Violet Jamil v Anthony Mansour [2001] NSWSC 312

New South Wales Supreme Court

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: