Cross v Cross-Boyd [2021] NSWSC 977

Supreme Court New South Wales

Medium Neutral Citation: Cross v Cross-Boyd [2021] NSWSC 977 Hearing dates: 16 & 17 June 2021 Date of orders: 10 August 2021 Decision date: 10 August 2021 Jurisdiction: Common Law Before: Davies J Decision: (1) Judgment for the defendant. (2) The defendant is to pay the plaintiffs' costs incurred by reason of the amendment to the defence. (3) Otherwise, the plaintiffs are to pay the defendant's costs of the proceedings. Catchwords: LEASES AND TENANCIES - licences - occupancy fee - right to occupy pursuant to a Deed of Family Arrangement - whether there was a relevant default - whether acceptance of fee after default amounted to waiver - whether payments made by defendant to repair premises entitled her to offset amounts paid against weekly contributions - whether requirement in Notice of Termination that defendant continue to pay occupancy fee until property vacated waived the default – whether defendant entitled to relief against forfeiture – whether relief could be granted where defendant had no proprietary or possessory rights - where defendant's payments were up to date by time of hearing – where no unconscionability shown - whether occupancy arrangement constituted a residential tenancy agreement – effect of s 119 of the Residential Tenancies Act CIVIL PROCEDURE – amendment – late application to amend defence – where change of counsel – where new defences raised points of law – where no further evidence required – where no need for adjournment – leave to amend granted Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 58 Residential Tenancies Act 1987 (NSW) s 3 Residential Tenancies Act 2010 (NSW) ss 13, 81, 82, 119 Uniform Civil Procedure Rules 2005 (NSW) r 6.8 Cases Cited: Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd [2017] NSWSC 1230; (2017) 324 FLR 378 Ayers Rock SkyShip Pty Ltd v Voyages Indigenous Tourism Australia Pty Ltd [2019] NSWSC 828 Byron Bay Retirement Villages Pty Ltd v Zandata Pty Ltd [2008] NSWSC 1123 Case v Frimont [2021] NSWCA 30 Cohen-Hallaleh v Cyril Rosenbaum Synagogue [2003] NSWSC 395 Kay v Playup Australia Pty Ltd [2020] NSWCA 33 Owendale Pty Limited v Anthony (1967) 117 CLR 539; [1967] HCA 52 Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825 Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55 Texts Cited: Nil Category: Principal judgment Parties: William Patrick Cross (First Plaintiff) Gregory Thomas Cross (Second Plaintiff) Virginia Frances Cross -Boyd (Defendant) Representation: Counsel: L Fermanis (Plaintiffs) N Newton (Defendant)