New South Wales Court of Appeal CITATION : MANSOUR v JAMIL [2002] NSWCA 48 FILE NUMBER(S) : CA 40366/01 HEARING DATE(S) : 20th February 2002 JUDGMENT DATE : 14 March 2002 PARTIES : Anthony Mansour - Appellant Violet Jamil - Respondent JUDGMENT OF : Sheller JA at 1; Stein JA at 60; Hodgson JA at 61 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CL 11768/00 FILE NUMBER(S) : LOWER COURT Sully J JUDICIAL OFFICER : COUNSEL : Appellant - In person Respondent - S Baker SOLICITORS : Appellant Respondent - Ward Maxwell & Co CATCHWORDS : REAL PROPERTY - licence for value - weight of evidence - balance of probabilities - procedural fairness - appeal dismissed LEGISLATION CITED : N/A CASES CITED: N/A DECISION : 1. Appeal dismissed with costs; 2. The costs to include the costs of the application for a stay; 3. Discharge as from the date of this judgment the stay made by Hodgson JA on 4 June 2001 and continued by this Court on 5 February 2002, to the intent that any payments, by way of occupation fee pursuant to the condition on which the stay was granted, made by Mr Mansour or any liability of Mr Mansour to make such payments up to the date of discharge of the stay are not affected by this order discharging the stay; 4. The plaintiff, Mrs Jamil, have leave to issue forthwith a writ of possession but that such writ shall lie in the Registry of the Supreme Court for a period of twenty-eight days from today. Thereafter the writ may be enforced without further order. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40366/01 CL 11768/00 SHELLER JA STEIN JA HODGSON JA MANSOUR v JAMIL The respondent to this appeal is, and has been at all material times, the registered proprietor of the Croydon Park property at dispute in the proceedings. In the hearing before Justice Sully the respondent alleged that her brother, the appellant in these proceedings, was in occupation of the property and sought judgment for possession against him. The appellant claimed that he was entitled to occupy the property by virtue of a license for value. His Honour entered judgment for the respondent for possession of the Croydon Park property and gave leave for her to issue forthwith a writ of possession. The appellant's defence relied upon the existence of an agreement between the parties which established a licence for value. The appellant claimed that on the respondent's purchase of the Croydon Park property she had indicated to both the appellant and their now deceased mother that they could pay the cost price of $50,000 whenever they could afford it for the transfer of title. In the meantime, the appellant was to do what he could with regard to the maintenance of the property and periodically give whatever money he could towards the cost of the property. This alleged agreement was an oral one and no documentation existed to support the conclusion that such an agreement existed. The appeal was based on the assertion that Sully J had failed to take into account at all or apply sufficient weight to inferences available from the events surrounding the purchase of the Croydon Park property. Also, the appellant alleged that during the course of the hearing he had been denied procedural fairness. HELD (per Sheller JA, Stein JA and Hodgson JA concurring): 1. The evidence failed to establish that the appellant had any enforceable licence to occupy the Croydon Park property. 2. It was open to Sully J to conclude that the maintenance conducted by the appellant was not, on the balance of probabilities, consistent with the particular licence that he relied upon and that the licence for value pleaded was not established on the balance of probabilities. His Honour's findings were not against the weight of evidence or in error. 3. The Court was not persuaded that, at first instance, the appellant's representation was limited in any material sense or that counsel failed to put the case in accordance with his duty to the court and his duty to his client. 4. There was no evidence to suggest that the appellant did not have ample time to prepare his case before Sully J. There was no evidence to indicate procedural unfairness. There was nothing to suggest any impropriety in the manner in which the trial judge dealt with the appellant's interruptions during the proceedings or his application to have the hearing dates vacated. 5. The licence the appellant alleged was terminable on the giving of reasonable notice. It should not be thought that because this Court has approached the appeal as one against the trial judge's factual conclusions, the appellant had any claim other than that of a licensee. That claim failed on the evidence. 6. The trial was conducted fairly. ORDERS 1. Appeal dismissed with costs. 2. The costs to include the costs of the application for a stay. 3. Discharge as from the date of this judgment the stay made by Hodgson JA on 4 June 2001 and continued by this Court on 5 February 2002, to the intent that any payments, by way of occupation fee pursuant to the condition on which the stay was granted, made by Mr Mansour or any liability of Mr Mansour to make such payments up to the date of discharge of the stay are not affected by this order discharging the stay. 4. The plaintiff, Mrs Jamil, have leave to issue forthwith a writ of possession but that such writ shall lie in the Registry of the Supreme Court for a period of twenty-eight days from today. Thereafter the writ may be enforced without further order. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40366/01 CL 11768/00 SHELLER JA STEIN JA HODGSON JA Thursday, 14 March 2001 MANSOUR v JAMIL Judgment 1 SHELLER JA: Background Mrs Violet Jamil, who is the plaintiff and respondent to this appeal, is and has at all material times been the registered proprietor of a dwelling house and land known as 319 Georges River Road, Croydon Park (the Croydon Park property). By a statement of claim filed in the Common Law Division, Mrs Jamil alleged that her brother, Mr Anthony Mansour, who is the defendant and appellant, was in occupation of the land and sought judgment for possession against him. Mr Mansour claimed to be entitled to occupy the land by virtue of a licence for value in the following circumstances set out in his defence: (I) In 1984, [Mr Mansour] spoke with his mother and [Mrs Jamil] to the following effect. [Mrs Jamil] said that she had found a house, that this was to be the family home, that the mother and [Mr Mansour] could pay out the cost price of $50,000 whenever they could afford it for the transfer of title, that [Mr Mansour] was to do what he could in maintenance and in cutting the lawns, and that [Mr Mansour] was to give whatever he could afford towards the cost of the house to his mother who would pass the money on to [Mrs Jamil] for that purpose. (II) [Mr Mansour] around the time of the conversation and thereafter did work on the property including painting and stripping. With [Mrs Jamil] he hired a floor sander. [Mr Mansour] sanded the floor. Both the parties polished the floor [Mr Mansour] replaced windows, laid the back lawns, repaired the fence, and (by himself or with a handyman) effected plumbing repairs. (III) [Mr Mansour] paid to his mother $30-$50 a fortnight in accordance with the arrangement to contribute to the cost of the house." Mr Mansour asserted that the licence had not been terminated. 2 As I understand it, this arrangement was said to give Mr Mansour, and during her life the parties' mother, some right to occupy the Croydon Park property in return for unspecified periodical payments by Mr Mansour to the parties' mother to use towards defraying the cost of the house and the carrying out of lawn cutting work and unspecified maintenance work and an ultimate right on the payment of $50,000 to title. Mr Mansour asserted that he had made such payments and done such work. The parties' mother died on 27 October 1998. 3 The proceedings were heard by Sully J on 6 and 9 April 2001. His Honour delivered judgment on 30 April 2001. He ordered that there be judgment for Mrs Jamil for possession of the whole of the premises and that Mrs Jamil have leave to issue forthwith a writ of possession, such writ to lie in the Registry of the Court for 28 days. He ordered Mr Mansour to pay Mrs Jamil's costs including certain reserved costs Sully J's findings 4 Sully J made findings which can be summarised as follows: (1) Mr Mansour did not dispute that Mrs Jamil was at all material times the sole registered proprietor for an estate in fee simple in the Croydon Park property and that he was and had been at all material times in sole occupation of the premises. (2) All other relevant formalities required by the Supreme Court Rules had been complied with by Mrs Jamil. (3) Mrs Jamil was entitled to possession of the Croydon Park property unless Mr Mansour could establish on the probabilities the existence of a licence for value as pleaded in his defence. (4) There were only three people who on Mr Mansour's version of relevant events were present when the agreement as pleaded in the defence was reached, Mrs Jamil, Mr Mansour and their late mother. Mr Mansour asserted an agreement as pleaded. Mrs Jamil denied it. There was no way of knowing what their late mother would have said on the topic had she been available to give evidence. (5) So far as direct oral evidence was concerned the resulting situation was one of the word of Mrs Jamil against the word of Mr Mansour. Therefore it became necessary to look with some care at what else, if anything, was available to corroborate the one or the other of the diametrically opposed versions. (6) On or about 3 November 1998, Mr Mansour lodged with the Registrar General a caveat against the registered title of the Croydon Park property. This caveat was duly registered on or about 9 November 1998. The estate or interest claimed by Mr Mansour in the Croydon Park property was stated in the caveat as follows: 'Pursuant to a Deed of Option between the Registered Proprietor and the Caveator to purchase the subject property at cost price, being an oral agreement.' Mr Mansour did not explain what exactly he had in mind by the reference to a 'Deed of Option' but it was clear there was never any such 'Deed of Option' of a formal documentary kind. (7) The defined interest expressed in the caveat was significantly inconsistent in concept with a licence for value of the kind upon which Mr Mansour relied. The available evidence did not give any explanation of this apparent inconsistency. (8) Mr Mansour gave evidence that he did in fact pay $30-50 a fortnight to his late mother in accordance with the agreement. There was no documentary evidence to corroborate that assertion. (9) Mr Mansour gave evidence of his having done things to, and in connection with, the maintenance of the Croydon Park property. Mr Mansour had indeed over the years done what might be described as odd jobs of one kind and another in, and to, and around the Croydon Park property. There was not a great deal of particularity about such evidence as there was on this topic. (10) The work done was not of such character and quality as was consistent, on the balance of probabilities, with the existence of a particular licence for value of the kind upon which Mr Mansour relied. (11) At the hearing two files from the New South Wales State Department of Housing were tendered on behalf of Mrs Jamil. The files concerned dealings between the Department and Mr Mansour in connection with the provision to Mr Mansour by the Department of subsidised public rented housing accommodation. The earliest dealing between Mr Mansour and the Department took place in about March 1984 when he applied for public housing accommodation for himself and his then wife. In due course that housing was made available to Mr Mansour. Sully J described the history of the dealings between Mr Mansour and the Department, as 'lengthy, convoluted, not infrequently acrimonious, and punctuated by eviction proceedings, eviction threats, negotiations and agreement respecting the payment of rental arrears, and applications by [Mr Mansour] for re-located accommodation'. (12) One of the departmental files contained material that was relevant to an application by Mr Mansour in about August/September 1985 for an allocation of housing of such a kind as would permit him to bring his late mother to live with him. The late Mrs Josephine Mansour was required by the Department to complete a written application for permission to live in Departmental premises as an additional occupant not requiring housing in her own right. Mrs Mansour completed the application on 17 September 1985. One question in the application form was: 'Do you, or any member of your family to be housed with you, presently own or have an interest in a residential property?' Mrs Mansour answered this question: 'No.' (13) The same departmental file contained a report dated 17 June 1985 made by a supervisor at the Sydney Regional Office of the Housing Commission of New South Wales. The report contained, among other observations, the following: 'As has been stated previously on file by other Commission Officers ……[Mr Mansour]…… today was again vague on most subjects. He seems to say a lot but tells you little. He feels very much in control of things but doesn't really know what's happening. It seems that his family and his wife have allowed him to take this control. [Mr Mansour] …… stated I had been unable to find him home before this day as he had stayed a few days with his mother who was unwell and then had to escort her to her Social Security Office for various reasons. [Mr Mansour] also stated that he would like his mother to move in as she needs his care and he at times requires her support.' (14) There was on the same file a carbon copy of a letter written by the Departmental Regional Manager on 17 September 1985. The letter was addressed to the late Mrs Mansour at the address of the Housing Commission accommodation of which Mr Mansour was then the tenant. The letter notified Mrs Mansour that the Housing Commission had no objection to accommodation being provided for her at that address on the understanding that she would not thereby acquire necessarily any tenancy rights or rights of tenancy succession. (15) These events did not sit comfortably with Mr Mansour's contentions to the effect that he moved into the Croydon Park property as a licensee for value and for the purposes, among others, of being on hand to support in those premises his late mother. (16) The history to be drawn from the departmental files did not tend to support Mr Mansour's contention that since 1984 he had paid $30-50 a fortnight to his late mother in accordance with the agreement upon which he now relied. (17) Throughout the whole period covered by the departmental files Mr Mansour was in constant arrears with his rental payments; he was constantly applying for improved rental rebates upon the basis that he was barely living from hand to mouth on the various social security entitlements which were available to him and he was embroiled from time to time in matrimonial disputes of various kinds. (18) The overwhelming impression made on Sully J by the departmental material was, not that it was literally impossible for Mr Mansour to have made at least some such fortnightly payments as he alleged he did make, but that it was highly unlikely that in fact he did so. (19) An exhibit in Mrs Jamil's case was an application by Mr Mansour to the Family Court of Australia asking that filing fees payable in connection with a projected appeal to the Full Court be waived because the requirement that he pay the fee would cause him hardship. This application was verified by an affidavit sworn on 22 June 1994. It disclosed a total income of $324 per fortnight and total expenditures of $320 per fortnight. This material strengthened significantly the unlikelihood that Mr Mansour had in fact made regular fortnightly payments consistently with the requirements of the licence for value upon which he relied. (20) Mr Mansour tendered at the hearing two substantial folders of documents. They established that for some time Mr Mansour had represented the Croydon Park property as being his regular residential and business address. His Honour did not think that in the circumstances of the case that consideration took Mr Mansour very far in the direction of proof on the probabilities of the alleged licence for value. (21) Mrs Jamil's evidence that there never was any such agreement as was asserted by Mr Mansour was attacked as being inconsistent with action she took against Mr Mansour in relation to the Croydon Park property in September 1999 in the Residential Tenancies Tribunal. On 7 September 1999 she lodged with that Tribunal an application for orders pursuant to the Residential Tenancies Act 1987 as follows: "1. An order ending the tenancy agreement and taking possession of the premises tenant refused to pay rent tenant is destroying the premises tenant refuses to pay water usage tenant has threatened the landlord with physical violence 2. An order to pay rent owing from 27 October 1998 to 7 September 1999 – 45 weeks at $200/week. Total = $9,000 3. An order to pay water usage of $231.10 4. An order to clear all rubbish accumulated by and belonging to the tenant" (22) Mrs Jamil stated her reasons for requesting such orders as: 'The tenant (my brother) moved into the property when mum died. Promised to sign a lease and pay rent of $200 a week. I have constantly asked him to leave or pay rent he refused. I gave him extra time because of mum's death. To this date he refuses to leave or pay rent.' (23) On 23 September 1999 the Tribunal dismissed the application on the basis that it had no jurisdiction because 'condition re note on termination not complied with and not sufficient proof that residential tenancy agreement exists.' (24) Mrs Jamil's explanation for the glaring inconsistency between what she told the Tribunal in 1999 and what she told Sully J was not, in his Honour's opinion, at all impressive. He said: 'As best I could follow [Mrs Jamil's] explanation, it came down to this: she wanted to get [Mr Mansour] out of [the Croydon Park property]; the legal advice available to her was that it might be worth an attempt to achieve that objective by an approach to the Residential Tenancies Tribunal; [Mr Mansour] had told police officers who had been called to [the Croydon Park property] in connection with a particular fracas, that he was in fact a tenant of the premises; and it seemed to be a reasonable approach to take him at his word and to proceed accordingly in the Tribunal.' (25) Sully J did not positively disbelieve this evidence and was inclined to accept the thrust of it as being consistent with the general impression that he had of Mrs Jamil, namely, that her attempts to get Mr Mansour out of the Croydon Park property had brought her to such a point of exasperation that she had been prepared to take practically any legal step available or plausibly available, for that purpose. (26) There was evidence of acts of significant generosity on the part of Mrs Jamil towards Mr Mansour in the matter of the payment by her of his debts. Mr Mansour submitted that this evidence tended to rebut any inherent improbability that Mrs Jamil would have agreed to become party to an arrangement of such apparent generosity to Mr Mansour as the license for value upon which he relied. (27) Whilst Sully J acknowledged that that was one way of regarding the evidence he said that the evidence was just as consistent with the proposition that it was unlikely that Mrs Jamil, being all too well aware of the straitened financial circumstances and prospects of Mr Mansour, would have agreed to an arrangement which left him paying off either the whole, or a substantial part of, an amount of $50,000 by instalments of $30-50 per fortnight. 5 Sully J concluded: "All of the foregoing considerations seem to me to produce, if ever a case produced, an example of those 'inexact proofs, indefinite testimony, …..(and) ……indirect references' of which Dixon J spoke in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2. That being the overall condition of the evidence, and having regard to the nature and consequences of the issue tendered by paragraph 3 of the defence, I am not satisfied on the balance of probabilities that the license for value there pleaded has been established." Appeal 6 On 28 May 2001 Mr Mansour filed a notice of appeal from Sully J's decision. On 4 June 2001 Hodgson JA made the following orders: "I order that the orders of Sully J of 30 April 2001 be stayed until further order, on condition that the appellant pay to the respondent's solicitors an occupation fee of $600.00 per month, the first payment to be made on or before 30th June 2001, and thereafter on or before the last day of each month. I order that, in the event that any occupation fee is not paid, the stay will come to an end seven days after the end of the month for which the occupation fee was not paid. The costs of this application will be costs in the application for leave." In fact Mr Mansour's appeal proceeded as of right without any challenge to its competency. 7 There were eighteen grounds in the original notice of appeal. For the most part they were challenges to Sully J's findings of fact suggesting, at best, that other findings might have been open to his Honour. Some of the findings Sully J made were said to be against the weight of the evidence. 8 Mr Mansour's notice of appeal was filed on 28 May 2001 and, on 27 September 2001, was set down for hearing before the Court on 5 February 2002. At the hearing of the appeal Mr Mansour appeared in person. On his application, for reasons then given, the appeal was stood over to 20 February 2002. The stay order made by Hodgson JA was continued subject to the same conditions. On 20 February, Mr Mansour applied to amend the notice of appeal by adding a further ground 19. Leave was given and the amended notice of appeal was filed in Court. 9 Mr Mansour next applied for the hearing of the appeal to be adjourned. His grounds for this application were diverse. Many were irrelevant. They are recorded in the transcript. First and foremost, Mr Mansour relied upon the fact that his application for legal aid made on 18 February 2002 had not yet been dealt with. No satisfactory explanation was given for the lateness of this application. It was not suggested that the Legal Aid Commission had taken any steps to support Mr Mansour's application for an adjournment; s33(1)(e) of the Legal Aid Commission Act 1979. In addition, Mr Mansour complained that he had no training in the law and that the material in the four blue appeal books prepared by the Court and in the affidavits read before Sully J and in other documents to which he wished to refer, presented him with a daunting task. Some of Mr Mansour's difficulty derives from his inability to focus on the merits of his appeal. In part, this is due to his decision to tell the Court about extraneous matters such as the difficulties he asserts he had in getting material put in evidence at the trial, the behaviour of his counsel, what occurred at several call-overs before the Registrar of this Court and time spent in dealing with other proceedings in which he says he is currently engaged. This is illustrated by Mr Mansour's handwritten submissions filed in the Court on 27 September 2001. 10 Fortunately, a comprehensive notice of appeal has been filed, now amended by the addition of ground 19. Mr Mansour relied on the amended grounds of appeal together with an affidavit, sworn by him on 7 August 2001, to which Mrs Jamil's counsel took no objection. His appeal is best approached by reference to these documents. In his written submission Mr Mansour suggested that these grounds were only a minor part of his case. I am satisfied that the amended notice of appeal includes all arguable grounds of appeal which Mr Mansour has open to him. Grounds of appeal 11 Ground 1 of the amended notice of appeal is to the effect that Sully J failed to take into account at all or apply sufficient weight to inferences available from the events "surrounding the purchase of the property in 1985 by the plaintiff for about $50,000". The "events" are listed in paragraphs (a) to (m). Paragraph (n) is that Mr Mansour had limited pro bono representation in the preparation and presentation of his defence. Mr Mansour was represented by counsel at the hearing before Sully J. Nothing put before us supports Mr Mansour's assertion that any defences he had to Mrs Jamil's claim for possession were not adequately investigated and dealt with. 12 The events set out in paragraphs (a) to (m) of ground 1 can be categorised and summarised, by reference individually to the parties' mother, Mr Mansour and Mrs Jamil, as follows: The mother Paras (a) and (d) (i) The parties' mother was a pensioner who would naturally be concerned for the accommodation and future security of her disabled son. Mr Mansour Paras (b), (e) and (h) (ii) Mr Mansour was on sickness benefits and later a disability pension and likely to be in impoverished circumstances for the rest of his life. Issues were raised about whether he should be represented by "the Guardianship Board". He made strong assertions of a right of occupancy following his mother's death which were corroborative of the licence for valuable consideration. The Guardianship Board was constituted under Pt 6 of the Guardianship Act 1987 before its amendment in 1997. The Board's functions included making guardianship orders in respect of persons it was satisfied were in need of a guardian. In his written submission Mr Mansour referred to an application to the Protective Commission and Guardianship Board. I shall return to this when I consider ground 13. Mrs Jamil Paras (c), (f), (g), (i), (k), (l) and (m) (iii) Mrs Jamil was working in a real estate office and had prospects of advancement in life. By inference, at the time of purchase and with her knowledge of the circumstances of her mother and brother, Mrs Jamil would be likely to have promised her mother to secure the future accommodation of her mother and brother. By reason of her employment in real estate and her marriage prospects she would be likely to be in a position in the future to purchase other real estate for herself and any prospective husband. Knowing the financial circumstances of her mother and brother she was unconcerned at the level of financial contribution to be received as consideration, but was concerned that Mr Mansour should do what he could in maintenance and pay what he could to his mother to pass on to Mrs Jamil as consideration for the licence. Mrs Jamil made no attempt to remove her mother from the Croydon Park property during her lifetime. Until the death of their mother in October 1998, Mrs Jamil did not object to Mr Mansour residing in the property or occupying part of it as an office. Mrs Jamil, prior to and since the purchase of the property, had been generous to her impoverished mother and brother. She had assisted her brother in Family Court proceedings, in particular by swearing an affidavit of 8 May 1991 describing the Croydon Park property as "my mother's home" approximately two months prior to the birth of her first child and with the prospect of purchasing her own home, which she did eight months later. Para (j) In addition to the paragraphs which I have summarised, another event was that the purchase price of $50,000 payable at any time in the future was a price that Mr Mansour and/or his mother, with the prospect of inflation, might in the future reasonably expect to procure, even on pension incomes. 13 In his affidavit of 21 February 2001, Mr Mansour deposed: "8. In 1984 or 1985 I left with my wife and daughter to visit Canada, where my wife came from. While in Canada, I separated from my wife. When I returned, I found that Violet [Mrs Jamil] had found a family home for us, the house in Georges River Road at Croydon Park. Later, while we were working on the new family home, and in the kitchen there, my mother, Violet and I spoke together to the following effect. Violet said my mother and I could pay out the cost price of $50,000 whenever we could afford it for the transfer of title, that I was to do what I could in maintenance and in cutting the lawns, and that I could give whatever I could afford towards the cost of the house to my mother who would pass the money on to Violet for that purpose. We agreed." 14 In her affidavit of 9 March 2001, Mrs Jamil responded to that paragraph as follows: "(c) As to Paragraph 8 (i) I recollect that the Defendant went to Canada but do not remember the precise date. The money for the trip was borrowed from the Westpac Bank. The Defendant could not repay the bank and I settled the debt with the Bank to prevent the Defendant going bankrupt. Annexed hereto and marked with the letter 'A', is a true copy of a letter dated 5 October 1993 from SCS Mercantile Pty Limited, the bank's collection agent, confirming an agreement to settle the debt. Annexed hereto and marked with the letter 'B' is a true copy of a letter dated 15 January 1999 from Collection House, confirming that the account was settled. I repaid the entire $5,000.00 debt by instalments. There was a 'family home' at 147 Burwood Road Croydon Park which was in the name of my mother, the Defendant and myself. It was sold some time in 1984 and the proceeds were divided equally. From recollection, the proceeds came to about $2,000 each. That property had to be sold because the Defendant was not paying his share and my mother was sick. The Defendant did help with painting, sanding of floors and other tasks. The Defendant's help was not requested, and it would often cause arguments. After my mother and my father separated, the Defendant considered he was the head of the household and would not take advice. The Defendant just did what he wanted to do. I provided payment for all of the renovations. At that time the Defendant was living in Housing Commission premises. (ii) The Defendant did cut the lawns from time to time. I would bring my lawnmower to the premises and cut the lawns myself. I often noticed the next day that someone had cut them again. I was informed by my mother, and verily believe, that the Defendant had mowed again. (iii) I deny that there was any agreement as set out in the second last sentence of paragraph 8. (iv) On at least two occasions there were arguments because the Defendant wanted to commence 'renovations'. The Police were called. On one occasion the Defendant took a sledge hammer to the bath so that he could 'renovate' the bathroom." 15 Questioned by Mr Ash of counsel, who appeared for Mr Mansour, about paragraph 8 in Mr Mansour's affidavit of 21 February 2001, Mrs Jamil gave the following evidence: "ASH: Q. I want you to read paragraph 8, page 2 of that affidavit. First, I suggest that conversation actually took place? A. No. Q. When, on your version of events, you say that you bought the house and you moved into the property with your mother, how did Anthony react? Did he say anything to you? A. He always wished that he buys the house too. He always wanted to buy the property. Q. You gave evidence earlier that he thought he was the head of the family? A. Yes. Q. Did he express any interest in the residential fate of his mother? A. What do you mean? Q. Did he express an interest or did he say anything about the fact you and your mother were going to live in this property at Croydon Park? A. He was busy with his own problems at the time. Q. So, he was not acting as head of the family? A. It depends on how you translate. He is not there on top of our head, telling us 'go there, do this, do that', but he would do things by himself, because Dad wasn't with us, so he thinks he takes his place. He always has to put this – show us his authority, but I had – I mean, it is my own property. I bought my property. I borrowed my money myself. I had to go through hell to get the loan." 16 In the cross-examination that followed Mrs Jamil described her mother at the time as independent and disagreed with the proposition that Mr Mansour shopped for her day to day or on a regular basisl or that he felt duty bound to be with her. The following interchange took place in her cross-examination: "Q. You gave evidence earlier, and in your affidavit sworn 6 October, regarding police calls made by your mother. Could you go to page 4, paragraph 15, 'On a number of occasions….she would allow him back.' What do you mean 'she would allow him back.' A. It is her son. Q. Allow him back where? A. House, at the house, he causes problems, she calls the police for them to ask him to leave and he just comes back to visit or comes back to do whatever, but it doesn't mean he is living there, is what you are aiming at. Q. Do not worry about what I am aiming at. Do you mean she would allow him back on the next occasion, or allow him back into the home after the altercation took place? A. The last one I remember, she called the police, I arrived, the police were there, I said 'What's going on?' I don't remember the exact incident, what was the actual problem. They wanted to arrest him or take him away. I don't know if he pushed her or whatever has happened, but they wanted to take him away because they were going to arrest him, take him away. She said 'No, just as long as you caution him, no', so he is still there, he is back with the family. Q. I suggest he was allowed back with the family because he was living there? A. No, he wasn't living there, he was never permanently living there. Q. On page 5 paragraph 19 you say he had a conversation. Would you read that conversation? A. Yes. Q. You have said he said some words and then you said, 'You should get a job and purchase a house for yourself, I am not prepared to give you the house. Where do you say he was living at the time of that conversation? A. 1997, would have had the Paddington house, Lawson Street, Paddington. HIS HONOUR: Q. In the previous paragraph you said 'My brother Anthony receives some form of Social Security and I knew that he would not be able to come up with sufficient funds to purchase the house.' A. Mmm. Q. Yes, you agree that is there, is that right? A. Yes. ASH: Q. When you said 'You should get a job and purchase a house for yourself', why would he need to do that if he was living at Paddington? A. Because he is very – what's the word, is it greedy? He says 'I've got a property, that's good enough for me, why should I have a second one?' Even though I am the owner of the property, I worked for it, I have my right to have a second property, so I can live comfortably when I grow older. He says 'Already comfortable', I have a roof over my head, why do I need a second one, just – I don't know that it is. Q. At this time in 1997 you were still making payments in respect of the $5,000 agreement, were you not? A. Yes, the payments were not finished. Q. I think they finished in 1999 or thereabouts? A. I don't know if it is coincidental or what, but before Mum passed away there was a certain amount that is outstanding between me, and my Mum says 'Let's finish it off' because it is only a small amount. So, we paid off the actual one repayment, we paid it all together. Q. Is it fair to say you were coming fairly much to the end of your tether? A. Pardon? Q. Is it fair to say that you were running out of patience with your brother by 1997? A. Yes, everything was drying up. HIS HONOUR: What exactly does that answer mean, 'everything was drying up'? A. I have gone through too much, Mum's gone through too much. At the time in 1997 I had my own business where I was more freer financially, where I didn't have that any more. Everything – I was getting fed up with life even, too much. ASH: Q. With your own family arrangement? A. Yes." 17 Mrs Jamil's evidence negated, at least, the inferences described in paras (f), (g) and (i) of ground 1 of the notice of appeal, namely, that Mrs Jamil would "likely have promised her mother to secure the future accommodation of her mother and brother", "would likely be in a position in the future to purchase other real estate for herself and any prospective husband" and "was unconcerned at the level of financial contribution to be received as consideration". 18 The claim in para (j) that the purchase price was a price that Mr Mansour and or his mother, with the prospect of inflation, might in the future reasonably expect to procure, even on a pension income, was not put to her. The evidence suggests that Mrs Jamil borrowed the money necessary, apart from her own resources, to purchase the Croydon Park property and therefore committed herself to its repayment. I would regard it as unlikely that having accepted such a burden of repayment of principal and interest she would have in mind that at some unspecified time in the future she would be paid $50,000 for title under an arrangement which would give Mr Mansour the benefit of some assumed inflationary rise in the value of the property. Such a proposition is fanciful. 19 The extent to which Mr Mansour resided in the Croydon Park property is, left on the evidence, quite uncertain. From 1984 until 1999 he had available to him council housing first at Daceyville and then at 3/33 Lawson Street Paddington. In evidence before Sully J were the two files from the New South Wales State Department of Housing and two substantial folders of documents which Mr Mansour tendered. The documents were disorganised and not indexed. They have remained in the same state in the appeal books. I have been through them. It seems that from time to time Mr Mansour and his second wife and his second wife's mother may have occupied the Croydon Park property as a residence. For some time Mr Mansour used part of it as an office and stored what was described as "junk" on the outside part of the premises. Equally, there is material that from time to time he occupied the premises at Lawson Street. For some of the period of co-habitation in his second marriage this was treated as the matrimonial home. It is clearer that the mother occupied the Croydon Park property as a residence for some time up to her death. The relationship of a mother and her two children means that it not surprising that one or other or both mother and son would have occupied the Croydon Park property at least until the mother's death without any objection from Mrs Jamil. But, absent other evidence, the fact that this happened does not require or necessarily support the conclusion that Mr Mansour held an enforceable licence to occupy the Croydon Park property, even less an enforceable contract to purchase it for $50,000. 20 To the extent that the events listed in ground 1 were put at the trial, there is no reason to suppose that Sully J failed to take them into account. Neither separately nor together do they compel the conclusion that Mr Mansour had any enforceable licence to occupy the Croydon Park property. The evidence suggests otherwise. 21 Ground 2 was that Sully J erred in finding that there was a significant inconsistency between an albeit unenforceable option and (a licence for the consideration of) the payments and work. The latter (the combination of the payments and work) was the consideration for the licence. The licence on the terms claimed would have been an inappropriate and irrelevant descriptor of a proprietary interest necessary to support a caveat. 22 The caveat showed as address for service of notices on the caveator, the name and address of solicitors at Earlwood. The nature of the estate or interest in the land was described as "pursuant to a deed of option between the registered proprietor and the cavetor [sic] to purchase the subject property at cost price being an oral agreement." It was lodged in November 1998 and supported by a statutory declaration signed, apparently, by the solicitor. I would infer that no responsible solicitor, given by Mr Mansour the account of the circumstances leading to his claim that he occupied the Croydon Park property under a licence as embodied in the terms of his defence, would have lodged a caveat claiming an interest as described in the caveat. I agree with Sully J that the defined interest as expressed in the caveat was significantly inconsistent in concept with the licence for value of the kind upon which Mr Mansour now relies. His Honour observed that the available evidence gave no explanation of this apparent inconsistency. 23 Grounds 3, 4 and 7 can be dealt with together. Ground 3 was that Sully J placed undue weight on the fact that there was no documentary evidence of payment by Mr Mansour to his mother of $30-50 per fortnight, when by inference, persons living on pensions would normally conduct small money transactions in cash, and where regular repayment was not a requirement of the consideration for the licence, but only that he would, in relation to property maintenance and payments, "give whatever he could." Ground 4 was that Sully J erred in determining that the property maintenance work completed by a disabled Mr Mansour was inconsistent with a particular licence for value, where Mr Mansour asserted a licence that he was to "do what he could" and where a limited consideration for the licence could reasonably be inferred. Ground 7 was that Sully J erred in determining on the basis of Department of Housing rent arrears and Exhibit D "not that it was literally impossible for the defendant to have made some such fortnightly payments as he (alleged), but that it is highly unlikely that he in fact did so" when it was available to the defendant to pay the contributions to his mother and accumulate rent arrears, where the payment was at minimum $15 per week and where the licence did not require a regular payment as consideration but that the defendant would "do what he could". 24 In his defence Mr Mansour alleged that he paid to his mother $30-50 a fortnight in accordance with the arrangement to contribute to the cost of the house. In the course of his judgment Sully J said that Mr Mansour gave evidence that he paid $30-40 a fortnight to his late mother in accordance with the agreement upon which he relied and observed. There was no documentary evidence to corroborate that assertion. I do not read his Honour as placing any "undue weight" on that fact. If indeed Mr Mansour believed that these payments were being made as part of the consideration for acquiring the house I would have expected there to be some record at least so that he would know from time to time how much he had paid of the amount allegedly agreed upon. 25 Sully J's point was a different one, drawn from what seems to be the undisputed departmental material that Mr Mansour was in constant arrears with his rental payments to the Department of Housing. The impression his Honour formed from this material, "not that it was literally impossible for the defendant to have made at least some such fortnightly payments as he alleges he did make, but that it is highly unlikely that he did so", is in my opinion unexceptionable. In addition to this material, Sully J referred to an application by Mr Mansour to the Family Court of Australia asking that filing fees payable in connection with a proposed appeal to the Full Court be waived because the requirement that he pay the fee would cause him hardship. A verifying affidavit sworn on 22 June 1994 disclosed that he had a total income of $324 per fortnight and total expenditures of $320 per fortnight. To his Honour this material seemed to strengthen significantly the unlikelihood that Mr Mansour had in fact made regular fortnightly payments consistently with the requirements of the licence for value upon which he relied. I agree. 26 Sully J referred to Mr Mansour's evidence about things that he had done to and in connection with, the maintenance of the premises. His Honour said: "It seems clear that the defendant has indeed done over the years what might be described as odd jobs of one kind and another in, and to, and around the subject premises. There is not a great deal of particularity about such evidence as there is on this topic; and I am not persuaded that there is about the work done such a character and quality as is consistent, on the balance of probabilities, with the existence of a particular licence for value of the kind upon which [Mr Mansour] now relies." 27 Mrs Jamil gave evidence that Mr Mansour did work that was not wanted. Pressed in cross-examination she referred to a fence without a gate and his decision to open up a gate. She said: "So, he takes down the pole, the main one, leaves it there. Nobody asked him to do anything there, just because he decided he thinks he is helping, he is improving. He is the head of the family, so he does what he thinks is right. So, he opens that gate, takes the paling fence off and it opens up. I had to get someone to fix it, to finish it, to close it. ……. Another example, he started breaking down the bath because he think [sic] she wants to put a toilet in the bathroom. There is no toilet there, it is outside. He wants to put a toilet in, he gets a sledge hammer and starts hammering the bath. Who asked him to do that? Mum tried to stop him but she couldn't, so she ended up ringing the police." Mrs Jamil was asked: "Q. He was fixing the bathroom because he was living there, wasn't he? A. No, he wasn't living there. He imposed himself on us." Asked later in cross-examination what steps she had taken to rectify the result of his work with the sledge hammer, she said: "I had to redo the whole bathroom." 28 Sully J heard all this evidence. In my opinion it was open to his Honour to conclude that the work Mr Mansour did was not, on the balance of probabilities, consistent with the particular licence that he relied upon. 29 Ground 5 and ground 17 can conveniently be dealt with together. Ground 5 was that Sully J erred: "in reliance upon the mother's answer in a Department of Housing form: 'Do you, or any member of your family to be housed with you, presently own or have an interest in a residential property?' Mrs Mansour's answer was 'No.' where the question might reasonably be assumed to relate to a legal (rather than equitable) interest in the property and where the mother (who was not a lawyer) for family reasons may have wished to reside for a time with her son, (but in fact did not do so – although no evidence was adduced to this effect). In the alternative, for the reason set out in 2 above, the only 'interest' of the Defendant or his mother was not in truth a proprietary interest but a contract, the option clearly being unenforceable at law or in equity." 30 Ground 17 was as follows: "His Honour (paragraph 4(6) of the judgment) relied upon an answer given by the mother of the parties in a Department of Housing form, recited in ground 5, as contradictory of a licence for value when the evidence was that the mother could not read English (T6.4.01 p17.10)." 31 With due respect these grounds have no merit whatever. It was perfectly appropriate to take into account the mother's answer. If one assumes, as one is entitled to, that Mrs Mansour would have answered the question honestly, it tells against Mr Mansour's submission that the mother had agreed to buy the house and had a licence to occupy it. There is no reason to suppose that if the mother could not read the question in English it would not have been read to her in her own language before she was permitted or willing to answer it. 32 Ground 6 was that Sully J erred in finding that the procurement and use by Mr Mansour of the Department of Housing accommodation ( when on the evidence he had a family) was inconsistent with the licence for valuable consideration, bearing in mind that he was unemployed and available to assist his mother, maintain the property and otherwise "do what he could" as a consideration for the licence. For my own part I find it inconsistent with the arrangement suggested that in 1985, the year after, according to Mr Mansour, the arrangement was made, he should be looking for other accommodation for himself and his mother from the Housing Department. Sully J remarked that a letter written by the Departmental Regional Manager on 17 September 1985 was addressed to Mr Mansour's mother at the address of the Housing Commission accommodation of which he was then the tenant, notifying her that the Housing Commission had no objection to accommodation being provided for her at that address on the understanding that she would not thereby acquire necessarily any tenancy rights or rights of tenancy succession. His Honour said: "These events do not seem to me to sit comfortably with the present contentions of the defendant to the effect that he moved into the subject premises as a licensee for value and for the purpose, among others, of being on hand to support in those premises his late mother." I agree. 33 Ground 8 was that his Honour erred in determining that evidence that the defendant had represented the property as his regular residential and business address for some time was not materially corroborative of the licence for value. What his Honour said was that that consideration did not take the defendant very far in the direction of proof on the probabilities of the alleged licence for value. I agree. 34 Ground 9, 11 and 14 can be dealt with together. Ground 9 was: "His Honour in paragraph 4(10) of the judgment, whilst doubting the Plaintiff's credit concerning inconsistent Residential Tenancies Tribunal proceedings failed to consider that following her mother's death, the Plaintiff had sought to impose a rent of $200 per week on the Defendant (Plaintiff's affidavit of 6.10.00 – Annexure K), an agreement denied by the Defendant, letters from the Plaintiff to the Defendant (Annexures H2 and H5 to her affidavit) and the available corroborative inference that the Defendant was asserting the licence for valuable consideration which the Plaintiff well knew." 35 Ground 11 was as follows: "His Honour was in error in rejecting the defence submission referred to at the commencement of paragraph 4(11) of the judgment, which together with the available inferences referred to in ground 1, and the previous ground herein, together with his Honour's view of the Plaintiff's credit (paragraph 4(10) of the judgment) was wholly against the weight of the evidence." 36 Ground 14 was as follows: "His Honour (in paragraph 4(10) of the judgment) failed to give sufficient weight to the particulars in the Plaintiff's Residential Tenancies application (Plaintiff's affidavit - Annexure K) claiming rent of $200 per week for 45 weeks commencing from 27 October 1998 (the date of her mother's death) (and by implication, evidence given by her at the Tribunal hearing) of an inherently improbable tenancy commencing on the date of her mother's death, and with a substantial rent claim was in error in attributing her inconsistent claim in the possession proceedings to exasperation in taking any legal step plausibly available, to obtain possession." 37 Mrs Jamil in her application to the Residential Tenancies Tribunal alleged that Mr Mansour was her tenant and had promised to sign a lease and to pay rent of $200 per week. This was not consistent with her evidence that there was no arrangement between the parties whereunder Mr Mansour had some enforceable right to occupy the premises. But, in no sense, could it be said to corroborate Mr Mansour's account of the arrangement under which he claimed a licence to occupy the premises and a contract to purchase the premises for $50,000 on a payment of no more than $30-50 a fortnight or so much as he could manage to his mother for the costs of the house. 38 Ground 11 refers to that part of the judgment which follows Sully J's recital of Mrs Jamil's explanation for "the glaring inconsistency between what she told the Residential Tenancies Tribunal in 1999 and what she now tells this court" about the arrangement with Mr Mansour. His Honour said: "I do not say that I positively disbelieve this evidence: indeed I am inclined, rather, to accept the thrust of it as being consistent with the general impression that I have of the plaintiff, namely, that her attempts to get the defendant out of the subject premises have brought her to such a point of exasperation that she has been prepared to take practically any legal step available or plausibly available, for that purpose." 39 Sully J's finding about Mrs Jamil's reasons for beginning the proceedings in the Residential Tenancies Tribunal was a credit finding made by his Honour after hearing and observing Mrs Jamil and Mr Mansour in the witness box. It is not "wholly against the weight of the evidence". His Honour's explanation of why Mrs Jamil took the proceedings in the Tribunal was a reasonable one. 40 Ground 10 was as follows: "His Honour in paragraph 4(11) of the judgment erred in concluding that payment of the residential consideration of $50,000 for purchase of the property would require the Defendant to pay only instalments of $30 to $50 per fortnight, when the Plaintiff with her real estate experience would be aware that it would not be difficult for the Defendant on the appreciated value of the property to raise a mortgage of $50,000 on his Disability Pension, supplemented if necessary by sub-letting rooms, and where completion of the purchase had never become a requirement whilst the parties' mother was alive. Further, his Honour erred in the finding that the Defendant, by his defence, was asserting an arrangement whereby the $30 to $50 per fortnight was in respect of purchase. The prospective purchase was to be, as the defence says 'whenever they could afford it'; the fortnightly payments (and the maintenance) was in respect of the licence." 41 I have already dealt with this. The assertion was that Mrs Jamil would be aware of the matters set out. She was not asked. Mr Mansour pleaded that the $30-50 to be paid to his mother each fortnight was "in accordance with the arrangement to contribute to the cost of the house" not "in respect of the licence". 42 Ground 12 was that Sully J's determination that the licence for value pleaded was not established on the balance of probabilities was against the weight of evidence and in error. I am satisfied that it was open to Sully J to conclude that the licence for value pleaded was not established on the balance of probabilities. I agree with his Honour's conclusion. His Honour's findings were not against the weight of evidence or in error. 43 Ground 13 was as follows: "His Honour in the background of suggested Guardianship Board involvement and the Defendant's impoverished circumstances and limited pro bono representation, gave insufficient weight to the evidence of the Defendant and that adduced on his behalf." 44 Sully J made no mention of "suggested Guardianship Board involvement". I have found nothing in the evidence which explains this ground of appeal or gives such involvement, if any, significance. In his written submissions Mr Mansour referred to pending applications with the Protective Commission and the Guardianship Board. Whatever these may have been, they do not touch upon this appeal. The fact of Mr Mansour's "impoverished circumstances" was not likely to be a factor which would lead Mrs Jamil to make the improvident arrangement Mr Mansour suggests. Sully J was entitled to conclude that he was not satisfied that such an arrangement had been made between the parties. Mr Mansour's counsel cross-examined Mrs Jamil in detail. Mr Mansour was available to give instructions. I am not persuaded that his representation was limited in any material sense or that counsel failed to put the case in accordance with his duty to the court and his duty to his client. 45 Ground 15 was as follows: "His Honour erred in paragraph 4(12) holding that the Defendant's evidence was inexact, indefinite and indirect in the sense therein used, there being cogent material on the pleadings and in the evidence (not only the affidavits but, for example, also in the photographs of the Defendant's improvements to the garden) which ought in the absence of cogent evidence to the contrary have been accepted." 46 Having read through the evidentiary material, I am satisfied his Honour's categorisation of Mr Mansour's evidence was justified. In particular, I think his Honour was justified in not being satisfied that Mr Mansour had established the arrangement he alleged and pleaded. 47 Ground 16 and 19 can be dealt with together. Ground 16 was as follows: "His Honour (T7) warned: a. To adjourn the hearing; b. To deal with the Defendant for contempt in the face of the Court; c. To exclude the Defendant from the Court; d. Ignore anything said by the Defendant." 48 Ground 19 was as follows: "That on the grounds set out in the Appellant's affidavit affirmed 7 August 2001 - (i) The Appellant was denied procedural fairness; (ii) The Appellant was denied natural justice; (iii) His Honour should have adjourned the hearing on 6 April 2001 either at the commencement thereof or part heard, to enable the Appellant to serve subpoenae and adduce further evidence; (iv) His Honour demonstrated actual bias against the Appellant; (v) His Honour should have considered an adjournment based upon the limitations imposed on the Appellant's pro bono counsel by the Part 66A extension and the constraints imposed by the absence of the assistance of an instructing solicitor; (vi) His Honour should have considered that the Appellant's application for Legal Aid was made without legal assistance and that it was likely that no legal defence had been formulated until same was pleaded by his pro bono counsel. (vii) That had his Honour directed reconsideration by the Legal Aid Commission following the filing of a defence, it was likely aid would have been granted providing the Appellant with representation by solicitor and counsel and given the Appellant's means as a disability pensioner." 49 In his affidavit of 7 August 2001 Mr Mansour deposed relevantly as follows: "6. In much of the proceedings I was unrepresented, was refused legal aid and at short notice obtained the services of Mr David Ash of Counsel on a pro bono basis. 7. In proceedings before Mr Justice Sully on 11th and 12th December 2000 the matter of my representation in the proceedings was the subject of discussion. 8. At page 5 of transcript 12th December 2000, his Honour records the following facts with regard to my legal aid application - 29th September 2000 Application for legal aid received 6th October 2000 Limited grant of aid made 18th October 2000 Applicant's solicitor and Applicant advised by telephone of Commission's determination to refuse further legal aid 19th October 2000 Appeal to Legal Aid Review Committee lodged by Applicant 20th October 2000 Commission issues letter of determination confirming refusal of further extension of legal aid 29th November 2000 Legal Aid Review Committee determines appeal, upheld 5 December 2000 Legal Aid Review committee notifies applicant about appeal hearing. 9. Consequently on 11th and 12th December 2000 I appeared without representation. 10. On 2nd February 2001 (transcript page 9.4) Mr David Ash of Counsel noted his referral pursuant to Part 66A was for the preparation of a defence only, and sought an extension of the referral to the hearing issue. That extension was granted. 11. On 22nd March 2001 Mr Ash appeared on a limited basis to indicate he was briefed in the principal proceedings to appear on 6th April 2001 (transcript page 1.45). 12. For interlocutory matters on that day I was unrepresented, and made application to vacate the Order for an expedited hearing (transcript page 3), and indicated to his Honour that I was not comprehensively represented by Mr Ash (transcript page 3.55). I sought time to explore what representation was covered by the second certificate granted to Mr Ash under Part 66A (transcript page 5.0). I handed up to his Honour a document signed by my estranged wife, a true copy of which is annexed marked 'A' referring to conversations in her presence about my purchasing the Croydon Park by monthly payments. I showed this document to Mr Ash. 13. On 22nd March 2001 I indicated to his Honour that my case was very much unprepared (transcript page 5.55). I requested time to obtain further affidavits (transcript page 7.2) and to provide further instructions to my legal representative. At transcript page 8, Mr Ash confirmed he was instructed to act at the hearing on 6th April 2001 but provided no assistance with respect to my request to vacate the hearing to allow me time to prepare and instruct him. As an unrepresented person with no legal experience I was at a considerable disadvantage in indicating to the Court I needed further time to prepare and instruct him. 14. On 5th April 2001 Mr Ash said to me 'I will be in Court today.' He handed me a blank subpoena form and I sought assistance from staff in his Chambers to complete a large number of subpoenae. I attended the Court which refused to accept the subpoenae for filing and short service. 15. Consequently, witnesses including my estranged wife and neighbours were not present at Court to give evidence and my case was not properly prepared for hearing, nor properly presented. In all the circumstances, his Honour's refusal to vacate the hearing of 6th April 2001 was procedurally unfair, given the difficulties I had experienced in obtaining only limited representation. 16. Either on the afternoon of 5th April or on the morning of 6th April 2001 I told Mr Ash I had been unable to issue the subpoenae. 17. On 6th April 2001 Mr Ash did not request an adjournment. 18. On 6th April 2001 (page 1 transcript) I indicated to his Honour 'I do not seek a total adjournment'. By this I was content to have the matter proceed to be part heard, so that I could prepare and provide the further evidence in respect of which I was inadequately assisted by Mr Ash. His Honour either ignored or misunderstood my request and proceeded with the hearing. I had no opportunity to indicate the problems I had had in preparing the case. At page 3.5 of the transcript Mr Ash placed on record the refusal of abridged time for service of subpoenas, and acknowledged his error, despite which his Honour proceeded with the hearing. 19. Mr Ash had at no time spoken to my wife and I had various neighbours intended to be the subject of subpoena who could confirm that my place of residence since 1985 was the Croydon Park property, on a daily basis and because of the needs of my mother, with respect to insulin injections and a heart condition, in respect of which from time to time I attended at the doctor and hospital with my mother. 20. During the hearing on 6th April 2001 his Honour repeatedly told me to sit down, presumably on the basis that I was represented by Mr Ash. At page 7 of the transcript his Honour explained options, including that he could deal with me for contempt and a fourth expedient which he proposed to follow, that he would simply ignore what I said. At page 8.5 his Honour said 'We want Mrs Xiao Li' and Mr Ash informed his Honour that she was not available. The reason she was not available is the problem I had had in issuing a subpoena for her attendance. His Honour had been informed by Mr Ash of those subpoena difficulties, indicated my estranged wife should be cross examined, but proceeded with the hearing in her absence." 50 Annexure 'A' to the affidavit was a statement by Xiao Ai Li (Mrs Mansour) affirming and saying: "Since I first met my husband Anthony Mansour in February 1989 my husband has lived between our address 3/33 Lawson St Paddington and his family home with his mother at 319 Georges River Road Croydon Park Sydney NSW. After we get married Anthony spent most of his time at Croydon Park looking after his mother maintaining the family home as he always had cut the lawns and removed shrubs and shared our expenses with his mum. On one occassion [sic] Anthony was injured by a needle that went in his foot while he was sweeping the lounge room at Croydon Park, this resulted he had to stain [sic] over two weeks in hospital for operation remove the needle from his foot. Since we get married 1990, we met at Croydon Park many time. Anthony discuss with his sister Violet in front of me about buy the Croydon Park home by pament [sic] every month. Violet said get you $50,000 the place is yours any time." 51 The transcripts of the proceedings before Sully J in December 2000 and March 2001 were not put before us. It appears that on those dates the hearing date for April 2001 was fixed or confirmed despite Mr Mansour's objection. Apparently on 22 March 2001 Mr Mansour made a further attempt to have the hearing date vacated. There is nothing to suggest any impropriety in the manner in which the learned judge dealt with these applications. There is nothing to suggest that Mr Mansour did not have ample time within which to prepare his case. There is nothing to suggest any procedural unfairness. Apart from annexure 'A' to the affidavit nothing is put before us to indicate precisely what witnesses Mr Mansour wished to subpoena and in general terms what evidence those witnesses would be called to give. The impression is that they were persons who had seen Mr Mansour at the Croydon Park property. I am not persuaded that any of this evidence, including evidence in accordance with annexure 'A', if it had been available, would have made any difference to the outcome of the case. But what is more important is that Mr Mansour had plenty of time to arrange for the witnesses to be available at the hearing whether or not subpoenas were required. 52 The warnings referred to in ground 16 are found in a particular passage from the transcript of what occurred on the first morning of the trial after Mr Ash had announced his appearance for Mr Mansour. Despite being represented by counsel, Mr Mansour had made two short interruptions during Mrs Jamil's case tendering affidavit material. Mr Ash then referred to the affidavits upon which Mr Mansour relied and said "as currently instructed that is the affidavit evidence on which the defendant seeks to rely". The following then took place: "DEFENDANT: In the last moment, I had to note and – had handwriting there were missing details to my affidavit and indeed, there is indeed missing details to truly honourably, to the entire proceedings, and your Honour, the matter of subpoenas, the circumstances have been to date that Mr Ash has not had sufficient time to attend with me and he only had the opportunity to assist me to go and file subpoenas yesterday morning to which we tried but that was not sufficient time to subpoena, the other persons. Should the case be that we need them. And indeed we do need them to cover evidence entirely presented by both of us. HIS HONOUR: Yes, thank you – one of the things I need to – please sit down Mr Mansour. HIS HONOUR: Mr Baker, if I might just speak for a moment - ASH: Your Honour, there is one matter. If I may place on the record that the defendant approached the Deputy Registrar yesterday morning to seek a bridge of time for service of certain subpoenas, an affidavit drawn by me and sworn by Mr Mansour presented on the application and the application was refused. DEFENDANT: And Mr Ash made a mistake and he noted on that affidavit intending that I, to sign it, saying that he had been asking me to supply him with documents in the last four months, when Mr Ash was instructed – in January – it is about three months now - ASH: I acknowledge that error. DEFENDANT: All I am intending to say, the level – was a little bit critical of me but I amended it to say in my words that I signed this affidavit on the basis that my counsel has not had sufficient time to have neither feedback nor time with me to obtain the right timing for the filing of documents as indeed I am very critical of the way that the period for the filing of documents has carried out on, you know, not having sufficient time to consult with me at all. I was totally possibility your Honour, the affidavit – from the neighbours - HIS HONOUR: Mr Mansour, sit down please. Sit down please. DEFENDANT: This is my actual point. HIS HONOUR: Sit down please - DEFENDANT: But I need to be heard on everything. HIS HONOUR: Sit down please – sit down Mr Mansour. DEFENDANT: So when I was misinformed - HIS HONOUR: Sit down Mr Mansour, please. Do not have the idea, Mr Mansour, that by constantly interrupting like this you are in some way going to disrupt this hearing, because you are not, so sit down please. DEFENDANT: But - HIS HONOUR: Sit down Mr Mansour." 53 Some two or three pages later in the transcript, while Sully J was dealing with objections to affidavits filed on behalf of Mr Mansour and while his Honour was giving a ruling, Mr Mansour interrupted again. The following then took place: "ASH: Your Honour, Mr Mansour is under the illusion that my objection is based on some bad comment of his mental state of mind, your Honour. HIS HONOUR: Quite so. Mr Mansour, I would like to say something to you which I would like you to listen to and think about. It would be possible for me to deal with these constant interruptions of yours in any of a number of ways. I could for one thing simply adjourn the hearing until such time as you indicated that you were willing to observe the behaviour normally expected of litigants as well as their representatives in the court. Of course I am not going to do that. Because the result would be counter productive in the sense that it would negate the whole object of today's hearing, specially fixed as it has been for the purpose of bringing this litigation to an end rather than extending it even further. The second thing that I could do would be to deal with you for contempt in the face of the court. I am not going to do that either because that would simply be a distraction from the proper business of the court. I could, I believe, in the proper exercise of an inherent power and discretion have you excluded from the Court and proceed with the matter in your absence, being satisfied as I am that you are competently and professionally represented. I am not going to do that either for the reason that it would simply achieve nothing practical in the end result. But there is a fourth expedient and I propose to follow it. That expedient is that I don't propose to keep constantly telling you to sit down or to be silent or not to interrupt the smooth flow of the hearing. If you want to talk, well, I can't stop you doing that, but what I can do, and propose to do, is simply ignore what you say and get on with the hearing in the proper orderly way. Do you understand what I have just said to you – do you understand what I have just said. DEFENDANT: Do - HIS HONOUR: 'Yes' you do or 'no' you don't, which is it? DEFENDANT: There is something missing there. HIS HONOUR: There is nothing missing there. Do you understand what I have been saying to you? DEFENDANT: Your Honour I have a reply. HIS HONOUR: Do you understand what I have been saying to you? DEFENDANT: I do not understand your Honour that it is – first I would like to say that I have been thinking for a week what how can I handle this on 6 April. HIS HONOUR: Mr Mansour that will do. If you genuinely can't understand what I have said to you, a proposition which I as at present advised would not accept, I am sure that in due course you will come to understand. DEFENDANT: You are not hearing me at all. If something is wrong I have got to be able to object. HIS HONOUR: Mr Mansour, you are properly represented and that is the way this case is going to proceed. Mr Ash of counsel, who is representing you in a properly professional informed way will take what objections are proper. Now I can't put the points any clearer, you can say what you like, it is not - DEFENDANT: I would like what that was referring, mental health - HIS HONOUR: You are not going to keep interrupting. DEFENDANT: I need to know that point, affirmatively where it came from. HIS HONOUR: I have told you what I am going to do and as of now that is precisely what I am going to do. DEFENDANT: Because if I am not told that, if Mr Ash raised concerns about my mental health at all he is dismissed right now. That is my decision and I will not be before the Court when I am not able to object to matters. I am not comprehensively represented in my case. That is my position to your Honour. I have been contemplating on thinking what am I going to do on 6 April. I have been wishing that I just sit down and say thank you your Honour and go smoothly, but it doesn't work like that. HIS HONOUR: Mr Ash what is going to happen, get on with the cross-examination of these people, of those witnesses. We want Mrs Xiao Li, we don't I think need the other three in the events that have happened." 54 Thereafter the trial proceeded in a proper and orderly manner. A reading of the passage of the transcript which I have quoted demonstrates that Sully J, with due respect, handled Mr Mansour's persistent interruptions impeccably. Reading them one might be forgiven for thinking that Mr Mansour was attempting to disrupt the trial and put off the hearing of Mrs Jamil's claim. The choices posed by his Honour were appropriate. His Honour decided how the matter should proceed in a manner that might be regarded as indulgent to Mr Mansour. Instead of adjourning the hearing or dealing with Mr Mansour for contempt or having him excluded from the court, Sully J would ignore his outbursts. The appropriateness of the course he took was demonstrated by its effectiveness. In no way could this be said to have denied Mr Mansour the opportunity to instruct his counsel or be regarded as intimidating him in evidence or demonstrating bias "in the background of mental health issues raised by his counsel". In no sense was Mr Mansour denied procedural fairness. The suggestion to the contrary is without merit. 55 At no stage did counsel suggest to Sully J any of the matters set out in ground 19. It is not open on an appeal to raise such matters if they have not been taken before the trial Judge. In any event, having read through the evidence, I am satisfied that the trial was fair. I deprecate the attempt, when a judge reacts firmly to what, as I have said, may well have been an attempt by Mr Mansour to disrupt the trial, to suggest that there has been procedural unfairness. At no stage did counsel seek an adjournment, to issue further subpoenas or to call further evidence. I repeat that Mr Mansour had ample time to prepare for the trial. Mr Mansour bore the onus of establishing the existence of the licence upon which he relied. Ultimately, the success of his defence as pleaded depended upon his proving the circumstances he relied upon and in particular the conversation he relied upon. Sully J heard the evidence and was not so persuaded. Moreover, as one would expect, the trial was conducted fairly. 56 Ground 18 was as follows: "On the weight of the evidence the Court erred in failing to find a licence for value for possession of the property (a licence denied by the Plaintiff) and in respect whereof it was thereof impossible that reasonable notice of termination could have or had been given." This ground adds nothing to what has gone before. 57 In my opinion, Mr Massour's appeal fails on every ground. It should be dismissed with costs. 58 It was appropriate to deal with this appeal by considering whether Sully J had erred in the findings of fact he made or whether the trial miscarried. There remains, however, as a matter of law, a real question as to whether as pleaded there was any defence and, if so, its utility. Mr Mansour's defence did not allege any contract for the sale of land that could have been enforced at the suit of Mr Mansour: such arrangement as was alleged was uncertain in its terms and was not in writing. The licence alleged in the defence was one which, as a matter of law, would have been terminable upon the giving of reasonable notice. It should not be thought that, because this Court has approached the appeal as one against the trial Judge's factual conclusions, Mr Mansour's defence as pleaded could, if made out, have entitled him to more than reasonable notice of termination of a licence. In any event, the factual basis for such a defence was not made out. Orders 59 I propose the following orders. 1. Appeal dismissed with costs. 2. The costs to include the costs of the application for a stay. 3. Discharge as from the date of this judgment the stay made by Hodgson JA on 4 June 2001 and continued by this Court on 5 February 2002, to the intent that any payments, by way of occupation fee pursuant to the condition on which the stay was granted, made by Mr Mansour or any liability of Mr Mansour to make such payments up to the date of discharge of the stay are not affected by this order discharging the stay. 4. The plaintiff, Mrs Jamil, have leave to issue forthwith a writ of possession but that such writ shall lie in the Registry of the Supreme Court for a period of twenty-eight days from today. Thereafter the writ may be enforced without further order. 60 STEIN JA: I agree with Sheller JA. 61 HODGSON JA: I agree with Sheller JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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