Hyatt v Public Trustee; Public Trustee v Hyatt [2007] NSWSC 1525

New South Wales Supreme Court

CITATION : Hyatt v Public Trustee; Public Trustee v Hyatt [2007] NSWSC 1525

HEARING DATE(S) : 15 and 16 August 2007

JUDGMENT DATE : 16 August 2007

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

EX TEMPORE JUDGMENT DATE : 16 August 2007

DECISION : Order for possession made

CATCHWORDS : EQUITY - estoppel by representation - cross-claim to claim for possession - handing over title deeds with statement "it is yours" - whether reliance on this in light of knowledge deceased intended to make will to provide for this - whether any detriment

Paula Anne Hyatt (Plaintiff in 4742/06 and First Defendant/First Cross-Claimant in 4742/06)) PARTIES : Public Trustee Company of New South Wales (Defendant in 4742.06 and Plaintiff/Cross Defendant in 5795/06) Roger Hyatt (Second Defendant /Second Cross-Claimant in 5795/06)

FILE NUMBER(S) : SC 4742/06; 5795/06

COUNSEL : Mr D Macfarlane (Hyatt) Mr L Ellison SC (Public Trustee)

SOLICITORS : John R De Mattia & Co (Hyatt) Clinch Neville Long Leatherbarrow (Public Trustee)

- 8 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

THURSDAY 16 AUGUST 2007

4742/06 - PAULA ANNE HYATT v PUBLIC TRUSTEE 5795/06 - PUBLIC TRUSTEE v PAULA ANNE HYATT & ORS

JUDGMENT

1 HIS HONOUR: Frank Freeman died on 24 January 1994. At that time he was married to Marcia Freeman. He had been previously married to Doreen Freeman but she had died in 1986. Mr Freeman and his first wife owned a property at 9 Grandview Street, Penrith as joint tenants. The property, therefore, would have passed to Mrs Freeman by survivorship, but the title was not adjusted and remained in the names of the joint tenants. 2 Mr Freeman married Mrs Marcia Freeman on 16 January 1991 and they lived together at Grandview Street. Mr Freeman and his first wife had a daughter, Paula, born on 6 May 1970. She married her present husband, Mr Roger Hyatt, in June 1991. 3 Mr Freeman died intestate. No application for a grant of administration of this estate was made by his widow. By 1998 Marcia, whom I will now call Mrs Freeman, was in ill health, having suffered a stroke and a heart attack. She moved to a nursing home at Seven Hills in October 1998, and from there moved in 2001 to a different nursing home at St Marys where she currently resides. 4 On 3 June 2004 an order was made by the Guardianship Tribunal committing the management of the estate of Mrs Freeman to the Protective Commissioner. As a result of this, at the request of the Protective Commissioner, the Public Trustee applied for and obtained a grant of letters of administration of the estate of Mr Freeman on 29 April 2005. Title to the Grandview Street property was then transmitted into the name of the Public Trustee. 5 In 1993 Mr and Mrs Hyatt purchased a home at Cranebrook for $120,000. Quite how this was funded is not clear, but there was a mortgage to Permanent Trustee Company Limited of $45,763, and it seems most, if not all, of the balance of the purchase money was obtained through what was described as a residential lease scheme, or some housing lease scheme, which must have been available for low income earners. In any event, whatever the position, Mr and Mrs Hyatt had little, if any, equity in the property. The funder, apart from the trustee company, was, according to a settlement statement when the property was sold, NSW Rent-Buy Pty Ltd. 6 In 1995 a Mr Tomkin moved into the Grandview Street home while Mrs Freeman was still there. The arrangement was supposed to be that he provide assistance to her in the house and garden, and with shopping and such matters. He remained there after Mrs Freeman moved to the nursing home. It seems he was expected to pay rent, but there is no evidence whether he did pay or did not. What is clear is that he did not look after the house. It fell into disarray, and there were complaints from neighbours. Mr and Mrs Hyatt ejected him in July 2001. 7 After they had obtained possession, Mr and Mrs Hyatt commenced clearing up and renovating the property. It should be remembered that this is the house where Mrs Hyatt lived prior to her marriage. The clearing up and renovation was a big task, but, by September, the evidence is that it was well on its way to completion and at least two thirds of the work had been done by then. Mrs Hyatt says that she and her husband took Mrs Freeman to visit the house and to see the work which had been done. She says that the following conversation took place: Paula: Something has to be done to the house when we are finished.