Bill was, and so was his son and his son's girlfriend. Furthermore, I think the evidence of Mr Knight that the infrequent occasions on which the defendant went to the premises and the flat were not for the purpose of asserting that the flat was his residence, but to collect his mail.

71      The defendant's evidence was very general, and often vague. There was a quite serious lack of specific evidence of when he stayed there; the extent to which he stayed there, and when he was not staying there where he actually stayed. I have paid due regard to the fact that the defendant is an elderly man who has a difficulty with hearing and is not as intellectually acute now as he probably once was. However, that cannot be used to excuse any deficiencies in the substance of his evidence. I was likewise not overly impressed by the evidence of Bill nor Robert, but for different reasons. Robert is resident in Geelong and would have far less knowledge of his father's movements than Bill particularly during 2010 and 2011. I thought Bill's evidence was likewise general in connection with where the defendant was residing during 2010 and 2011.

72      In the end, I am troubled by the evidence of the defendant and his sons. I am not persuaded that it is a true account of the defendant’s living arrangements through 2010 and 2011.

73      I am not prepared to find that the defendant was being other than truthful when he said that after paying accounts he had no reason to retain them and subsequently disposed of them. I do not think that the mobile phone records which are in the possession of Robert would assist the plaintiff. It is quite clear on the defendant's own admission that he was often absent from the flat for significant periods of time. It seems to me that the mobile phone records would not demonstrate anything much more than the defendant's own evidence of his absences from the flat. I have proceeded to consider this matter on the affidavit evidence, the oral evidence, and the documentary evidence of the movements of the defendant over the relevant periods relied upon by the plaintiff in the pleadings.

74      It is for the foregoing reasons that I find for the plaintiff, and more particularly, that through 2010 and 2011 the flat was not the residence of the defendant and that he substituted Bill for himself as the resident of the flat through 2010 and to the middle of 2011.

Orders

75      I think the appropriate order should be that the defendant give vacant possession to the plaintiff within 30 days. However, I will hear the parties on the form of the order and any ancillary matters which are necessary to give effect to the conclusions I have reached.