Nendy v Armstrong

[2020] QSC 380

SUPREME COURT OF QUEENSLAND

CITATION: 

Nendy v Armstrong & Ors [2020] QSC 380

PARTIES: 

PHILIP YEWIM NENDY

(applicant)

v
FRANCIS ARMSTRONG AS ADMINISTRATOR FOR
THE ESTATE OF THE LATE TERENCE KENNETH
BRIDGES

(first defendant)

SHARON ANN WATSON, GAIL MAREE GERRISH,
DEBRA LEE LAMB, SUZANNE BUCHMEULLER,
JACQUELINE HUMPHREYS, JANET KATHLEEN
ROSS AND SCOTT ANDREW HUMPHREYS

(second defendants)

FILE NO: 

BS 14192 of 2019

DIVISION: 

Trial Division

DELIVERED ON: 

18 December 2020

DELIVERED AT: 

Brisbane

HEARING DATE: 

22 and 23 October 2020

JUDGE: 

Holmes CJ

ORDERS: 

1.	The second defendants’ counterclaim is dismissed.
2.	The property at 37 Pine Street Hamilton is declared to be held on trust for the applicant, with the orders giving effect to that trust to be determined after submissions.

CATCHWORDS: 

ESTOPPEL – ESTOPPEL BY CONDUCT – EQUITABLE ESTOPPEL GENERALLY – where a property at Hamilton (“the Property”) is registered in the name of Mr Terence

Bridges, the deceased – where the applicant seeks a declaration

that the Property is held on trust for him, and an order for

transfer of its title to him – where the applicant claims an

equitable estoppel in respect of the Property on the basis that he financially and materially supported the deceased over a 20

year period in reliance on the deceased’s verbal promise that he would leave the Property to the applicant – where the

second defendants contend that s 59 of the Property Law Act 1974 precludes an equitable estoppel from arising because the

promise was not in writing – whether the applicant has

established a right to relief based on proprietary estoppel

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – LAND – ADVERSE POSSESSION – WHAT AMOUNTS TO ADVERSE

POSSESSION – GENERALLY – where the second

defendants assert a right to the Property on the basis that their grandmother, Mrs Humphreys, acquired the Property by adverse possession and left it by will to their father, who in

turn left it to them – where Mrs Humphreys occupied the

Property with the permission of the deceased for a period

spanning over 20 years, beginning in about June 1974 – where

the second defendants contend that this arrangement should be characterised as a tenancy at will which was determined at the

expiration of one year, such that the deceased’s title to the

Property was extinguished in about June 1987 by virtue of ss

13 and 24(1) of the Limitation of Actions Act 1974 – where the

applicant contends that Mrs Humphreys lived at the property with the consent of the deceased, so that time could not begin to run for the purposes of s 13 of the Limitations of Actions Act

1974 – where the applicant contends that any right Mrs

Humphreys had arising out of adverse possession was a personal right which entitled her only to make an application

to be registered – whether Mrs Humphreys was a licensee or a tenant at will – whether Mrs Humphreys, and consequently the

second defendants, acquired the Property through adverse