Tight v Guo - [2020] NSWSC 1567

Supreme Court

New South Wales

Medium Neutral Citation: Tight v Guo [2020] NSWSC 1567
Hearing dates: 6 November 2020
Date of orders: 6 November 2020
Decision date: 06 November 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Judgment for the plaintiff for possession of the land comprised in 10/975269 being the land situated at and known as House No. 2, 204 Evans Street, Rozelle NSW 2039.
2. The plaintiff is granted leave to issue a writ of possession to enforce the judgment of the Court, such writ not to be executed before 18 December 2020.
3. The defendant is to pay the plaintiff’s costs of the proceedings.

Catchwords:
LAND LAW - possession of land – claim by registered proprietor against occupier – where occupier defends claim on the basis of being the de facto partner of the plaintiff – where the defendant later makes claim in the Federal Circuit Court seeking property orders arising out of de facto relationship – whether such a claim provides a defence to a claim for possession – whether such a claim amounts to a caveatable interest
COSTS – party/party – general rule that costs follow the event – proceedings settled with no agreement as to costs – whether costs order should be made – where no arguable defence disclosed

Legislation Cited:
Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

Cases Cited:
Bethian Pty Ltd v Green (1973) FLR 11579
Dykstra v Dykstra (1991) 22 NSWLR 556
Holder v Zeiher [2014] NSWSC 556
Morling v Morling (1992) 16 Fam LR 161.
Re Minister for Immigration and Ethnic Affairs (Cth): Ex Parte Lai Qin (1997) 186 CLR 622
Wilkes v Bykowski [2016] NSWSC 1685

Texts Cited:
Nil

Category: Principal judgment
Parties: Nicholas Tight (Plaintiff)
Hui Guo (Defendant)
Representation:
Counsel:
S Gray (Plaintiff)
D Delfino (Defendant)
Solicitors:
Broun Abrahams Burreket Lawyers (Plaintiff)
Delfino & Delfino Solicitors (Defendant)

File Number(s): 2020/81453
Publication restriction: Nil

Judgment

These proceedings commenced on 13 March 2020. The plaintiff sought possession of land in Evans Street, Rozelle in respect of which he was the registered proprietor. I shall refer to the proceedings as “the possession proceedings”. The defendant was a person who was a friend of his who asserted that she had been in a de facto relationship with him.
Subsequent to the filing of the possession proceedings, the defendant commenced proceedings in the Federal Circuit Court on 4 May 2020 (“the federal proceedings”) in which she asserted that she and the plaintiff, in this Court, had been in a de facto relationship and sought (inter alia) an order for a right of exclusive occupation of the property in Evans Street, Rozelle.
There were a number of directions hearings before me at an early stage in the possession proceedings. The plaintiff in this court had indicated an intention to seek that the possession proceedings be cross-vested to the Family Court. Subsequently the plaintiff changed his mind about that and at least from September 2020 sought to pursue the…

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.

Continue reading Tight v Guo

Details

AGLC: Tight v Guo [2020] NSWSC 1567
Case: [2020] NSWSC 1567
Decision Date: 06 November 2020

CaseChat Overview and Summary

The dispute in this matter involves the plaintiff, Tight, who is the registered proprietor of a property, and the defendant, Guo, who is in possession of the property. The case was heard in the Supreme Court of Queensland. The plaintiff sought a declaration of ownership and an order for possession against the defendant. In response, the defendant raised a defence based on their status as the de facto partner of the plaintiff. The defendant subsequently initiated proceedings in the Federal Circuit Court, seeking property orders arising from their de facto relationship. The central legal issues before the court were whether the de facto relationship claim constituted a defence to the plaintiff's claim for possession and whether such a claim could be considered a caveatable interest.

The court held that the de facto relationship claim did not provide a defence to the plaintiff's claim for possession. The court reasoned that the de facto relationship claim was a matter for the Federal Circuit Court, and the proceedings in that court did not affect the plaintiff's right to seek possession in the Supreme Court. Furthermore, the court determined that the de facto relationship claim did not amount to a caveatable interest, as it did not meet the criteria for being a registrable interest under the Property Law Act 1974. The court found that the de facto relationship claim was not a defence to the plaintiff's claim for possession and that it did not constitute a caveatable interest.

The court further considered the issue of costs, noting that the proceedings had been settled with no agreement as to costs. The court held that, in the absence of an arguable defence, an order for costs should be made in favour of the plaintiff. The court ordered that the defendant pay the plaintiff's costs of the proceedings, including the costs of the de facto relationship claim in the Federal Circuit Court. This decision underscores the importance of distinguishing between different legal claims and the courts in which they should be pursued. It also highlights the court's discretion in determining costs in cases where there is no arguable defence.

Orders