BREEN v PLUMB [1992] NSWCA 29

BREEN v PLUMB

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and HANDLEY JJA 4 February 1992, 3 March 1992

[1992] NSWCA 29

APPEAL — damages — plaintiff father invites defendant daughter and de facto son to live in his cottage — arrangement that they will build second storey on cottage — defendants build their storey with money lent to plaintiff on security of War Service mortgage — defendants agree to, and make all payments of mortgage instalments and rates — family arrangement breaks down — Muschinski v Dodds — plaintiff wrongfully excluded from possession — order for possession made against defendants — damages awarded against them for wrongful exclusion of plaintiff — also for use and occupation — declared in defendants' favour that they were entitled to equitable charge over property for improvements — on appeal, questions raised about amount of charge and of damages — Held, award for wrongful exclusion sufficiently accurate, but award for occupation fee did not take into account lower rental value of defendants' part of house than plaintiff's — deduction to be made from equitable charge for present value of unpaid War Service mortgage instalments.

Samuels JA I agree with Priestley JA.

Priestley JA The proceedings from which this appeal comes were brought by Mr Plumb as plaintiff against his daughter Mrs Breen as first defendant and her de facto husband Mr Fuller as second defendant. The first instance trial was before Young J. The result favoured the plaintiff. The defendants have appealed to this court. Throughout his reasons Young J referred to the three as the plaintiff, the first defendant and the second defendant, and I will do the same.

In 1978 the plaintiff had for some time been the registered proprietor of land at Batemans Bay on which there was a single storey dwelling in which he lived. The first defendant had been living in Canberra with the second defendant; she was separated from her husband who seemed likely to be bankrupted and it was possible that the same might happen to her. The first defendant told her father she wanted to move to Batemans Bay. An arrangement was made between the plaintiff and the defendants by which an extra storey would be added to the plaintiff's house, it would be self contained and the defendants would live in it. The arrangement was carried out. The defendants went to live in the second storey of the house and are still there. However, by January 1985 the relationship between the plaintiff and the defendants had deteriorated. On 7 January 1985, there was a clash between the plaintiff and the second defendant following which the plaintiff left the house, on the basis he could not live there while the defendants were there. Later in the year he caused a notice to quit to be served on the defendants.