Vasil & Vasil

In the matter of *Vasil & Vasil*, Mr Vasil (the applicant husband) sought orders for the sole use and occupation of a property, which was opposed by Ms Vasil (the respondent wife). The property in question had been tenanted by Mr LL for approximately thirteen years, with his fixed-term lease having expired and continued as a periodic lease. A new lease was entered into on the same day the husband filed his application.

The central legal issue before Berman J was whether the court had the power to grant the husband sole use and occupation of the property, given the existing tenancy. This required determining whether the tenancy agreement was valid and whether any equitable interest arose from it, particularly considering the timing of its execution and potential procedural irregularities. The court was tasked with assessing whether it could make findings regarding the validity of the lease and its impact on the substantive rights of the third-party tenant, Mr LL.

Berman J reasoned that the court cannot make orders that affect the substantive rights of a third party. The existence of such rights for Mr LL depended on whether he possessed an equitable lease at common law or a valid lease agreement. The evidence presented did not allow the court to definitively determine the validity of the tenancy agreement, as it was not possible to find on the balance of probabilities that the agreement was entered into after the event to defeat the husband's application. Consequently, the court was unable to make a finding in favour of the husband's application for sole use and occupation.

The application by Mr Vasil was dismissed. The court noted that if the husband's financial circumstances were as stated, alternative relief such as interim or partial property settlement or lump sum spousal maintenance might be more appropriate.