Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944

Supreme Court New South Wales

Medium Neutral Citation: Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944 Hearing dates: 24 November – 8 December 2014, 17 December 2014, 5 February 2015, 5 – 7 May 2015 Decision date: 16 July 2015 Jurisdiction: Equity Division Before: Stevenson J Decision: (1) Plaintiffs' claim to be dismissed. (2) Cross-claimant entitled to declaration of entitlement to possession of Clontarf Street property. (3) Parties to make submissions concerning Court's power to terminate residential tenancy agreement and make order for possession. (4) Cross-claimant entitled to profit made by cross-defendants on the sale of Beecroft property. (5) Cross-claim otherwise to be dismissed. (6) Notice of motion of 2 December 2014 to be dismissed. (7) Parties to bring in short minutes to give effect to these reasons. Catchwords: CONTRACT – whether oral partnership or joint venture entered into between first plaintiff and defendant's late husband to develop properties then owned by late husband – whether such partnership survived the death of the defendant's late husband – whether defendant bound by agreement or otherwise to continue arrangements allegedly agreed to by her late husband – whether first plaintiff entitled to recovery under a quantum meruit; LANDLORD AND TENANT – residential tenancy agreement – whether defendant/cross-claimant entitled to possession of property the subject of oral residential tenancy agreement – whether Court has jurisdiction to make an order terminating the residential tenancy or an order for possession; EQUITY – whether plaintiffs acted in breach of fiduciary duty to defendant – whether plaintiffs obliged to account to defendant for profit thereby made Legislation Cited: Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Conveyancing Act 1919 (NSW) Partnership Act 1892 (NSW) Probate and Administration Act 1898 (NSW) Residential Tenancies Act 1987 (NSW) Residential Tenancies Act 2010 (NSW) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Aboriginal Housing Company Ltd v Kaye-Engel (No. 3) [2014] NSWSC 718 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Browne v Dunn (1893) 6 R 67 Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 Consul Development Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8; 132 CLR 373 Fulton v Fulton [2014] NSWSC 619 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; 156 CLR 41 Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd [1958] HCA 33; 100 CLR 342 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Pedersen v Larcombe [2008] NSWSC 1362 Phipps v Boardman [1967] 2 AC 46 Queensland Mines Ltd v Hudson (1978) 52 ALJR 399 Reid v Kerr (1974) 9 SASR 367 Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100 Texts Cited: J D Heydon, Cross on Evidence, (Looseleaf Edition, LexisNexis Butterworths) J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane's Equity: Doctrines & Remedies, (5th ed 2014, LexisNexis Butterworths) K Mason, J W Carter and G J Tolhurst, Restitution Law in Australia, (2nd ed 2008, LexisNexis Butterworths) Category: Principal judgment Parties: Wayne Lawrence (First Plaintiff/First Cross-Defendant) Valerie Lawrence (Second Plaintiff/Second Cross-Defendant) Frances Gunner (Defendant/Cross-Claimant) Representation: Counsel: P E King (Plaintiffs/Cross-Defendants) B W Collins QC with A Hourigan (Defendant/Cross-Claimant)