Re P [2012] NSWSC 987

Supreme Court New South Wales

Medium Neutral Citation: Re P [2012] NSWSC 987 Hearing dates: 15 August 2012 Decision date: 15 August 2012 Before: White J Decision: Refer to para [14] of judgment. Catchwords: REAL PROPERTY - application for judgment for possession - application by legal owner of property - whether defendant has equitable interest in property - whether plaintiff and defendant in de facto relationship - no defence to claim for possession Legislation Cited: Property (Relationships) Act 1984 Category: Principal judgment Parties: P (Plaintiff) Defendant Representation: Counsel: C Zucker, solicitor (Plaintiff) In person (Defendant) Solicitors: Zucker Legal (Plaintiff) File Number(s): 2011/318545

Judgment 1HIS HONOUR: These proceedings are brought by the plaintiff through her tutor the NSW Trustee & Guardian. The NSW Trustee & Guardian was appointed as manager of the plaintiff's estate on 16 August 2010. The plaintiff is 88 years old. She currently resides in a nursing home known as Georges Manor Nursing Home. She is liable to pay an accommodation bond for that residence and interest is continuing to run on that liability. (The proceedings were heard and determined in open court, but I have anonymised the transcript of these reasons as the plaintiff is a protected person.) 2The plaintiff is the registered proprietor of a property in [xxxxxxxxxxxx xxxxxx], Milperra. The defendant is in possession of that property. The plaintiff through her tutor the NSW Trustee & Guardian seeks judgment for possession of the property and leave to issue a writ of possession forthwith. As the legal owner of the property the plaintiff is entitled to possession. The defendant has represented himself on this application. In his defence filed on 18 November 2011 he alleged that he had been in a de facto relationship with the plaintiff for over 17 years and he sought "a declaration that I've an equitable interest in the property...". 3It is the defendant's evidence that he initially moved into a granny flat on the property on 7 August 1992. He says that at that time he paid rent. The plaintiff and her then husband resided in the principal house on the property. The plaintiff's husband died in 1993. The defendant says that he paid rent until either 1993 when the plaintiff's husband died or - the evidence was not clear about this - April 1994. It is the defendant's case that in April 1994 he and the plaintiff commenced a sexual relationship. Indeed, he says that the Seventh Day Adventist Church arranged for him to take up residence on the property with a view to testing his adherence to the Ten Commandments. He says that the plaintiff lured him into a sexual relationship and that he became, to use his words, "her sex slave" from that time. 4The defendant says that he did work on the property; in particular he repaired gutters and fascia boards, he used his money to buy garden tools, such as a whipper snipper or spare parts, and that he contributed to the expenses the plaintiff incurred. 5The defendant also accuses the plaintiff of having laced soup she provided to him with hallucinogens. He says that the plaintiff was instrumental in their forming an intimate relationship, contrary to his wish and contrary to his attempts to obtain personal sanctification. He accuses the plaintiff of causing a blockage of a ventricle to his heart resulting in ulceration of his legs through, as I understand it, forcing him to swallow his own urine. 6These are bizarre claims, but, whether true or not, they provide no defence to the claim for possession. 7On his own evidence, corroborated by the evidence of others, the defendant remained in occupation of the house until October 2000. He then moved away, as I understand it for missionary or like work, for a period of six and a half years. He returned and lived with the plaintiff for a week in March 2007 before travelling to South America. He returned in October 2009. Thus, for the period of nine years from October 2000 to October 2009 the defendant lived with the plaintiff for no more than a week. 8The plaintiff suffered a fall on 12 May 2010. Following that fall she was admitted to Bankstown Hospital and thereafter to the aged care facility at Georges Hall. 9No application has been made by the defendant for an order under s 20 of the Property (Relationships) Act 1984. Under that section a Court can make orders adjusting the interests of parties to a domestic relationship. On the face of it, if any application were made for an order under that Act the claim would face some considerable difficulties. It seems clear that except for perhaps a period of one week in March 2007 the plaintiff and the defendant did not live in a de facto relationship. That is, they did not live together as a couple for a period of nine years from October 2000 to October 2009. Any claim based upon their relationship prior to October 2000 would face the problem that it was brought well out of time, and any claim based upon their later cohabitation would face the difficulty of establishing the requisite period of a relationship of more than two years. However, it is unnecessary to pursue these questions because no application has been made for an order adjusting the financial relationship of the parties under that Act. 10It is clear on the defendant's evidence that he is not in possession of the property pursuant to a residential tenancy agreement. Nor has that been asserted. His claim is that because of what he asserts to be the de facto relationship that he has with the plaintiff, and his having done work on the property, and as a result of what he says is his having been abused in various ways by the plaintiff, he is entitled to remain in possession of the property. 11There is no legal basis for those assertions. Even if his relationship with the plaintiff and work done by him on the property were such as to give him an equitable interest in the property, as asserted in his defence, that would not entitle the defendant to restrain the exercise by the plaintiff through the NSW Trustee & Guardian of her right as legal owner of the property to sell it and to obtain vacant possession for that purpose. I should say, however, that the evidence, if it can be called such, adduced on this application does not satisfy me that the defendant does have an equitable interest in the property. 12The NSW Trustee & Guardian advised the defendant by letter dated 3 May 2011 that it had decided to sell the Milperra property because the plaintiff had been placed permanently at Advantaged Care at Georges Hall and was required to pay the accommodation bond, and because her income is insufficient to meet her living expenses and the interest on that bond. The NSW Trustee & Guardian advised that the depletion of funds was of a concern that required the sale of assets to repay outstanding debts and to support living expenses. 13The defendant sought a review of that decision by the Administrative Decisions Tribunal. That application was dismissed. On 19 August 2011 the Administrative Decisions Tribunal made an order lifting a previous stay. Prior to that date the decision that the defendant vacate the property within 14 days of 5 July 2011 had been stayed. It had been stayed until 17 August 2011. That stay, as I have said, was lifted on 17 August 2011. The Administrative Decisions Tribunal dismissed the defendant's application to review the decision of the NSW Trustee & Guardian. Hence he has been on notice now for almost a year that he is required to leave the property. Having regard to that length of time I do not think that the defendant is entitled to further time to remain on the property before vacating it. 14I make the following orders: 1. I give judgment in favour of the plaintiff for possession of the land in folio identifier 3/524737 being the property known as [xxx xxxxxxxxxxxx xxxxxx], Milperra, New South Wales. 2. I give leave to the plaintiff to apply for the issue of a writ of possession forthwith and direct that such a writ be issued forthwith. 3. I order that the defendant pay the plaintiff's costs. The exhibit and the Court book are to be dealt with in accordance with the Practice Note. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 August 2012