Frimont v Case [2020] NSWSC 850

Supreme Court New South Wales

Medium Neutral Citation: Frimont v Case [2020] NSWSC 850 Hearing dates: 23 June 2020 Date of orders: 3 July 2020 Decision date: 03 July 2020 Jurisdiction: Common Law Before: Davies J Decision: (1) Without disturbing the occupancy of Mark Frimont, judgment for the plaintiff for possession of the land known as 282 Blaxlands Ridge Road, Blaxlands Ridge, New South Wales, being the whole of the land comprised in certificate of title folio identifier Lot 4 in Deposited Plan 751658. (2) Leave to the plaintiff to issue a writ of possession to enforce the judgment of the Court. (3) The defendant is to pay the plaintiff's costs of the proceedings. Catchwords: LAND LAW – possession of land – where plaintiff is administrator of estate and is seeking an order for possession – where a contract for the sale of the land is pending – deceased died intestate – letters of administration taken out but administrator later died – land not transmitted to earlier administrator - where estate has been in limbo unadminstered for many years – deceased's son remained in occupation of property after deceased's death - where defendant moved into property to care for deceased's son – where deceased's son died - where defendant remained in occupation and commenced to pay portion of property rates – whether a residential tenancy agreement arose between deceased's son and defendant – whether residential tenancy agreement could be implied between defendant and unadministered estate - where defendant continues to pay rates after plaintiff appointed administrator - whether residential tenancy agreement arose by implication – whether estoppel arose from prior payment of rates – where no evidence that plaintiff knew of payments – plaintiff entitled to possession LEASE AND TENANCIES – residential tenancy agreements – where land owned by unadministered estate - whether residential tenancy agreement arose by reason of occupation of land by defendant and payment of rates by him – whether subsequently appointed administrator estopped from claiming no residential tenancy agreement existed – where no evidence of acceptance by administrator of payment of rates Legislation Cited: Conveyancing Act 1919 (NSW) s 127 Residential Tenancies Act 2010 (NSW) ss 13, 81, 119 Wills, Probate and Administration Act 1898 (NSW) s 61 Cases Cited: Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 Ermogenous v Greek Orthodox Community of S.A. Inc (2002) 209 CLR 95; [2002] HCA 8 GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973 Spark v Neers [1971] 2 NSWLR 1 Whitlock v Brew (1968) 118 CLR 445 Category: Principal judgment Parties: Pamela Elizabeth Frimont (Plaintiff) Donald Bruce Case (Defendant) Representation: Counsel: D Currie (Plaintiff) J Trebeck (Defendant)