Pluteus (No 81) Pty Ltd v O’Neil

[2019] NSWSC 923

Supreme Court

New South Wales

Medium Neutral Citation:

Pluteus (No 81) Pty Ltd v O’Neil [2019] NSWSC 923

Decision date:

18 July 2019

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1) A declaration that the Defendants have no present right to enter, occupy, or remain upon the land situate and known as 89 Bruce Road in Orange in the State of New South Wales, being land comprised in the folio identifiers:
(a) 12/718922 being Lot 12 DP 718927;
(b) 5/702416 being Lot 5 DP 702416;
(c) 6/702416 being Lot 5 DP 702416;
(d) 7/702416 being Lot 5 DP 702416; and
(e) 218/47258 and 219/47248 Auto Consol 15294-112 being Lots 218 and 219 DP 47258.
(“the Property”);

 

(2) An order that the Defendants and any other person in occupation of or present on the Property give vacant possession to the Plaintiff within 10 days;

 

(3) Leave be granted to the Plaintiff to issue a writ for possession in relation to the Property;

 

(4) Issue of a writ for possession of the land at the Property;

 

(5) Such writ is not to be executed before 50 days from today, that date being Friday, 6 September 2019;

(6) The defendants Tanya O’Neil, Josephine O’Neil, Tobias O’Neil and Don Charles Hack Jnr must pay the costs of the plaintiff of the proceedings before me on the ordinary basis, but only with regard to costs incurred by the plaintiff on and after 27 March 2019.

Catchwords:

RESIDENTIAL TENANCIES – claim for possession – whether residents in possession pursuant to lease or licence – where notice of termination purportedly given – where residents in occupation of property for several months after notice of termination purportedly given – writ of possession granted

Category:

Principal judgment

Parties:

Pluteus (No 81) Pty Ltd (Plaintiff)
Tanya O’Neil (First Defendant)
Josephine O’Neil (Second Defendant)
Tobias O’Neil (Third Defendant)
Don Charles Hack Jnr (Fourth Defendant)
Rose Masters (Fifth Defendant)
Don Vince Hack Jnr (Sixth Defendant)

Representation:

Counsel:
A Munro (Plaintiff)

  Solicitors:
Campbell Paton & Taylor (Plaintiff)

File Number(s):

2019/95613

EX TEMPORE Judgment

Introduction

1. The sad background to this dispute about possession that came before me today is as follows.

2. Mr David Aboud is a director of Pluteus (No 81) Pty Ltd (the plaintiff). The plaintiff is the registered proprietor of a number of lots of real property that together constitute 89 Bruce Road in Orange in the Central West of New South Wales (the property). About 30 years ago, the late Mr David O’Neil commenced employment for the plaintiff at the property. In about 1997, Mr Aboud and Mr O’Neil entered into an agreement whereby, as part of his recompense for his work, Mr O’Neil and his family would be permitted to live in a dwelling located on the property known as “the cottage”. At some time between 2002 and 2004, Mr O’Neil became physically incapable of continuing his work for the plaintiff (on the evidence, it is not entirely clear whether that was due to a work-related injury, or some ailment or injury unrelated to work). Still and all, Mr Aboud permitted Mr O’Neil and his family to remain in the cottage without paying rent for many years.

3. Sadly, Mr O’Neil passed away in the first half of last year. I readily infer that that inflicted much pain on his wife, Ms Tanya O’Neil (the first defendant), and their children. She and at least some of them remained in the cottage.

4. At some stage, the plaintiff decided to subdivide the property and to convert it from (as I understand it) rural to suburban, or at the least semi-rural.

5. In September 2018, the plaintiff by way of a letter from its solicitors asserted to the residents of the cottage that they were not residing there pursuant to any lease or other in agreement in writing; that no rent had ever been paid; that the first defendant and others were “bare licensees”; that the licence was thereby revoked; and that four weeks would be allowed for the residents to vacate the cottage. The letter also complained of the residents of the cottage having interfered with access of workers and machinery to the property.

6. The residents of the cottage did not vacate the premises by 10 October 2018. Instead, the first defendant and others sought relief from the New South Wales Civil and Administrative Tribunal (NCAT) sitting in Orange. Ultimately, that resistance was resolved by way of a deed of 19 October 2018, which was entered into by Mr Aboud and the first defendant, the latter with the agreement of other residents.

7. In a nutshell, the deed recited the dispute as to whether the residents were tenants or present in the cottage pursuant to a licence agreement; that the parties were in dispute about the jurisdiction of NCAT; but that, nevertheless, the parties had reached an agreement. As to that, in a nutshell, the first defendant agreed to vacate the cottage no later than 1 January 2019, and to remove all of her “personalty” before that date.

8. The first defendant and others did not vacate the cottage by that date. Instead, they commenced further proceedings in NCAT that were ultimately abandoned.

9. Eventually, things reached a point at which, by way of a letter of 29 January 2019, the solicitors for the plaintiff informed the first defendant that it would commence proceedings in this Court unless the cottage was vacated by the end of February 2019. The plaintiff also offered a sum of $1,000 that would be provided to the residents after departure. The offer was expressed to close on 5 February 2019. I might add that there is a dispute as to whether that letter was received by the first defendant; because of the firm view I have come to about this matter, that dispute does not need to be resolved.

10. The residents of the cottage did not depart in accordance with that proposal, and accordingly a statement of claim was filed by the plaintiff on 27 March 2019 (an amended statement of claim was relied upon at the hearing, but the only alteration made by it was to update the names of all of the residents of the cottage known to the plaintiff).

11. There was at least one directions hearing of the matter in this Court that took place before the hearing before me. At the latter hearing, the first defendant appeared, as did the second, third, and fourth defendants. Ms Josephine O’Neil is the daughter of Ms Tanya O’Neil; Mr Toby O’Neil is her son, and I understood Mr Don Charles Hack to be the partner of Ms Josephine O’Neil. Each of those was unrepresented, they having been unable to obtain legal representation, and they conducted themselves perfectly courteously and coherently.

Resistance to claim

12. In short, two points were made in resistance to the orders granting possession and effecting the departure of the residents of the cottage sought in the amended statement of claim.

13. The first was the proposition that, on the basis that there existed a residential lease between the occupants of the cottage and the plaintiff, the letter of 17 September 2018 did not constitute proper notice. Understandably, this legal thesis was not developed, and was expressed to be derived from some advice that had been given to the defendants by someone connected to NCAT.

14. In my opinion this line of resistance can be dismissed quickly. Even if – for the sake of argument only – there was a residential lease between the plaintiff and the late Mr O’Neil, based on a conversation between the director of the plaintiff and the asserted residential tenant many years ago, whereby the rent paid was in kind by way of labour provided by the tenant, that surely came to an end, at the absolute latest, on the death of Mr O’Neil.

15. In other words, I accept the submission of counsel for the plaintiff that, as at September 2018, the residents of the cottage were licensees, and they were given appropriate notice of one month that they must depart.

16. And in any event, even if I am wrong in that characterisation, 10 months have now passed between the time when notice was first given and today. I do not accept the undeveloped submission that all that has passed between those two dates is inefficacious, however one may characterise the legal basis upon which the residents were in the cottage as at September 2018, and that the plaintiff must somehow “start again”.

17. The second line of resistance was simply that it has been quite impractical for the first defendant and the other residents to depart, bearing in mind that they have accrued over 20 years’ worth of belongings, including domestic animals, and it has simply proven impossible for them to find other suitable accommodation. The point was also made that all of this has arisen in the context of the death of a beloved husband and father, and emotionally it has been hard indeed to accept that there must be a final departure from the home with which he was so closely associated.

18. I accept without reservation the truth of all of that. But the simple fact is that, as a matter of practical reality, the residents of the cottage have been living there for months (if not years) rent-free. Certainly, it will not be easy for them to find the same standard of accommodation or anything like it, bearing in mind that they must now pay market rates. And I also accept that all of the defendants are people who have been, and are, “doing it tough”.

19. To be weighed against that is my acceptance that the plaintiff seeks to have vacant possession of the property so that it can develop it commercially. I also accept that, 10 months having elapsed since the giving of notice in September 2018, the time has simply come whereby the plaintiff should be in a position to enjoy its legal rights.

20. As well as that, even today there is no firm plan whereby definite alternative future accommodation can be pointed to by the first defendant and the other residents.

21. The final factor that has operated on my mind is that, as I explained at the commencement of the hearing, the administrative reality is that, even were a writ of possession to issue from the Registry today, it would not be executed and enforced for a period of six weeks.

Conclusion

22. In my opinion, both as a matter of legal principle and practical justice, the plaintiff should have the orders sought in the amended statement of claim and pressed at the conclusion of the hearing. Having said that, I have expanded the grace period in proposed order 2 by doubling it, so that there will be a period of 10 days from today during which the defendants will not be in breach of my orders if they find themselves incapable of departing during that time. I have also included my initial thought that there should be a period of 50 days before force is able to be used by the sheriff to remove the residents and their belongings.

Costs

23. As for costs, a substantive hearing was conducted before me. A legal submission was made by one of the defendants (without demurrer from the others) that was devoid of merit. More importantly, the hearing should not have been necessary at all, in that the defendants should have departed, in my opinion, at the latest some weeks ago.

24. In the circumstances, I think that the plaintiff should have its costs of the hearing before me, but only those incurred after the filing of the statement of claim in this Court on 27 March 2019, and only as against the defendants who appeared today to resist the orders sought.

Orders

25. I make the following orders:

1. A declaration that the Defendants have no present right to enter, occupy, or remain upon the land situate and known as 89 Bruce Road in Orange in the State of New South Wales, being land comprised in the folio identifiers:

1. 12/718922 being Lot 12 DP 718927;

2. 5/702416 being Lot 5 DP 702416;

3. 6/702416 being Lot 5 DP 702416;

4. 7/702416 being Lot 5 DP 702416; and

5. 218/47258 and 219/47248 Auto Consol 15294-112 being Lots 218 and 219 DP 47258.

2. (“the Property”);

3. An order that the Defendants and any other person in occupation of or present on the Property give vacant possession to the Plaintiff within 10 days;

4. Leave be granted to the Plaintiff to issue a writ for possession in relation to the Property;

5. Issue of a writ for possession of the land at the Property;

6. Such writ is not to be executed before 50 days from today, that date being Friday, 6 September 2019;

7. The defendants Tanya O’Neil, Josephine O’Neil, Tobias O’Neil and Don Charles Hack Jnr must pay the costs of the plaintiff of the proceedings before me on the ordinary basis, but only with regard to costs incurred by the plaintiff on and after 27 March 2019.

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Decision last updated: 18 July 2019