Violet Jamil v Anthony Mansour

[2001] NSWSC 312

CITATION:	Violet Jamil v Anthony Mansour [2001] NSWSC 312
FILE NUMBER(S):	SC 11768/2000
HEARING DATE(S):	6 April 2001 and 9 April 2001
JUDGMENT DATE:	30 April 2001
PARTIES :	Violet Jamil Anthony Mansour
JUDGMENT OF:	Sully J

COUNSEL :	S. Baker - Plaintiff D. Ash - Defendant
SOLICITORS:	Ward Maxwell & Co. - Plaintiff -
LEGISLATION CITED:	Residential Tenancies Act 1987 (NSW)
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, 362
DECISION:	Judgment for the plaintiff for possession of the whole of the land known as 319 Georges River Road, Croydon Park and dwelling erected thereon.; Leave to the plaintiff to issue forthwith writ of possession; Defendant to pay the plaintiff's costs including reserved costs of interlocutory applications

SUPREME COURT OF
NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

30 April 2001

11768/2000 - Violet Jamil v Anthony Mansour

JUDGMENT

1   HIS HONOUR: By a Statement of Claim filed on 11 July 2000 Mrs. Violet Jamil as plaintiff claims against Mr. Anthony Mansour as defendant possession of certain residential premises known as 319 Georges River Road, Croydon Park, (“the subject premises”). By a defence filed on 24 January 2001 the defendant disputes the plaintiff’s claim. The defendant does not dispute that the plaintiff is, and was at all material times, sole registered proprietor for an estate in fee simple in the subject premises; and he does not dispute that he is, and has been at all material times, in sole occupation of the subject premises. The defendant asserts, however, an entitlement so to occupy the subject premises. The substance of that alleged entitlement is pleaded as follows in paragraph 3 of the defence:

“The Defendant denies that the Plaintiff is entitled to the relief sought in paragraph 3 of the Claim because any entitlement to possession said to arise from the matters pleaded in paragraph 1 of the Claim is subject to the Defendant’s right to occupy the land.
Particulars
(a) The Defendant for value holds a licence to occupy the land, by virtue of the following circumstances:
(I) In 1984, the Defendant spoke with his mother and the Plaintiff to the following effect. The Plaintiff said that she had found a house, that this was to be the family home, that the mother and the Defendant could pay out the cost price of $50,000 whenever they could afford it for the transfer of title, that the Defendant was to do what he could in maintenance and in cutting the lawns, and that the Defendant was to give whatever he could afford towards the cost of the house to his mother who would pass the money on to the Plaintiff for that purpose.
(II) The Defendant around the time of the conversation and thereafter did work on the property including painting and stripping. With the Plaintiff he hired a floor sander. The Defendant sanded the floor. Both the parties polished the floor. The Defendant replaced windows, laid the back lawns, repaired the fence, and (by himself or with a handyman) effected plumbing repairs.
(III) The Defendant paid to his mother $30-$50 a fortnight in accordance with the arrangement to contribute to the cost of the house.
(b) No party to the licence has terminated it.”

2 I am satisfied that all other relevant formalities which are required by the Supreme Court Rules have been complied with by the plaintiff. I am, therefore, satisfied that the plaintiff is entitled to possession of the subject premises unless the defendant can establish on the probabilities the existence of a licence for value as pleaded in his Defence.

3   In that connection, and bearing in mind both the history of the present litigation and the conduct of the final hearing, I think that it is useful to recall at the outset of this judgment the following observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, 362:

“Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

4   Guided by those principles, I am of the opinion that the available evidence justifies the following propositions:

[1] There are only three people who, on the defendant’s version of relevant events, were present when the alleged agreement as pleaded in paragraph 3 of the Defence was reached. Those three people are the plaintiff, the defendant, and their late mother. The defendant asserts an agreement as pleaded in his Defence; the plaintiff flatly denies it; and there is no way of knowing what their late mother would have said on the topic had she been available to give evidence.

[2] So far as direct oral evidence is concerned, the resulting situation is one of the word of the plaintiff against the word of the defendant. It becomes, therefore, necessary to look with some care at what else, if anything, is available to corroborate the one or the other of those two diametrically opposed versions.

[3] On or about 3 November 1998 the defendant lodged with the Registrar-General a Caveat against the registered title of the subject premises. The Caveat itself was duly registered on or about 9 November 1998. The estate or interest claimed by the defendant in the subject premises is stated as follows in the Caveat:

“Pursuant to a Deed of Option between the Registered Proprietor and the Cavetor (sic) to purchase the subject property at cost price, being an oral agreement.”


There is no explanation from the defendant as to what exactly he had in mind by the reference to a “Deed of Option” . It seems clear that there never was any such “Deed of Option” of a formal documentary kind. It seems to me that the defined interest as expressed in the Caveat is significantly inconsistent in concept with a licence for value of the kind upon which the defendant now relies. The available evidence does not seem to me to give any explanation of this apparent inconsistency.

[4] The defendant gave evidence that he did in fact pay $30-$50 a fortnight to his late mother in accordance with the agreement upon which he now relies. There is no documentary evidence to corroborate that assertion.

[5] The defendant gave, similarly, evidence of his having done things to, and in connection with the maintenance of, the subject premises. It seems clear that the defendant has indeed done over the years what might be described as odd jobs of one kind and another in, and to, and around the subject premises. There is not a great deal of particularity about such evidence as there is on this topic; and I am not persuaded that there is about the work done such a character and quality as is consistent, on the balance of probabilities, with the existence of a particular licence for value of the kind upon which the defendant now relies.

[6] There were tendered at the hearing, and admitted as Exhibit C in the plaintiff’s case, two files from the NSW State Department of Housing. They are files concerning dealings between the Department and the defendant in connection with the provision to the defendant by the Department of subsidised public rented housing accommodation. The earliest dealing between the defendant and the Department seems to have taken place in about March of 1984 when the defendant applied for public housing accommodation for himself and his then wife. In due course such housing was made available to the defendant. The subsequent history of the dealings between the defendant and the Department is lengthy, convoluted, not infrequently acrimonious, and punctuated by eviction proceedings, eviction threats, negotiations and agreements respecting the payment of rental arrears, and applications by the defendant for relocated accommodation.

One of the departmental files contains material that is relevant to an application made by the defendant in about August/September 1985 for an allocation of housing of such a kind as would permit him to bring his late mother to live with him. In that connection the late Mrs. Josephine Mansour was required by the Department to complete a written application for permission to live in departmental premises as an additional occupant not requiring housing in her own right. Mrs. Mansour did so, the date of her application being 17 September 1985. One of the questions asked of her in the application form is:

“Do you, or any member of your family to be housed with you, presently own or have an interest in a residential property?


Mrs. Mansour’s answer was: “No” .

The same departmental file contains a report dated 17 June 1985 and made by a supervisor at the Sydney Regional Office of the Housing Commission of NSW. The report contains, among other observations, the following:

“As has been stated previously on file by other Commission Officers, ………(the defendant) ……….. today was again vague on most subjects. He seems to say a lot but tells you little. He feels very much in control of things but doesn’t really know what’s happening. It seems that his family and his wife have allowed him to take this control.
(The defendant)………..stated I had been unable to find him home before this day as he had stayed a few days with his mother who was unwell and then had to escort her to her Social Security Office for various reasons. (The defendant) also stated that he would like his mother to move in as she needs his care and he at times requires her support.”


There is on the same file a carbon copy of a letter written by the departmental regional manager on 17 September 1985. The letter is addressed to the late Mrs. Mansour at the address of the Housing Commission accommodation of which the defendant was then the tenant. The letter notifies the late Mrs. Mansour that the Housing Commission has no objection to accommodation being provided for her at that address on the understanding that she will not thereby acquire necessarily any tenancy rights or rights of tenancy succession.

These events do not seem to me to sit comfortably with the present contentions of the defendant to the effect that he moved into the subject premises as a licensee for value and for the purpose, among others, of being on hand to support in those premises his late mother.

Nor does the history to be drawn from the departmental files tend to support the defendant’s present contention that since 1984 he has paid $30-$50 a fortnight to his late mother in accordance with the agreement upon which he now relies. Throughout the whole period covered by the departmental files the defendant was in constant arrears with his rental payments; he was constantly applying for improved rental rebates upon the basis that he was barely living from hand to mouth on the various social security entitlements which were available to him; and he was embroiled from time to time in matrimonial disputes of various kinds. The overwhelming impression made by the departmental material is, not that it was literally impossible for the defendant to have made at least some such fortnightly payments as he alleges he did make, but that it is highly unlikely that in fact he did so.

[7] Tendered at the hearing and admitted as Exhibit D in the plaintiff’s case is an application by the defendant to the Family Court of Australia asking that filing fees payable in connection with a projected appeal to the Full Court be waived because a requirement that he pay the fee would cause him hardship. The application is verified by an affidavit sworn on 22 June 1994. It discloses total income of $324.00 per fortnight and total expenditures of $320.00 per fortnight. This material seems to me to strengthen significantly the unlikelihood that the defendant has in fact made regular fortnightly payments consistently with the requirements of the licence for value upon which he now relies.

[8] The defendant tendered at the recent hearing, and I admitted as Exhibit 1 in his case, two substantial folders of documents. I accept that they establish that for some time the defendant has represented the subject premises as being his regular residential and business address. In the circumstances of this case, that consideration does not take the defendant very far in the direction of proof on the probabilities of the alleged licence for value.

[9] The plaintiff’s evidence that there never was any such agreement as is now asserted by the defendant was attacked as being inconsistent with action taken by her in September 1999 in the Residential Tenancies Tribunal. On 7 September 1999 the plaintiff lodged with the Residential Tenancies Tribunal an application for orders pursuant to the Residential Tenancies Act 1987 (NSW) . The orders in fact sought were expressed as follows:

“1. An order ending the tenancy agreement and taking possession of the premises
tenant refuses to pay rent
tenant is destroying the premises
tenant refuses to pay water usage
tenant has threatened the landlord with physical violence
2. An order to pay rent owing from 27 October 1998 to 7 September 1999. 45 weeks at $200/week. Total = $9,000
3. An order to pay water usage of $231.10
4. An order to clear all rubbish accumulated by and belonging to the tenant
(14 days notice given to tenant on 16 August 1999)”


[10] In that same application the plaintiff stated as follows her reasons for requesting such orders:

“The tenant (my brother) moved into the property when mum died. Promised to sign a lease and pay rent of $200 a week. I have constantly asked him to leave or pay rent, he refused. I gave him extra time because of mum’s death. To this date he refuses to leave or pay rent.”

On 23 September 1999 the Residential Tenancies Tribunal in fact dismissed the application on the basis that it had no jurisdiction to determine the application because:

“Condition re note on termination not complied with and not sufficient proof that residential tenancy agreement exists.”


The plaintiff’s explanation for the glaring inconsistency between what she told the Residential Tenancies Tribunal in 1999 and what she now tells this Court was not, in my opinion, at all impressive. As best I could follow the plaintiff’s explanation, it came down to this: she wanted to get the defendant out of the subject premises; the legal advice available to her was that it might be worth an attempt to achieve that objective by an approach to the Residential Tenancies Tribunal; the defendant had told police officers who had been called to the subject premises in connection with a particular fracas, that he was in fact a tenant of the premises; and it seemed to be a reasonable approach to take him at his word and to proceed accordingly in the Tribunal. I do not say that I positively disbelieve this evidence: indeed I am inclined, rather, to accept the thrust of it as being consistent with the general impression that I have of the plaintiff, namely, that her attempts to get the defendant out of the subject premises have brought her to such a point of exasperation that she has been prepared to take practically any legal step available or plausibly available, for that purpose.

[11] There is some evidence of acts of significant generosity on the part of the plaintiff towards the defendant in the matter of the payment by her of his debts. It is submitted for the defendant that this evidence tends to rebut any inherent improbability that the plaintiff would have agreed to become party to an arrangement of such apparent generosity to the defendant as the licence for value upon which he now relies. That is, I daresay, one way of regarding that evidence. It seems to me, however, that the evidence is just as consistent with the proposition that it is unlikely that the plaintiff, being all too well aware of the straitened financial circumstances and prospects of the defendant, would have agreed to an arrangement which left him paying off either the whole, or a substantial part of, an amount of $50,000 by instalments of $30-$50 per fortnight.

[12] All of the foregoing considerations seem to me to produce, if ever a case produced, an example of those “inexact proofs, indefinite testimony, ………. (and) ………… indirect references” of which Dixon J spoke in Briginshaw . That being the overall condition of the evidence, and having regard to the nature and consequences of the issue tendered by paragraph 3 of the Defence, I am not satisfied on the balance of probabilities that the licence for value there pleaded has been established.

5   The Court therefore orders:

1. that there be judgment for the plaintiff for possession of the whole of the land comprised in Certificate of Title C/304993 and of the dwelling house erected thereon and known as 319 Georges River Road, Croydon Park in the State of New South Wales;

2. that the plaintiff have leave to issue forthwith a writ of possession but that such writ lie in the Registry of the Court for a period of twenty-eight (28) days from today. Thereafter the writ may be enforced without further order.

3. that the defendant pay the plaintiff’s costs including the reserved costs of interlocutory applications;

4. that the exhibits remain in Court for a period of twenty-eight (28) days from today. Thereafter they may be handed out to the parties respectively entitled to them unless there shall have been instituted within that period of 28 days an appeal from any part of this judgment, in which latter event the exhibits will remain in Court until further order.

**********

Last Modified: 05/01/2001