Supreme Court New South Wales Medium Neutral Citation: Steele v Holmes [2013] NSWSC 875 Hearing dates: 27 and 28 June 2013 Decision date: 28 June 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Summons dismissed with ancillary orders and costs Catchwords: REAL PROPERTY - Torrens Title - leases - plaintiff-tenant claims entitlement to life tenancy arising from alleged oral agreements with predecessors-in-title of defendant-registered proprietor - plaintiff's claim failed on the facts Legislation Cited: Real Property Act 1900 Residential Tenancies Act 2010 NSW Landlord and Tenant Amendment Act 1948 NSW Cases Cited: Regent v Millett (1976) 133 CLR at 679 at 682-683 Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 614 Henderson v Henderson (1843) 67 ER 313, Port of Melbourne Authority v Anshun (1981) 147 CLR at 589 Category: Principal judgment Parties: Joan Steele (Plaintiff) Jean Holmes (Defendant) Representation: Plaintiff in person JM White (Defendant) Michael Michel & Associates Solicitors (Defendant) File Number(s): 2013/00046211 Judgment - EX TEMPORE 1The plaintiff is a self-represented litigant who, in these proceedings, claims an entitlement to occupy the property the subject of the proceedings, a home unit, as a tenant for life. She is a wily, determined litigator who would have been a worthy adversary for the late Peter Clyne, an expert in landlord and tenant litigation in the bygone era of protected tenancies. 2The defendant is the registered proprietor of an estate in fee simple in the property: that is, the land contained in folio identifier 32/SP 4360, known as xxxxxx xxxxx xxx xxxx, Lane Cove, in the State of New South Wales. 3The property is (strata title) land under the Real Property Act 1900 NSW. 4The defendant became registered proprietor of the property, by purchase, on or about 24 June 1991. 5The contract pursuant to which she purchased the property was dated 11 May 1991. That contract disclosed that, at that date, the property was occupied by the plaintiff and her husband. The "nature of [their] occupancy" was described by the contract in the following terms: "Holding over (lease expired)" and, under a related heading "Rental/Fee", appeared the sum of "$180". 6The plaintiff's husband died in or about 2004. 7She has occupied the property since 1984 or thereabouts. Throughout that time she has paid rent to the registered proprietor of the property for the time being. 8Since 2010 the parties have engaged in a process leading to a full round of litigation (apparently formally commenced in 2011) in the Consumer, Trader and Tenancy Tribunal ("the CTTT"). 9The CTTT is a statutory tribunal charged with jurisdiction to determine disputes about residential tenancies, including disputes about recovery of possession by a landlord. 10At one point, the plaintiff appealed to the District Court of New South Wales (pursuant to section 67 of the Consumer Trader and Tenancy Tribunal Act 2001 NSW) against orders made by the CTTT. On 10 December 2012, Robison DCJ dismissed two summonses filed by the plaintiff in that court seeking leave to appeal; and his Honour affirmed the decisions of the CTTT under challenge. 11The outcome of the parties' litigation in the CTTT and the District Court is that: (a) the CTTT has determined that the property is subject to the Residential Tenancies Act 2010 NSW and not the Landlord and Tenant Amendment Act 1948 NSW (12 September 2011; 17 September 2012). (b) the tenancy agreement between the plaintiff and the defendant has been terminated (by a termination order made by the CTTT pursuant to s 94 of the Residential Tenancies Act 2010 on 29 June 2012), with vacant possession of the property to be given to the defendant on a date determined by the Tribunal. 12The plaintiff has sought, by these proceedings in this court, to circumvent the processes of the CTTT and the District Court. She has done this by constructing a new case based upon a contention that, as far back as 1984, the then registered proprietor of the property agreed with her, and her husband, that they could have a tenancy for life. That case was not litigated, or foreshadowed, in the CTTT. 13The plaintiff has obtained interlocutory orders in the course of these (Supreme Court) proceedings which have kept at bay the defendant's attempts to enforce the CTTT's orders. 14So far as they are subsisting, the material interlocutory orders of this court comprise the following: (a) An order (made on 18 February 2013 and continued on 22 March 2013 pursuant to s 74K of the Real Property Act 1900) for extension of the operation of a caveat (caveat AH 122589), lodged by the plaintiff against the title of the property on or before 19 July 2012, which was subsequently the subject of a lapsing notice served by the defendant on the plaintiff. (b) An interlocutory injunction (granted on 18 February 2013 and continued on 22 March 2013) restraining the defendant from taking any action or steps to enforce orders made in the District Court proceedings. (c) An interlocutory injunction (granted on 23 May 2013) restraining the defendant from entering upon the property without the prior leave of the Court or the written consent of the plaintiff. (d) An interlocutory order (made on 23 May 2013) staying an access order that had been made by the CTTT with respect to the property. 15The plaintiff's caveat claims the following estate or interest in the property: "Interest arising from contributions made to the purchase price of the property by improvements, renovations, and maintenance". 16That entitlement is said, in the caveat, to have arisen from the following facts: "The interest of a lessee under a lease and an agreement (for property xxxxxx xxxxx xxx xxxx, Lane Cove 2066)". 17In these proceedings, the plaintiff's summons (filed on 14 February 2013) claims, in addition to interlocutory relief, "an order for specific performance by the defendant of an agreement for lease." 18In her conduct of the proceedings the plaintiff grounds her claim for relief for specific performance upon an alleged "agreement for lease" between her and successive predecessors in title of the defendant, by which the defendant (by her husband acting as an her agent) has allegedly agreed to abide. 19The plaintiff says that, in 1984, the then registered proprietor of the property agreed with her and her husband that they could live in the property for the rest of their lives, or as long as they might choose, if they fixed the place up and paid rent (indexed to the Consumer Price Index) to cover expenses. 20She says that a subsequent registered proprietor (the vendor to the defendant) agreed, in 1988, to honour that agreement, and did so. 21She says, further, that in or about July 2000 the defendant's husband orally acknowledged that he and the defendant were aware of (and happy to abide by) the alleged agreement between the plaintiff and earlier registered proprietors for the plaintiff to remain in the property as a tenant for life. 22All agreements alleged by the plaintiff to have been made are alleged to have been oral, not evidenced in writing. 23In so far as the agreements may have been unenforceable by reason of the "statute of frauds" provisions of the Conveyancing Act 1919 NSW (s 23C and s 54A), the plaintiff claims that she is entitled to an order for specific performance by reason of "acts of part performance" by her in performance of the alleged "agreement for lease". 24Those acts are said to have been work done on the property by the plaintiff and her husband (principally in or about 1984 but also subsequently) by way of repairs, improvements and maintenance. 25The plaintiff's evidence of an alleged "agreement for lease" for life, and the defendant's alleged acquiescence in that "agreement", is corroborated by evidence given by her adult children, a daughter and a son. The son, presently lives with the plaintiff. 26The defendant's health is such that, for many years, she has left to her husband the task of managing the property on her behalf. 27She swore an affidavit in these proceedings; but it was not read at the hearing before me. She gave no evidence at the hearing. 28The evidence adduced on her behalf took the form of an affidavit sworn by her husband (upon which he was cross-examined by the plaintiff) and documentation. 29The defendant's husband denies that he had any conversation with the plaintiff or her children, in or about July 2000 or at any other time, as deposed to by them. He can recall having been in the home unit only once, in 1994, at which time he had a conversation with the plaintiff and the plaintiff alone. The property has been managed, from time to time, by real estate agents. 30He says that, over the years, the defendant has effected substantial repairs to the property. He says, for example, that the defendant replaced carpet and two stoves. This evidence, which I accept, counters evidence of the plaintiff which suggests that she, alone, has borne the main economic burden of maintaining the property in good repair. 31The plaintiff's case must fail for a variety of reasons. 32First, at the most basic level, it must fail because I am not prepared to find as a fact that any of the agreements alleged by the plaintiff (in 1984, 1988, or 2000) was, in fact, made in the terms alleged by the plaintiff. 33Although the evidence of the plaintiff was corroborated by the evidence of her daughter and son, their evidence was prepared in circumstances, and expressed in terms, consistent with, at least, an unconscious collusion arising out of a deep affection between family members, and a shared anxiety about the plaintiff's imminent eviction from the property. The son, in particular, was in a position to share his mother's anxiety. 34The plaintiff's case about "an agreement for lease for life" has an air of recent invention about it. It emerged explicitly only during the course of these proceedings (most clearly in an affidavit sworn by the plaintiff on 30 April 2013), in the wake of dismissal of the plaintiff's appeal to the District Court. 35No corroborative evidence about the alleged conversations of 1984, 1988, and 2000 was adduced from outside the plaintiff's family. 36The earlier conversations are beyond meaningful investigation because of the passage of time and the absence of independent witnesses. 37The defendant's husband, convincingly, denies the conversation of 2000 attributed to him. I am not prepared to make a finding of the "2000 agreement" (if that is what it should be viewed as) in the light of his denial. On the contrary, I accept that no conversation occurred that could ground any form of agreement materially enforceable against the defendant. 38My finding that the conversation said to have occurred in 2000 did not occur does not, of itself, carry the consequence that the conversations attributed to 1984 and 1988 did not occur. However, having rejected evidence of an alleged 2000 conversation subjected to challenge, it is a small step to doubt about similar conversations said to have occurred in the 1980s. 39Secondly, even if agreements were made in the terms alleged by the plaintiff (in 1984, 1988 or 2000) those terms appear not to have been adhered to. The plaintiff says that her rent remained unchanged for many years. Any agreement for CPI increases appears to have been honoured in the breach. 40The plaintiff's first landlord may have allowed her and her husband a concessional rate of rent for an indefinite period in return for an understanding that the new tenants would make some repairs and improvements, but that was not an entrenched arrangement. 41The plaintiff has called on the defendant to bear expenses of repair, maintenance and improvement of the property. 42The fact that the plaintiff may have nurtured a growing sense of entitlement and, in recent years, may have claimed the status of a "protected tenant" does not make her so. Nor does it convert her from a periodic tenant to a tenant for life. 43Thirdly, the case for which the plaintiff contends against the defendant suffers from the absence of any relevant "contract" said to have been made between the plaintiff and the defendant. When taxed, at various times throughout the hearing, with the task of identifying the timing and content of the "agreement for lease for life" upon which she relies, the plaintiff returned consistently to a contention that the "agreement" she seeks to enforce is the agreement allegedly made in 1984. 44Fourthly, each of the "agreements" alleged by the plaintiff (if that's what they might be characterised as being) referable to events of 1984, 1988 and 2000, was said by the plaintiff to have been wholly oral and, prima facie, unenforceable by operation of the "statute of frauds" provisions of the Conveyancing Act 1919. 45The acts of part performance relied upon by the plaintiff to seek to justify an order for specific performance being made (against the defendant and without reference to any predecessors in title) are not, in my assessment, sufficiently connected with the terms of the alleged agreement(s) to qualify as acts of part performance. See Regent v Millett (1976) 133 CLR at 679 at 682-683. They are, at best, equivocal. 46Fifthly, the defendant became registered as proprietor of the property without notice of such, if any, entitlements the plaintiff might have had vis-a-vis the property beyond the entitlement of a periodic tenant "holding over" under an expired lease. 47There is nothing in the facts of this case that could attribute to the defendant an element of "fraud" within the meaning of s 42 of the Real Property Act as elaborated by Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 614. 48Section 53 of the Real Property Act contemplates that, when any land under the Act (such as the property) is intended to be "leased or demised for a life or lives or for any term of years exceeding three years", the proprietor shall execute an approved form. That did not happen here. 49The fact that it did not happen does not, of course, determine the plaintiff's rights (if any) in contract or in equity. Nevertheless, the factual matrix includes an absence of the formality that might reasonably be expected to attend any "agreement for lease for life". 50There is no evidence to suggest that the defendant became the registered proprietor of the property in circumstances in which she should have been aware of anything going beyond a tenancy being "held over" under an expired lease. 51Sixthly, and not insignificantly, the plaintiff's maintenance in these proceedings of a case not raised in the CTTT proceedings takes on the colour of an abuse of process in so far as it constitutes a collateral attack on the findings and orders of the CTTT and, moreover, an attempt to pursue a de facto "appeal" from the CTTT that goes beyond the rights for which the Tribunal's governing legislation provides. 52The plaintiff's conduct of her litigation in the CTTT to the point of a final determination, without agitating the case she seeks to make in these proceedings, is capable, at least, of permitting these proceedings to be characterised as an abuse of the processes of the Court. 53The defendant has advanced contentions based upon the principle in Henderson v Henderson (1843) 67 ER 313, elaborated in Port of Melbourne Authority v Anshun (1981) 147 CLR at 589, and by reference to the concepts of res judicata and abuse of process. 54It is not necessary for me to explore these contentions in detail because the plaintiff's claim must fail on the facts. Nevertheless, I note for the record that contentions of this character have been aired in the course of hearing the plaintiff's summons. 55The plaintiff's summons must fail. 56Its dismissal will, without more, carry with it termination of the various interlocutory orders that have been, to date, enjoyed by the plaintiff. That will clear the way for enforcement of the orders of the CTTT in accordance with the ordinary processes of the Tribunal. 57Without prejudice to the generality of these observations, and in the hope of forestalling unnecessary debate, the orders I propose to make will specifically order the discharge of particular interlocutory orders. 58Upon discharge of the Court's order for extension of the plaintiff's caveat, the Registrar General can proceed on the basis that the caveat has lapsed: Real Property Act 1900 s 74LA(2). 59With the orders I propose to make, these proceedings will be largely spent. What will remain, however, is a need for a decision by the defendant as to whether or not she will make a claim for compensation against the plaintiff arising from the undertakings as to damages given to the Court by the plaintiff as the price of obtaining interlocutory injunctions or (pursuant to s 74P of the Real Property Act) arising from lodgement of the plaintiff's caveat on the title to the property. 60I propose to subject the defendant to a time constraint in the making of any application for compensation so as to facilitate the bringing of this phase of the parties' litigation to an end. 61I make the following orders and notations: (1) Order that the summons (filed 14 February 2013) be dismissed. (2) Order that the order for extension of caveat AH122589 made on 22 March 2013 (until further order) be discharged. (3) Order that the injunction granted on 22 March 2013 (until further order), in respect of proceedings numbered 2012/234194 in the District Court of New South Wales, be discharged. (4) Order that the injunction and stay order granted on 23 May 2013 (as orders numbered 1 and 2 respectively) be discharged. (5) Note that the intendment of these orders is that enforcement of orders made by the Consumer, Trader and Tenancy Tribunal in proceedings between the plaintiff and the defendant (in respect of the land compromising lot 32 in strata plan 4360 being the whole of the land contained in folio identifier 32/SP4360 and known as xxxxxx xxxxx xxx xxxx, Lane Cove, in the State of New South Wales) not be constrained by the operation of any order made by this Court. (6) Reserve to the defendant liberty to apply for an order or orders for compensation payable in respect of: (a) undertakings as to damages given to the Court by the plaintiff in these proceedings; and/or (b) caveat AH122589 (pursuant to s 74P of the Real Property Act 1900 NSW). (7) Direct that any application that might be made by the defendant for compensation pursuant to the liberty reserved in paragraph 6 be made by a notice of motion filed in these proceedings no later than 30 August 2013 or the expiry of one month after the plaintiff delivers up to the defendant vacant possession of the premises known as xxxxxx xxxxx xxx xxxx, Lane Cove, whichever is the later. (8) Order that the plaintiff pay the defendant's costs of these proceedings, save for the costs of the defendant's amended notice of motion filed 9 May 2013, as assessed or agreed on the ordinary basis. (9) Order that exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. ********** 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: 02 July 2013