Oliveri v Jones [1999] NSWSC 154

New South Wales Supreme Court CITATION : Oliveri v Jones [1999] NSWSC 154 revised - 31/08/99 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 3588/94 HEARING DATE(S) : 01/12/98; 02/12/98; 17/12/98 JUDGMENT DATE : 5 March 1999

PARTIES : Giovanni Oliveri v Michael Gregory Jones & Ors JUDGMENT OF : Master Macready at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

Mr G. Rundle for the plaintiff COUNSEL : Mr E. Oliveri in person and Mr S. McMillan appeared for final submissions Mr M.D. Broun QC and Mr D.J. Durstan for the 1st defendant /trustee SOLICITORS : Romano Di Donato for the plaintiff McCabes Brown for 1st defendant/trustee CATCHWORDS : Equity. Accounting. Whether just allowance is appropriate in respect of management of property.; Trespass. Claim for mesne profits. Cross claimant who is a trustee in bankruptcy of owner does not obtain possession before action. No claim established.; Minister of the State for the Interior v R.T.Co Pty Ltd (1962) applied.; Principal and Agent. Wrongful collection of rent by agent acting within his authority. Both principal and agent liable. DECISION : See paragraph 65

31 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

Friday 5 March 1999

No. 3588/94 GIOVANNI OLIVERI v MICHAEL JONES & ORS

JUDGMENT

1 MASTER MACREADY: THE LITIGATION 2 This is the hearing of an accounting and assessment of damages which arises out of the principal proceedings which were determined by Bryson J on 18 December 1996 and the Court of Appeal thereafter. The proceedings concerned the ownership of three properties. They were rural land at Silverdale and Mulgoa and a block of four flats at 57 Station Street, Petersham. Proceedings had been brought by the plaintiff, Giovanni Oliveri, seeking declarations as to his ownership of these properties. He succeeded before Bryson J and the Court of Appeal in establishing his ownership of the properties at Silverdale and Mulgoa but failed in respect of the claim to the Petersham property. FACTUAL BACKGROUND 3 The Petersham property title was held in the names of two of the children of Giovanni Oliveri, namely, Dominic Oliveri and Joseph Oliveri. Dominic Oliveri is a graduate in Arts and Law and a legal practitioner. He completed his studies and became a solicitor in 1982. He was made bankrupt under a sequestration order dating back to 23 December 1993. In these proceedings brought by the father there was also a cross claim by Mr Jones as trustee of the bankrupt estate of Dominic Laurence Oliveri. That cross claim includes claims relating to the occupation of the Petersham property to the exclusion of the trustee from 23 December 1993 until 3 February 1997. In respect of that occupation of the property there are a number of matters which are common ground between the parties. 1. Emanueli Oliveri, another son of the plaintiff, Giovanni occupied unit 1 rent free from some time in 1990. 2. Prior to his occupation unit 1 was occupied by Dominic Oliveri. 3. The rental value of each unit including unit 1 was $170 per week over the relevant period. 4. Since 1990 and certainly during the period in which this assessment is concerned, namely from 23 December 1993, Emanueli Olivieri managed the block of flats as well as residing therein. 5. In the course of management of the flats Emanueli collected the rent mostly in cash and some of this was deposited to an account in the name of Joseph which had been opened for the purposes of paying the monthly repayments on the bank mortgage. That mortgage was a 25 year term loan. 4 Apart from declaring interests in respect of the three properties Bryson J made the following orders:- "3. An account be taken of the dealing of the cross defendants with the Petersham property subsequent to the sequestration order made against the estate of Dominic Laurence Oliveri. 4. An enquiry be held as to the amount of damage suffered by the cross claimant by reason of the conduct of the cross defendants in dealing with the Petersham subsequent to the sequestration order made against the estate of Dominic Laurence Oliveri." 5 The cross defendants to that cross claim are Giovanni Oliveri, his children, Joseph Oliveri, Emanueli Oliveri, Rosa Oliveri and Saverio Oliveri. Giovanni Oliveri, Joseph Oliveri, Rosa Oliveri and Saverio Oliveri have all sworn affidavits as accounting parties stating that they have received nothing from the property in the relevant period. They were not in physical occupation of any of the units in the block of flats. There does not seem to be any dispute on this aspect as clearly the property was managed for the relevant period by Emanueli Oliveri. CLAIMS MADE IN THE ACCOUNTING 6 A claim is made against the father, Giovanni Oliveri. This claim is based upon the allegation that he asserted a claim for ownership and denied the trustee of the bankrupt estate of his son, Dominic, occupation and the benefit of the property. The second claim is against Emanueli Oliveri which claim relates to his management of the three units, namely, units 2, 3 and 4 which were rented during the period and his occupation rent free of unit 1. BASIS OF CLAIMS IN RESPECT OF UNITS 2, 3 AND 4 7 It is useful first to look at how the claims in respect of units 2, 3 4 are propounded by the trustee. The orders made by His Honour contemplate an account of the dealing with the property and enquiry as to the amount of damage. In the present enquiry I am dealing with a number of different aspects in respect of different claims. There is not one claim as commonly occurs in, for example, misuse of confidential information where it is necessary for a party to elect whether to have an account of profits or damages. Normally such an election has to be made at least by the time the accounting commences. His Honour in referring to an account in order 3 is clearly contemplating an account of what occurred in respect of the management of units 2, 3 and 4 which were rented during the relevant period. There is no doubt that Mr Emanueli Oliveri was in receipt of the rents in the relevant period and would be liable for money had and received in respect of these matters. The fact that the trustee is entitled to an accounting in the present circumstances does not seem to be disputed and is in fact one of the oldest examples of liability arising from wrongful assumed authority. See the cases and references collected at note 23 on page 697 of Goff & Jones, The Law of Restitution 5th Edition. The nature of the account would probably fall within that group of cases which has been described as "the vaguely defined number of cases where an account would be too complicated to settle at law or to be left to a jury". JUST ALLOWANCES UNITS 2, 3 AND 4 8 The one matter of principle which needs to be addressed in respect of this claim is whether or not Mr Emanueli Oliveri is entitled to a just allowance for his time and effort in managing the property. The detail of this claim is set out in Annexure C to his affidavit of 23 November 1998 and in substance it is a claim for 7 percent of the income rental received each year plus a week's rental for the commencement of each new tenancy. 9 Part 48 rule 7 which would seem to also apply to accounts in equity provides that in taking the account all just allowances will be made. One most commonly sees just allowances being dealt with in claims against fiduciaries or in respect of a constructive trust. The present case, apart from being an account, is also a claim for money had and received. Just allowances are allowed in such cases. For example in Dale v Sollet (1767) 4 Burr 2133; 98 ER 112 the court was concerned with an action for money had and received for the plaintiff's use. The defendant, a ship broker, acted as the plaintiff's agent in recovering a sum of 2000 pounds for damages done to the plaintiff's ship. Of this sum he retained 40 pounds for his labour. The jury found this was a reasonable allowance. At the trial the plaintiff had objected that a reasonable allowance was not available but that a set-off should have been pleaded. The argument was successful subject to the opinion of a higher court. 10 It was held at p 43 by Lord Mansfield with the concurrence of two other judges that:- "This is an action for money had and received to the plaintiff's use. The plaintiff can recover no more than he is in conscience and equity entitled to: which can be no more than what remains after deducting all just allowances which the defendant has a right to retain out of the very sum demanded. This is not in the nature of a cross-demand or mutual debt: it is a charge which makes the sum of money received for the plaintiff's use so much less" 11 In Moses v Macferlan (1760) 2 Burr 1005; 97 ER 676 in a discussion of the remedy, Lord Mansfield stated (at 1010; 679) that a party sued for moneys had and received for the plaintiff's use "can be liable no further than the money he has received; and claim every equitable allowance;…he may defend himself by every thing which shews that the plaintiff, ex aequo & bono, is not intitled to the whole of his demand, or to any part of it." 12 "Just allowances" has a long history being referred to in Lord Provost of Edinburgh v Lord Advocate (1879) 4 AC 823 as including everything which the court might think just and proper. There is a useful discussion of the principles in Kalyk v Whelan a decision of Justice Bryson (unreported 31.8.88). There His Honour said:- "There are no closely defined principles for determining what allowances are to be made and the allowances to be made must be made on the basis of the perceived justice of each case and as an aspect of the decision to enforce a constructive trust. Such a wide range of facts may give rise to a constructive trust that generalisation about the principles on which allowances are made are difficult. In Boardman v Phipps (1967) 2 AC 46 the constructive trustees were to receive an allowance of the sum '..proper to be allowed to' (either of them) 'in respect of his work and skill in obtaining the said shares and the profits in respect thereof' and the payment was to be on a liberal scale: see at pages 104 and 112. The Court of Appeal reviewed authorities in United States Surgical Corpn v Hospital Products International Pty Ltd. (1983) 2 NSWLR 157 at 241 to 423. The Court of Appeal referred to the vagueness of the expression 'just allowances' and to the vagueness of the underlying principle - see 242 C-D. They withheld an allowance in that case because of the gross character of the breaches and the circumstances in which they were committed, including fraud. They did not, it seems to me, establish that the presence of fraud disqualifies a constructive trustee from any just allowances. They cited (at 242A) a passage from the judgment of Upjohn J in Re Jarvis Dec'd (1958) 1 WLR 815 at 820 which includes the statement:- 'Each case must depend on its own facts and the form of inquiry which ought to be directed must vary accordingly to the circumstances.' This seems to be echoed in his Lordship's statement (in dissent) in Boardman v Phipps at 123:- 'Rules of equity have to be applied to such great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to the exact circumstances of each case.' The High Court reversed the decision of the Court of Appeal: 156 CLR 41; but in my opinion the passage to which I have referred continues to be entitled to my respect and there are some observations in the High Court which are to similar effect. (at page 79) I refer in particular to Mason J at 110 (and Mason Js citation from Cardozo J in Beatty v Guggenheim Exploration Co (1919) 225 NY 380 at 389: 'A Court of Equity in decreeing a constructive trust is bound by no unyielding formula. The equity of the transaction must shape the measure of relief." 13 The claim for a management fee in this instance is clearly in respect of the functions which Mr Emanueli Oliveri did in managing the property particularly units 2, 3 and 4. This included obviously the collection of rent, organising cleaning, repairs, supervising vacating and incoming tenants, arranging for new tenancies and generally looking after the property. The claim by the cross defendants of 7 percent probably stems from the fact that in 1993 the regulations under the Auctioneers and Agents Act prescribed 7 percent of the gross weekly rental as a maximum amount to be charged for agents' commission. I have on a previous occasion in Pollicino v Pollicino 21 March 1996 discussed the allowance of such management fees in the context of a fiduciary claim as a just allowance. See pages 19 and 20 of that judgment. 14 A submission was made to the effect that s 42 of the Property, Stock and Business Agents Act 1941 prevents an unlicensed agent from recovering any commission fee, gain or reward for service as a real estate agent. The definition of "Real Estate Agent" in section 3 imports the need for there to be the carrying on of a business. In my view such provision would not prevent a just allowance as the activities could not be described as a business. It is an allowance by the Court of some countervailing amount in order to reflect the personal effort expended by the accounting party in managing a property in which his family had an interest. Having regard to the matters to which I have referred to in my judgment in Pollicino v Pollicino at page 20, I would have fixed an allowance of 3 percent of the rental collected and one half of various weeks claim for new tenancies. However, no evidence of what is the normal rate at the relevant time has been led before me. The trustee's concern seemed to be with the principle of the allowance. In the circumstances, if the parties do not agree, I will fix the amount as indicated if evidence called by the defendant shows that 7 percent and one week's rent is the usual rate. Later in this judgment I will deal with the remaining details of the claim for the accounting in respect of units 2, 3 and 4. BASIS OF CLAIM AGAINST GIOVANNI OLIVERI FOR UNITS 2, 3 AND 4 15 There is also a claim against Giovanni Oliveri in respect of this accounting. The primary claim made against Giovanni Oliveri was that Emanueli Oliveri acted by his authority and on his instructions and was, for relevant purposes, the agent for Giovanni Oliveri. 16 On a factual basis there is no doubt that Emanueli Oliveri believed that he was managing the property which belonged to his father. His collection of rent and payment of the mortgage may have benefited him after his father's death but at the relevant time he had no entitlement to the rent. There is also no doubt that Giovanni Oliveri believed that his son, Emanueli Oliveri, was managing the property by collecting the rent and paying the mortgage. Although he was not concerned about the rent he clearly believed he was the owner of the property. Emamueli, in my view, was his father's agent for the purpose of managing the property including the collection of rent. However, this arrangement was not known to the trustee at the time of commencing its cross claim. 17 Cases were cited in support of the proposition that if an agent receives money on behalf of his principal and deals with it on his principal's instructions then the principal is liable to anyone who has made a claim on the money. They were ANZ v Westpac (1987-88) 164 CLR 662 at 681, Burt v Claude Cousins (1971) 2 Q.B. 426 and Rahimtoola v Nizam of Hyderabad (1957) 3 All ER at 453. The first of these cases however dealt with the situation where the agent has before receiving any notice of a claim paid out the money in respect of which he has been dealing to his principal or to others on behalf of such principal. Such a factual basis has not occurred in this case. There was no suggestion that any payments were made by Emanueli Oliveri to his father. In fact the evidence is to the contrary. He did apply some part of the rent on his father's behalf and it is only the balance of the rent still retained by Emanueli Oliveri with which I am concerned. The second case concerns the ability to recover a deposit paid to an estate agent for a land purchase where a contract for sale does not eventuate. The case really was determined on the basis which of two innocent parties should bear the loss and little assistance is gained from it. It has been overruled in Sorell v Finch 1977 A.C. 728. The third case essentially held that where the principal is a foreign sovereign and immune from suit the rule as to wrongful payment does not enable the agent to be sued. 18 The difficulty in the matter arises because the traditional analysis of the liability of an undisclosed principal for repayment is invariably dealt with in the context of a claim for payment by a person who made the payment (perhaps by mistake) to the agent. Such a person would be the tenant in this case. As is demonstrated by ANZ v Westpac the agent may have a good defence if before notice of the claim he has paid it to the principal or done something equivalent thereto. In this circumstance the claimant must look to the principal. But that is not this case. 19 The basis for recovery against Emanueli Oliveri arises because an account lies when a person intervenes without right to collect another's rents. Whenever an account lies indelitatus assumpsit will be available and hence the claim for money had and received. Since Arris v Stukeley (1677) 2 Mod 260 it appears clear that recovery is allowed, not because a tort had been committed but because an account lay. 20 If one turns to general principles of agency one finds that an undisclosed principal may be sued in respect of money paid or received on his behalf by his agent acting within the scope of his actual authority. See Bowstead on Agency 15th Edition Article 79. In this case, Emanueli Oliveri was, in collecting rents, acting within the scope of his actual authority. It is also a general principle of agency law that an agent is not personally liable to repay money received by him for the use of his principal. See Bowstead on Agency Article 118 Rule 1. There are exceptions one of which is when the money is obtained by means of a wrongful act to which the agent is a party. The collection of someone else's rents without an entitlement could be described as wrongful even though such wrongfulness may not legally ground recovery. An example of this exception is that of an agent who acts for an executor de son tort is, himself, an executor de son tort and personally liable to account for assets collected by him, even after he has paid them to his principal. See Sharland v Mildon (1846) 5 Hare 469 and Padget v Priest (1787) 2 T.R. 97. There is no reason why such a principle should not apply to someone who collects rents to which neither he nor his principal is entitled. 21 In these circumstances it would seem, as a matter of principle, that Giovanni Oliveri should be liable jointly with his son, Emanueli Oliveri, for this claim. 22 The alternative claim in this area propounded against Giovanni is for damages for having denied the trustee's title and kept the trustee out of possession by pursuing his claim to be the owner. It was suggested that the evidence of income and outgoings is indicative of what the damages would be and in contrast with the first claim the trustee concedes that some allowance for management can be made. For reasons which I will advance later when dealing with the claim in respect of unit 1, it seems to me that this alternative could not succeed. BASIS OF THE CLAIM FOR UNIT 1 23 I turn to the claim in respect of unit 1. The principal claim is against Emanueli Oliveri he being the person in occupation for the relevant years. The first claim is one in trespass. It was submitted that upon entry into possession, which the trustee was ultimately able to achieve, he was entitled to damages from the date upon which his right to possession arose. Clearly the right to possession accrued on 23 December 1993. However, the trustee did not enter upon the premises until after judgment was given by His Honour Bryson J in December 1996. The trustee referred to three cases, namely, Ocean Accident v Ilford (1905) 2 KB 493, Ebbels v Rewell (1908) VLR 261 and Wynn v Green (1901) 1 SR (NSW) 40 in support of the proposition. An alternative claim was also propounded by the trustee. That was that he was entitled to succeed in ejectment and thus there would be an entitlement to mesne profits. 24 Both of these submissions overlook the fundamental nature of a claim for mesne profits which is based upon the doctrine of "trespass by relation". The basis of the claim received careful attention from the High Court in Minister of the State for the Interior v R.T. Co Pty Ltd (1962) 107 CLR 1. In that case Taylor J was concerned with a claim for mesne profits made after a resumption of certain premises. After resumption which gave the Commonwealth title it brought the proceedings. They are thus similar in fact to the present matter where the trustee obtained title and the right to possession by the effect of Dominic's bankruptcy. As in the present matter the Minister of State for the Interior did not obtain possession until after the proceedings were commenced and this is fatal to the claim. The matter was explained by Taylor J at pages 5 to 7 in these terms. "In support of the primary submission of the companies upon this branch of the case it was pointed out that a claim for mesne profits is a particular form of the action for trespass, that as such it is based upon an injury to the plaintiff's possession and that the plaintiff is enabled to recover only upon the doctrine of trespass by relation. That is to say, that upon entering into possession the plaintiff is deemed by a legal fiction to have been in possession ever since his right to possession arose. But, so the argument ran, a plaintiff is not entitled to assert a claim to mesne profits until entry or re-entry has taken place. The principle upon which the submissions are based are clearly established (see Tharpe v. Stallwood (1843) 5 M & G 760, at pp 774, 775 (134 ER 766, at p 772) ; Barnett v. The Earl of Guildford (1855) 11 Ex 19 ; Dunlop v. Macedo (1891) 8 TLR 43 ; Ocean Accident and Guarantee Corporation v. Ilford Gas Company (1905) 2 KB 493, at pp 498, 499 ; Wynne v. Green (1901) 1 SR (NSW) 40 ; and Ebbels v. Rewell (1908) VLR 261 ; Salmond on Torts 13th ed. (1961) p. 179 and Fleming on Torts 2nd ed. (1961) p. 80) and it is too late in the day to deny that at common law a plaintiff suing for mesne profits could not, in general, succeed unless he proved that pursuant to a right to do so he had entered into possession. An exception seems to have been made in the case of a plaintiff whose title had expired before an entry had been made (Fleming on Torts (supra) p. 50) and for many years it has been permissible in a number of jurisdictions for a landlord, after a holding over without consent, to combine a claim for mesne profits with an action of ejectment. Indeed, in Dunlop v. Macedo (1891) 8 TLR 43 it was held that in view of the provisions of r. 2 of 0. 17 of the English Rules of 1875 this course might be followed in an action for possession against a trespasser notwithstanding the fact that such a case did not fall within the provisions of s. 214 of the Common Law Procedure Act, 1852 (cf.Supreme Court Act 1958 (Vict.), s. 119, and Supreme Court Rules, 0. XVIII, r.2). But the proceedings before me are not proceedings in ejectment or for possession and it is unnecessary to consider how far, if at all, a claim for mesne profits might be joined with proceedings of that character in this Court. (at p6) None of the cases relating to mesne profits to which I have referred deals with a situation precisely the same as that which presents itself in this case. It is true, of course, that the cases consistently predicate that the plaintiff must establish that he has entered into possession of the subject premises. And they do so in language which suggests that the accrual to the plaintiff of a cause of action for mesne profits is dependant upon the occurrence of such an event. But none of the cases, as far as I can see, contemplated a situation such as the present where the writ was issued before entry and an entry, in turn, preceded the trial. This case is, perhaps, made even more unusual by the fact that the plaintiff had obtained a warrant of possession some years before the date when the suit was instituted. The immediate question, however, is whether a claim for mesne profits made independently of proceedings for possession must fail if it is made before the plaintiff obtains possession of the subject premises. The answer to this question must, I think, be in the affirmative unless the fiction upon which trespass by relation is erected can be made to do double duty. Upon entry the plaintiff's possession is said to relate back by virtue of the legal fiction to the time when his right to possession arose. Can the plaintiff, then, in these proceedings, having entered after the issue of the writ, assert by force of the fiction that he was in possession at the date of the writ and, therefore, that his cause of action had then accrued? Or, perhaps, to put it in another way, is a plaintiff, upon entering into possession, entitled to assert that, thereupon, he became entitled to mesne profits "at the time when they arose"? (Ocean Accident and Guarantee Corporation v. Ilford Gas Company (1905) 2 KB, at p 499 ). It is, however, the contention of the companies that they are entitled to judgment if it appears that if the matter had been investigated at the date of the commencement of the suit it would have been found that the plaintiff's cause of action had not then accrued. To my mind principle and authority admit of only one answer to the problem; it is incumbent upon the plaintiff to establish the existence of his cause of action as at the date of his writ and the failure or success of his action will not depend upon whether the trial takes place promptly or happens to be delayed until after he has entered into possession. It seems to me that the problem is analogous to that which has arisen in cases where a plaintiff has, before actual grant of administration, commenced proceedings as an administrator. Notwithstanding that upon grant the administrator's title relates back to the death of the deceased whom he represents it has been consistently held that this element of retroactivity is incapable of sustaining a writ issued before grant (Chetty v. Chetty (1916) 1 AC 603, at p 608 ; Ingall v. Moran (1944) 1 KB 160 ; Hilton v. Sutton Steam Laundry (1946) 1 KB 65 ; and Finnegan v. Cementation Co. Ltd. (1953) 1 QB 688 ). (at p7)" 25 As his Honour indicates there is often a statutory basis to allow the combination of a claim for mesne profits with an action for ejectment. In New South Wales this is found in section 12 of the Landlord and Tenant Act 1899. The section only applies to the case of landlord and tenant which is not the present factual situation. In any event there was no claim for possession in the cross claim and there has been no judgment for possession. As the trustee did not obtain possession until after judgment the claim must fail. In my view there is no entitlement to mesne profits. That this result should follow is not surprising given that the action of trespass is available only to those in possession at the time of the unauthorised entry. I note that there could not be a claim for use and occupation as that is predicated upon there having been in the past a relationship of landlord and tenant. 26 Another alternative might be that there would be a right to damages in equity under s68 of the Supreme Court Act on the basis that a court would have issued an injunction against the continuance of a wrongful act. However, an injunction to restrain a trespass or threatened trespass normally will not be granted unless there is likely to be irreparable injury. See the discussion in Equity Doctrines & Remedies, Meagher, Gummow & Lehane, Third Edition, at para 2122. 27 In any event there does not seem to any evidence of a request to Emanueli Oliveri for access or possession of the unit. He had been put in possession by his brother, Dominic in 1990, before Dominic's bankruptcy. He was clearly there with his father's permission. It is hard to see how, in these circumstances, he has committed some wrongful act. In my view the claim against Emanueli Oliveri in respect of unit 1 must fail. CLAIM AGAINST GIOVANNI OLIVERI UNIT 1 28 In dealing with the claim against Giovanni Oliveri in respect of unit 1 it is perhaps useful to recount the evidence which relates to what in the trustee's submissions were referred to as an ouster or denial of title. In correspondence before action Giovanni Oliveri has certainly claimed through his solicitors a 100 percent interest in respect of the Petersham property. In July 1994 the trustee sought access for the purposes of valuation and he also gave notice that he intended to appoint a receiver of the rents in order to safeguard the position. On 10 August the solicitor for Giovanni Oliveri said that he did not agree that the trustee or anyone on his behalf could have access to the properties. Shortly after this the proceedings were commenced. 29 The claim is said to be primarily in trespass as a result of him putting his son into possession. As I have found that a claim will not lie against the son it can not on this basis succeed against Giovanni. The claim was also expressed to flow from the fact that Giovanni in this action denied the trustees title by claiming the equitable ownership of the property. 30 The submissions fastened upon the use of the expression "denial of title" in Biviano v Natoli (1998) 43 NSWLR 695. That case concerned property held jointly and the question which arose was whether certain actions did constitute an "ouster" and thus give rise to a claim for an occupation fee. The court held that a denial in the pleadings of the co-tenants title was sufficient to constitute an ouster. 31 Such denial is no doubt similar to the action of Giovanni Oliveri in bringing the present proceedings and if the defendant were a co-tenant such proceedings would amount to an ouster. At common law a co-tenant so excluded could sue for ejectment and for mesne profits. See the discussion at p 700 of Biviano. 32 However, the defendant is not the co-tenant of the plaintiff. He is a stranger who has established a superior title. The rules applicable to co-tenants arise because of their unity of possession. See generally the discussion in Foregeard v Shanahan (1994) 35 NSWLR 206 AT 221-2. 33 Any right in the trustee against Giovanni must derive from the general principles in respect of trespass. As has been shown earlier these do not apply as possession was not obtained prior to action. The claim against Giovanni thus fails. ACCOUNTING PROCEDURES 34 When this matter was first set down no proper form of accounting had been given by the accounting party. Mr Emanueli Oliveri had simply filed an affidavit annexing various check butts and bank statements. There was no attempt to vouch any of the amounts out of court. In the course of directions hearings I gave directions which had the result that Mr Emanueli Oliveri filed an affidavit sworn on 23 November 1998 in which he set out by way of annexed schedules an accounting of income and expenditure. The schedule, annexure A, is a listing of all the items of income and expenditure for yearly periods commencing on 23 December 1993 the last period being 23 December 1995 to 19 December 1996. Although this finishes somewhat short of the period covered by the accounting it is accepted by the parties that appropriate amounts have been paid after that period. Schedule A relates to units 2, 3 and 4 and includes charges for the items of expense which applied to the property generally, such as rates and mortgage repayments. 35 Annexure B to his affidavit is a further schedule of income and expenditure itemised in respect of unit 1 and thus relates to that unit alone. 36 Annexure C to the affidavit of Mr Emanueli Oliveri of 23 November is his claim for just allowances as a result of his managing the building and lettings. The total claim is for $6,086. 37 At the commencement of the hearing there was admitted as exhibit 1, a schedule, for the purpose of showing the attitude of the trustee to the accounting as identified by Mr Oliveri in his affidavit. That exhibit on the first page dealt with the claim in annexure B to Mr Oliveri's affidavit which concerned his occupation of unit 1. The subsequent pages dealt with annexure A to his affidavit and concerned units 2, 3 and 4. As the case progressed the parties stance not unnaturally changed in respect of some of these matters and, accordingly, what I will do is deal with those matters which appear to me to be in dispute and leave the parties to do the relevant accounting exercise to determine the final state of accounts following upon such determination.