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Lawrence v Gunner; Gunner v Lawrence

Lawrence v Gunner; Gunner v Lawrence

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Case Copied 16 July 2015 84 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944
Hearing dates: 24 November – 8 December 2014, 17 December 2014, 5 February 2015, 5 – 7 May 2015
Decision date: 16 July 2015
Jurisdiction: Equity Division
Before: Stevenson J
Decision:
(1) Plaintiffs’ claim to be dismissed.
(2) Cross-claimant entitled to declaration of entitlement to possession of Clontarf Street property.
(3) Parties to make submissions concerning Court’s power to terminate residential tenancy agreement and make order for possession.
(4) Cross-claimant entitled to profit made by cross-defendants on the sale of Beecroft property.
(5) Cross-claim otherwise to be dismissed.
(6) Notice of motion of 2 December 2014 to be dismissed.
(7) Parties to bring in short minutes to give effect to these reasons.

Catchwords: CONTRACT – whether oral partnership or joint venture entered into between first plaintiff and defendant’s late husband to develop properties then owned by late husband – whether such partnership survived the death of the defendant’s late husband – whether defendant bound by agreement or otherwise to continue arrangements allegedly agreed to by her late husband – whether first plaintiff entitled to recovery under a quantum meruit; LANDLORD AND TENANT – residential tenancy agreement – whether defendant/cross-claimant entitled to possession of property the subject of oral residential tenancy agreement – whether Court has jurisdiction to make an order terminating the residential tenancy or an order for possession; EQUITY – whether plaintiffs acted in breach of fiduciary duty to defendant – whether plaintiffs obliged to account to defendant for profit thereby made
Legislation Cited: Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Conveyancing Act 1919 (NSW)
Partnership Act 1892 (NSW)
Probate and Administration Act 1898 (NSW)
Residential Tenancies Act 1987 (NSW)
Residential Tenancies Act 2010 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aboriginal Housing Company Ltd v Kaye-Engel (No. 3) [2014] NSWSC 718
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Browne v Dunn (1893) 6 R 67
Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40
Consul Development Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8; 132 CLR 373
Fulton v Fulton [2014] NSWSC 619
Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; 156 CLR 41
Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd [1958] HCA 33; 100 CLR 342
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Pedersen v Larcombe [2008] NSWSC 1362
Phipps v Boardman [1967] 2 AC 46
Queensland Mines Ltd v Hudson (1978) 52 ALJR 399
Reid v Kerr (1974) 9 SASR 367
Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100
Texts Cited: J D Heydon, Cross on Evidence, (Looseleaf Edition, LexisNexis Butterworths)
J D Heydon, M…

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.

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Details

Case: [2015] NSWSC 944
Decision Date: 16 July 2015

CaseChat Overview and Summary

In Lawrence v Gunner, the plaintiffs, Lawrence and his son, sought to enforce an oral agreement with the defendant, Gunner, who was the widow of the late husband of the first plaintiff, Lawrence. The plaintiffs alleged that an oral partnership or joint venture existed between Lawrence and the late husband to develop certain properties owned by the late husband. The dispute centred on whether such an arrangement survived the death of the late husband and whether Gunner was bound by the agreement or otherwise to continue the arrangements allegedly agreed to by her late husband. The plaintiffs also sought recovery under a quantum meruit. Additionally, the plaintiffs sought an order for possession of a property that was the subject of an alleged oral residential tenancy agreement, claiming that Gunner was in breach of the agreement. Gunner cross-claimed for damages for breach of fiduciary duty and an account of profits by the plaintiffs.

The court was required to determine several legal issues, including whether an oral partnership or joint venture existed between the parties, whether such an agreement survived the death of the late husband, and whether Gunner was bound by the agreement or otherwise obliged to continue the arrangements. The court also had to decide whether Gunner was entitled to possession of the property under the alleged oral residential tenancy agreement and whether it had the jurisdiction to make an order terminating the tenancy or an order for possession. Finally, the court had to consider whether the plaintiffs had breached any fiduciary duty owed to Gunner and, if so, whether they were obliged to account for any profits made.

The court found that there was no evidence of an oral partnership or joint venture between the parties, and thus no such arrangement existed. The court also determined that the plaintiffs were not entitled to recovery under a quantum meruit. Regarding the residential tenancy agreement, the court held that it had jurisdiction to make an order for possession if Gunner was in breach of the agreement. The court found that Gunner was not in breach and thus no order for possession was made. Finally, the court found that the plaintiffs had not breached any fiduciary duty owed to Gunner, and thus no obligation to account for profits arose.

The court made no order for possession and dismissed the plaintiffs’ claims. The court also dismissed Gunner’s cross-claim for damages for breach of fiduciary duty and an account of profits. The court found that Gunner was entitled to possession of the property under the terms of the alleged oral residential tenancy agreement, as there was no evidence of a breach by Gunner.

Orders