Stamp v Whall

[2018] NSWSC 1811

Supreme Court

New South Wales

Medium Neutral Citation:

Stamp v Whall [2018] NSWSC 1811

Hearing dates:

23 November 2018

Date of orders:

23 November 2018

Decision date:

23 November 2018

Jurisdiction:

Equity - Duty List

Before:

Lindsay J

Decision:

(1) Upon determination of a separate question, pursuant to the Uniform Civil Procedure Rules 2005 NSW, rule 28.2, DECLARE that the defendant has no right, title or interest in premises located in Ady Street, Hunters Hill, in the state of New South Wales, other than a right of tenancy subsisting pursuant to a residential lease dated 20 June 1988.

 

(2) ORDER that the defendant, no later than 26 November 2018, withdraw caveat number AN855390.

 

(3) NOTE that, without admissions of any kind, the plaintiff (by her counsel) gives to the Court an undertaking that she will not, by herself, her servants or agents, re-enter into possession of the premises at Hunters Hill without first obtaining from the NSW Civil and Administrative Tribunal an order (under the Residential Tenancies Act 2010 NSW) authorising her to do so or the leave of the Court.

 (4) NOTE that the plaintiff’s undertaking is not intended to preclude the plaintiff from serving any notice, or taking any step, ancillary to the conduct of proceedings in the NSW Civil and Administrative Tribunal for the purpose of recovery of possession of the premises the subject of the undertaking.

Catchwords:

LANDLORD AND TENANT – Residential lease – Tenant claimed life estate in lieu of tenancy – Claim not established

Legislation Cited:

Property (Relationships) Act 1984 NSW
Residential Tenancies Act 2010 NSW
Uniform Civil Procedure Rules 2005 NSW

Cases Cited:

-

Texts Cited:

-

Category:

Principal judgment

Parties:

Plaintiff: Audrey Edith Stamp
Defendant: Arthur Whall

Representation:

Counsel:
Plaintiff: M Fernandes
Defendant: N Condylis

  Solicitors:
Plaintiff: Ronald S Czinner & Co, Solicitors
Defendant: Owen Hodge Lawyers

File Number(s):

2018/00355313

Judgment

INTRODUCTION

1. These reasons for judgment are published (on Monday, 26 November 2018) in support of orders made, in the evening of Friday 23 November 2018, upon the determination of a separate question (stated by an order made under rule 28.2 of the Uniform Civil Procedure Rules 2005 NSW) heard that day in the Duty List.

2. Urgency attached to a determination of the separate question because it underpinned a caveat (recently lodged by the defendant upon the title to land owned by the plaintiff) which operated as an impediment to the conduct of an auction (long planned by the plaintiff, on notice to the defendant) for sale of the land scheduled for the morning of Saturday 24 November 2018.

3. The plaintiff is a 90-year-old widow who lives in Ady Street, Hunters Hill. She is the registered proprietor, not only of her home, but of the residential property next door.

4. The next door residence, also in Ady Street, is occupied by the defendant, a single man aged 70 years. It is that property (“the subject property”) which the plaintiff planned to offer for sale, at the auction scheduled for 24 November 2018, on terms that included an obligation to give vacant possession to the property on completion of any contract for sale.

5. At issue between the parties were the terms upon which the defendant occupies the subject property.

6. The plaintiff accepted that the defendant occupies the property pursuant to an agreement which is a “residential tenancy agreement” within the meaning of section 13 of the Residential Tenancies Act 2010 NSW. The defendant contended that he was entitled, in equity, to a life estate in the property.

THE RESIDENTIAL TENANCIES ACT 2010 NSW

7. A “residential tenancy agreement” can be terminated only in the circumstances set out in the Residential Tenancy Act: section 81(1). Those circumstances include:

1. a consensual surrender of vacant possession by the tenant, upon service of a notice of termination by the landlord (sections 81(2) and 81(4)(e)) ;

2. an abandonment of the residential premises by the tenant (section 81(4)(d)); and

3. the making by the NSW Civil and Administrative Tribunal (NCAT) of an order under the Act, terminating the agreement (section 81(3)).

8. A landlord or former landlord is precluded from commencing proceedings against a tenant or former tenant in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises: Residential Tenancy Act, section 119. The Act, by section 219, prohibits any attempt to “contract out“ of the Act; by the terms of that section, a person must not enter into any contract or other agreement with the intention, either directly or indirectly, of defeating, evading or preventing the operation of the Act.

9. The grounds upon which NCAT may terminate a residential tenancy include circumstances in which:

1. a landlord has served upon the tenant a termination notice for a periodic agreement, specifying a termination date not less than 90 days ahead: Residential Tenancies Act, section 85.

2. a landlord has served on a tenant a termination notice (allowing not less than 30 days notice) on the ground that the landlord has entered into a contract for the sale of the residential premises under which the landlord is required to give vacant possession of the premises: section 86.

3. a landlord has served on the tenant a termination notice (allowing not less than 14 days’ notice) on the ground that the tenant has breached the residential tenancy agreement: section 87.

4. a tenant has been in continual possession of the same residential premises for a period of 20 years or more, the fixed term of any original tenancy agreement has expired, and the Tribunal is satisfied that it is appropriate to make a termination order allowing the tenant not less than 90 days to give vacant possession of the premises to the landlord: section 94.

THE FACTUAL MATRIX AND COMPETING CONTENTIONS

10. The plaintiff contends that the defendant has no right, title or interest in the subject property other than a leasehold interest which, in proceedings numbered RT18/43700 presently pending in the Consumer and Commercial Division of NCAT, she seeks to have terminated by reference to sections 86, 87 and 94 of the Residential Tenancies Act.

11. The defendant has occupied the subject property since 22 June 1988, upon which date commenced a fixed term of six months (with provision for holding over on a monthly tenancy) under a “residential lease” dated 20 June 1988 between the plaintiff’s late husband as landlord and the defendant as tenant. The rent payable under the lease was originally $160 per week. It was later increased to $180 per week.

12. The plaintiff’s husband died on 6 April 2018, leaving a will dated 11 May 2011 (probate of which was granted to the plaintiff on 26 June 2018) the effect of which was to appoint the plaintiff as his sole executor and beneficiary.

13. On or about 12 July 2018 the plaintiff became registered proprietor of the subject property.

14. If the “residential lease” dated 20 June 1988 (without more) continues to govern the terms upon which the defendant occupies the subject property then, as her late husband’s successor in title, the plaintiff is (within the meaning of section 3 of the Residential Tenancies Act) “landlord” to the defendant as a “tenant” entitled to the regulatory protections for which the Act provides.

15. It is accepted by both parties that, although the “residential lease” dated 20 June 1988 was executed before enactment of the Residential Tenancies Act, the Act is the legislation to which (so far as legislation governs any rights of tenancy enjoyed by the defendant) reference must be made.

16. The defendant contends that:

1. the “residential lease” dated 20 June 1988 was surrendered by him between 30 November 2011 (when, with the agreement or forbearance of the plaintiff and her late husband, he ceased making payments of rent) and 2 April 2013 (when an agreement was made for him to provide services to the plaintiff and her husband “in lieu of rent”, and for their payment to him of an additional $700 per fortnight).

2. in late 2011, and in 2012, the plaintiff made a number of statements to him (upon which he grounds a claim in equity to an estoppel operating against her) to the effect that he could remain in occupation of the subject property indefinitely after her death (if not for the rest of his life) because he would be “provided for”.

3. on 2 April 2013 the plaintiff and the defendant made a contract to the effect that, in consideration for his provision of services to the plaintiff and her husband in lieu of rent under the residential lease dated 20 June 1988, he would be paid $700 per fortnight and be granted a life estate in the subject property.

17. For the purpose of these reasons, I assume that any statements made by the plaintiff to the defendant, and any contract made between them, were made by the plaintiff on behalf of herself and her husband. By an instrument dated 15 February 2011 (registered on 13 July 2011 as Book 4615 Number 851), the plaintiff and two others were appointed, jointly and severally, as “enduring” attorneys of the plaintiff’s husband.

THE DEFENDANT’S CAVEAT

18. On 13 November 2018 the defendant lodged against the title of the subject property (folio identifier 6/436309) a caveat (dealing number AN855390) in which he claimed a “life estate” in the subject property by virtue of an agreement said to have been made between himself and the plaintiff.

19. The agreement was particularised in the caveat as “Oral Agreement supported by acts of part performance and conduct of the parties, that in return for the Caveator’s care and other services, the Caveator would be paid a sum of money on a fortnightly basis, and is entitled to the occupation and possession of the property for the duration of his life”.

PROCEEDINGS RESPONSIVE TO THE CAVEAT

20. Upon an ex parte application to me as Duty Judge on 19 November 2018, the plaintiff filed a summons seeking an order that the defendant remove his caveat “by 4 pm on Friday 23 November 2018”.

21. With an abridgment of the time for its service, the summons was made returnable before me as Duty Judge at 2 pm on 20 November 2018.

22. On that occasion I gave directions, towards there being a hearing of the proceedings on the afternoon of 22 November 2018, predicated upon notations to the following effect:

1. Note that the plaintiff contends that the defendant has no right, title or interest in the subject property other than a leasehold interest which, in the pending NCAT proceedings, the plaintiff seeks to have terminated by orders made under or by reference to sections 86, 87 and 94 of the Residential Tenancies Act.

2. Note that the defendant contends (as particularised in his caveat) he is entitled to a life estate in the property.

3. Note that on 8 November 2018 NCAT made orders predicated upon an entitlement in the plaintiff to conduct an auction on 24 November 2018 for sale of the property.

4. Note that the plaintiff’s application to NCAT for orders terminating any entitlement the defendant may have to a lease of the property is listed for hearing in the Tribunal on 17 December 2018.

23. On 21 November 2018 the defendant filed a cross summons in support of his claim that the residential lease dated 20 June 1988 had been surrendered and that he was, in equity, entitled to a life estate in the subject property.

24. The cross summons included “further and alternative” claims for the payment of “equitable compensation” and “restitution for… services… performed [for] the plaintiff which were un-remunerated”, as well as a claim for “a life estate or any other interest the Court finds appropriate under section 20 of the Property (Relationships) Act 1984 NSW”.

25. On the afternoon of 22 November 2018 the proceedings were listed for final hearing at 10.00 am on 23 November 2018.

26. In the morning on 23 November 2018 I declined an application by the defendant for an adjournment of the hearing in circumstances in which: (a) any adjournment of the proceedings (without a determination whether the defendant was entitled to maintain a caveat claiming a life estate in the subject property) was likely to impede the plaintiff’s scheduled auction sale; (b) the defendant had been on notice of the auction sale since at least 20 September 2018; and (c) he had lodged his caveat against the title of the subject property only on 13 November 2018, a date too late to allow the plaintiff an opportunity to serve a “lapsing notice” pursuant to the Real Property Act 1900 NSW, section 74J.

27. Having created a situation in which the plaintiff was in urgent need of a determination whether the defendant is entitled to a life estate in the subject property, the defendant could not complain that, even if it caused the plaintiff’s auction plans to miscarry, he was in need of a more leisurely approach to a final hearing of his claim to a life estate.

28. In order to accommodate any broader claim that the defendant might have, and to focus attention on a determination of the question requiring urgent consideration, I suggested to the parties that they agree upon the formulation of a “separate question” (pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005), directed towards a timely determination of the defendant’s claim to a life estate.

29. They agreed upon the following formulation of such a question: “Whether the defendant has any right, title or interest in the premises located at… Ady Street, Hunters Hill, in the state of New South Wales, being Lot 6 in Deposit Plan 436309, other than any interest that may or may not subsist pursuant to the residential lease dated 20 June 1988”.

30. An order having been made under UCPR rule 28.2, that separate question proceeded to a final hearing on the afternoon, and in the evening, of 23 November 2018.

31. The plaintiff read affidavits of herself; her niece Margaret Teh (a grantee of her power of attorney); Kevin Bell (a nephew, and one of the enduring attorneys, of the plaintiff’s husband); and John Vincent (a principal of real estate agents, retained by the plaintiff). Counsel for the defendant cross examined the plaintiff and her niece.

32. The defendant relied upon an affidavit affirmed by himself and two affidavits sworn by his solicitor. Counsel for the plaintiff cross examined him.

33. At the conclusion of the evidence both counsel addressed the Court. They agreed that orders could be made for determination of the separate question and consequential relief on the basis that reasons for judgment would be published at a later date, so as to enable the parties to know the Court’s decision in advance of the scheduled auction.

34. That is the course that was followed. A declaration was made to the effect that the defendant has no right, title or interest in the subject property other than any right of tenancy subsisting pursuant to the residential lease dated 20 June 1988. An order was made for the defendant to withdraw his caveat no later than 26 November 2018. An undertaking (without admissions) was extracted from the plaintiff that she will not re-enter into possession of the subject property without first obtaining from NCAT an order authorising her to do so or the leave of the Court.

ELABORATION OF FACTS AND CONSIDERATION

35. In my judgement, the defendant’s claim to an equitable life estate must fail for want of a proper factual foundation. In my judgment, his rights (entitled to protection within the regime for which the Residential Leases Act provides) rise no higher than a “residential tenancy agreement” termination of which requires a determination of NCAT in the absence of an earlier consensual resolution.

36. Although it might not be appropriate to describe the defendant, in any strict sense, as a “carer “ of the plaintiff and/or her husband, he did provide regular services for them in attending to maintenance of their residence, and in assisting them in routine activities associated with the ordinary affairs of their lives as elderly neighbours.

37. He provided such services on a regular basis from about 30 November 2011 (when, because of constraints on his own finances, he stopped paying rent as a tenant holding over from month to month under the residential lease dated 20 June 1988) until April 2018 or thereabouts (about 5 months after he was first asked by the plaintiff, on or about 13 December 2017, to vacate the subject property). From time to time since April 2018, he has performed neighbourly acts for the plaintiff when asked to do so by her family.

38. At the time the defendant stopped paying rent, on or about 30 November 2011, the rent payable by him under his lease was $180 per week.

39. The level of services provided by the defendant for the plaintiff and her husband diminished substantially following arrangements made (in or about December 2013) for the plaintiff to receive services provided by Catholic Community Care. Her husband had moved from respite care to full-time residential care at a nursing home in February 2013. By 2016, he needed high-level nursing care.

40. Between 15 April 2013 and 1 May 2018 or thereabouts, by automatic funds transfers from her bank account to that of the defendant, the plaintiff paid the defendant $700 per fortnight. She cancelled her authorisation of those payments on 1 May 2018.

41. That there was, for many years, a close friendship between the plaintiff and her husband (on the one hand) and the defendant (on the other) is clear on the evidence. That is evident, not only in email correspondence adduced in evidence by the defendant, but also (a) in the forbearance of the plaintiff and her husband in the collection of rent from the defendant when they perceived him to be experiencing financial difficulties; and (b) in a will made by the plaintiff on 28 July 2014, when she provided for him, conditionally, to receive a substantial legacy from her estate.

42. Although the relationship between the parties became close it was essentially a business relationship. Any services provided by the defendant were expressly characterised by the parties as services “in lieu of rent” and, in addition to rent relief, the defendant received regular payments of $700 per fortnight.

43. Although the plaintiff (in her cross examination) disclaimed any description of her as a “wealthy woman”, she is possessed of considerable wealth. When her husband died, the estate he left her had an estimated value, for probate purposes, of about $7 million. Her property (including that inherited from her husband), currently, has an estimated value of about $7.27 million.

44. The defendant was not the major beneficiary named by the plaintiff in her will dated 28 July 2014, but the legacy provided for him by her in that will (since revoked) was not insubstantial. He was given a legacy of $400,000 “from the proceeds of the sale of [the subject property] provided he survives [the plaintiff] and vacates the said property within six (6) months of [the death of the plaintiff] to enable the said property to be sold with vacant possession”.

45. The defendant appears to have fallen from the plaintiff’s favour in late 2017 (if not earlier) when:

1. the plaintiff decided that, to facilitate arrangements then in contemplation for the ongoing care of her sick husband, and to free herself from concerns about having to manage the subject property, she would sell that property (as she was empowered to do as her husband’s attorney);

2. she asked the plaintiff to vacate the subject property to enable it to be sold with vacant possession; and

3. he failed to respond constructively to her request, and to more formal requests made by the plaintiff’s husband’s attorney, Mr Bell.

46. On 22 January 2018 Mr Bell served upon the defendant a formal “Notice to Terminate Tenancy Agreement” in which the defendant was given (pursuant to section 85 of the Residential Tenancy Act) 90 days to vacate the subject property. At the time that Notice was served on the defendant, acknowledging to Mr Bell that it was time for him to move on from the subject property, he said, “I thought I might get another 5 years out of it.”

46. The defendant has not vacated the property but, with assistance from the real estate agency retained by the plaintiff to effect a sale of the property (in particular, Mr Vincent), on 27 August 2018 he entered a residential lease entitling him to live in alternative rental accommodation at Woolwich.

47. Before his entry into that lease, the defendant did not respond to demands made by or on behalf of the plaintiff and her husband for vacant possession of the subject property by asserting that the residential lease dated 20 June 1988 had been surrendered, or that he was entitled to remain in occupation of the property as a life tenant or on other terms. Counsel for the plaintiff submits, with considerable force, that, had the defendant believed that he was entitled to a life estate in the subject property, it was incumbent upon him to say so on one or more of the several occasions upon which he had an opportunity, and a reason, to say so.

48. Assertions of an entitlement to a life estate first emerged when, after the defendant entered into his Woolwich lease, he consulted the firm of solicitors, Owen Hodge, now on the record for him in these proceedings.

49. On 20 September 2018 the plaintiff’s real estate agents wrote to the defendant informing him that they were making arrangements to offer the subject property for sale by public auction on 24 November 2018, and that vacant possession of the subject property would be required no later than 15 October 2018.

50. The defendant’s response came by way of a letter dated 4 October 2018 from his solicitors, Owen Hodge. It took the form of a “without prejudice” letter which recorded that the solicitors had advised the defendant not to vacate the property until a settlement had been entered into as to his (at that stage unspecified) claims in respect of the property.

51. On 5 October 2018 the plaintiff’s real estate agents wrote to the defendant acknowledging their receipt of Owen Hodge’s letter, confirming that the subject property had been placed on the market for sale, and serving on the defendant a notice under the residential lease dated 20 June 1988 requiring access to the subject property to facilitate a marketing program.

52. By another “without prejudice” letter dated 8 October 2018, sent under cover of an email of the same date, Owen Hodge protested that “until [the defendant’s] rights to possession are terminated by agreement it is far too early to commence the sales process”. They called for a copy of the residential lease; advanced a contention on behalf of the defendant that there was no lease; claimed that the defendant had been in occupation of the subject property for many years “under certain promises” by the plaintiff, which promises were said to be “still current”; and asserted that the defendant would not vacate the premises or make the property available for marketing purposes.

53. By a letter dated 9 October 2018 in reply, the plaintiff’s real estate agents provided to Owen Hodge a copy of the residential lease agreement; noted that the (Rental) Bond Board still retained the rental bond which the defendant had paid upon entry into that lease; recorded that a failure to provide access to the subject property for marketing purposes would be regarded as a breach of the lease; foreshadowed an application to NCAT for vacant possession of the property; and noted that the defendant had advised the landlady of his Woolwich rental accommodation that he planned to move into that property in the near future.

54. Evidence adduced in these proceedings confirms that the Rental Bond Board still retains a bond of $640.00 (with accrued interest) paid by the defendant in 1988 as the tenant named in the residential lease dated 20 June 1988.

55. By a letter marked “without prejudice” and, by an email of the same date addressed to the plaintiffs real estate agents, Owen Hodge disputed the currency of the residential lease dated 20 June 1988. They asserted that the defendant was “exercising certain promises as to possession” in the hope of resolving “the issues and damages without access to prolonged litigation”. They counselled the agents to seek legal advice, maintained that the defendant was under no obligation to allow access to the subject property, and threatened the agents with “injunctive proceedings” in trespass if they exercised purported rights of access to the subject property.

56. By a separate letter dated 9 October 2018 Owen Hodge wrote another “without prejudice” letter to the plaintiff “by her attorneys”, marked to the attention of Mr Bell. That letter claimed that the defendant had “at least three causes of action”. The first was an asserted entitlement to make a family provision claim against the estate of the plaintiff’s husband. The second was a claim in estoppel based upon assertions that the plaintiff had promised the defendant “that he would have continuance of the tenancy after her death”, said to ground an entitlement to compensation. The third was said to be a potential claim against the plaintiff’s estate, “when she passes away”.

57. The letter concluded with a suggestion that the parties should confer with a view to reaching an agreement that would include a date for termination of the defendant’s “tenancy” and for his vacating the property; a lump sum by way of compensation; and the entry into a formal deed of release.

58. On 10 October 2018 the plaintiff’s real estate agents wrote to each of the defendant and his solicitors noting that they had attended the subject property that day without being given access to the property and requesting a key to the property.

59. The plaintiff commenced proceedings in NCAT on 12 October 2018.

60. On 16 October 2018 the plaintiff’s solicitors wrote to the defendant’s solicitors, inter alia, noting that they had been provided with copies of the defendant’s solicitors’ without prejudice letters and that they had been instructed that the defendant had been “more than adequately compensated for his services”.

61. On 18 October 2018 the defendant’s solicitors wrote to NCAT, noting the pendency of proceedings commenced on behalf of the plaintiff. They asserted that the proceedings involved complex questions of law, including whether the residential lease dated 20 June 1988 was valid (they asserted that it was not) and the nature of the defendant’s “rights (acquired) by estoppel for his continued use of the premises”. They asserted that “in about 2011 (or possibly 2009) the owners (of the subject property) including (the plaintiff) gave (the defendant) “a licence subject to certain care provisions” which “included promises as to continued residency and provision” for the defendant’s “retirement”.

62. The letter asserted also that the 1988 lease “was vacated pursuant to a conversation between [the plaintiff, the defendant] and in the presence of [the plaintiff’s niece Margaret] her power of attorney together with her accountant”. That this was a reference to a conversation that is said to have occurred on 2 April 2013 is confirmed by enclosure with the letter of “a copy of notes taken on 2 April 2013”.

63. The letter asserted that the defendant had been “promised an extended licence to occupy the premises for a substantial period after the death of” the plaintiff. It asserted that in 2014 the defendant had “made a new will and she has intimated to [the defendant] that she has made substantial provision for him including his right to continue in the residence until his death”.

64. The letter asserted, further, that the defendant would not vacate the premises without a reasonable settlement being made; but that, once settlement was agreed, he would move within a reasonable time allowing for packing - he being “ready and willing to vacate” in such a circumstance.

65. By a letter dated 2 November 2018 the plaintiff’s solicitors protested inaccuracies in the defendant’s solicitors’ letter to NCAT. They refuted the defendant’s allegation that the 1988 lease had been “vacated” and that the defendant was no longer a tenant of the property. They remarked that, “[as] to the care provisions you fail to mention that [the defendant] was paid $700 a fortnight from 4 March 2013 until 1 May 2018 for his services”.

66. As to the proceedings in NCAT:

1. The plaintiff’s Tenancy Application was filed on 12 October 2018, seeking an order for termination of the tenancy agreement and vacant possession of the subject premises for breach of the tenancy agreement associated with the defendant’s failure to allow access to the property.

2. On 23 October 2018, by consent, an order was made for the plaintiff to have access to the subject property for the conduct of a marketing campaign for the sale of the property.

3. On 25 October 2018 the plaintiff filed an amended Tenancy, Application seeking orders, by reference to section 94 of the Residential Tenancies Act, for termination of a long-term tenancy and amendment of NCAT’s orders to enable there to be an on-site auction of the property on 24 November 2018.

4. On 8 November 2018 NCAT, by consent, made an order authorising the plaintiff and her agents to enter the subject property between 9.00am – 11.00am on 24 November 2018 for the purpose of auctioning the property.

5. By a notice dated 14 November 2018, NCAT listed the plaintiff’s Tenancy Application for hearing on 17 December 2018.

68. The defendant’s caveat was lodged with the Registrar General on 13 November 2018.

69. On 16 November 2018 the plaintiff’s solicitors wrote to the defendant’s solicitors acknowledging the defendant’s caveat; recording that, having regard to the proposed auction of the subject property, the plaintiff did not have time to apply for a lapsing notice for removal of the caveat; and noting that the plaintiff denied the defendant’s claim of an entitlement to occupation of the subject property for the duration of his life.

70. In my assessment, the plaintiff is unlikely ever to have told the defendant that he could remain in occupation of the subject property for the rest of his life; but, equally, it is likely that she did say to him (some time before 2 April 2013) that he could remain in the property (implicitly, as a tenant) after her death.

71. She was too conscious of the property rights of her husband and herself to have intimated to the defendant that he could, or would, acquire a form of ownership in the property beyond a residential lease. Nevertheless, as she conceded in cross examination, she “may have” told the defendant that he could remain in the subject property after her death.

72. To put such a statement in perspective, one should remember that, at the time any such statement may have been made, the registered proprietor of the property was the plaintiff’s husband, not the plaintiff herself. She did not become registered as proprietor of the property until after her husband’s death.

73. The agreement made on 2 April 2013 (evidenced by a rough written note signed by the plaintiff, the plaintiff’s niece, the plaintiff’s accountant and the defendant) is to the effect that the defendant would provide services of an indeterminate character “in lieu of rent”, an acknowledgement that the defendant was, and would continue to be, a tenant otherwise liable to pay “rent”.

74. That agreement was accompanied by an agreement on the part of the plaintiff to pay the defendant, in addition to rent relief, a fortnightly sum of $700 for services to be provided.

75. It is likely that the plaintiff did say to the defendant, at some indeterminate time, that it was her intention to make provision for him in her will. However, any such statement was a statement of intention, unattended by specificity as to the nature of any “provision” to be made. It was not a promise. Nor was it a statement which could reasonably be relied upon as an irrevocable statement of intention.

76. In my assessment, the defendant did not rely upon any form of “assurance” by the plaintiff as to the future course of their relationship. Between 30 November 2011 and 2 April 2013 he was given the benefit of forbearance on the part of the plaintiff and her husband in his non-payment of rent. On 2 April 2013 that forbearance was formalised to the extent that the plaintiff (it may be assumed, on behalf of herself and her husband) agreed that they would accept the defendant’s services “in lieu of rent” and, in addition, pay him a fortnightly allowance for those services. That arrangement (to use a neutral expression) was an arrangement of indefinite duration. It was, accordingly, determinable by either side on reasonable notice.

77. What the defendant did in the provision of services was done in return for the agreed rent relief and fortnightly allowance, or as a good neighbour. It was not done in reliance upon any form of “promise” as to future benefits.

78. Although the defendant has held out against providing vacant possession of the subject property since December 2017 or thereabouts, he has done so in circumstances in which: (a) he has acquiesced in the plaintiff’s understanding that she is entitled, as landlord, to recover possession of the property; and (b) as evidenced by his solicitors’ correspondence, his principal objective appears to have been to extract a payment of money from the plaintiff, ostensibly as “compensation”.

79. I do not accept that the defendant ever received from the plaintiff a promise, or any form of assurance falling short of a promise, that he would be granted, or would be treated as if granted, a life estate – or any estate or interest in the subject property more extensive than a tenant holding over under the residential lease dated 20 June 1988.

CONCLUSION

80. For these reasons, at the conclusion of the hearing on 23 November 2018 I made orders, inter alia, to the following effect:

1. Upon determination of a separate question, pursuant to the Uniform Civil Procedure Rules 2005 NSW, rule 28.2, DECLARE that the defendant has no right, title or interest in premises located in Ady Street, Hunters Hill, in the state of New South Wales, other than a right of tenancy subsisting pursuant to a residential lease dated 20 June 1988.

2. ORDER that the defendant, no later than 26 November 2018, withdraw caveat number AN855390.

3. NOTE that, without admissions of any kind, the plaintiff (by her counsel) gives to the Court an undertaking that she will not, by herself, her servants or agents, re-enter into possession of the premises at Hunters Hill without first obtaining from the NSW Civil and Administrative Tribunal an order (under the Residential Tenancies Act 2010 NSW) authorising her to do so or the leave of the Court.

4. NOTE that the plaintiff’s undertaking is not intended to preclude the plaintiff from serving any notice, or taking any step, ancillary to the conduct of proceedings in the NSW Civil and Administrative Tribunal for the purpose of recovery of possession of the premises the subject of the undertaking.

5. RESERVE all questions of costs relating to hearing of the separate question determined by these orders.

6. ORDER that the proceedings be listed before Lindsay J on 29 November 2018 at 3:00pm for directions.

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Decision last updated: 27 November 2018