Mine Subsidence Board v Frank and Louisa Kozak [2017] NSWSC 421

Supreme Court New South Wales

Medium Neutral Citation: Mine Subsidence Board v Frank and Louisa Kozak [2017] NSWSC 421 Hearing dates: 4 April 2017 Date of orders: 28 April 2017 Decision date: 28 April 2017 Jurisdiction: Common Law Before: Hamill J Decision: Judgment for the plaintiff for possession of land. Catchwords: CIVIL – claim for possession – defendants' home damaged by mining activity – plaintiff provides accommodation to defendants with legitimate claim under statutory scheme for compensation – decision to rebuild – whether plaintiff motivated by financial gain – defendants dislocated and disappointed – whether defendants acted to their detriment – whether defendants assumed legal or equitable right to remain in possession of property – whether act of plaintiff caused such an assumption – whether plaintiff acted in good faith – corruption – whether plaintiff acted fraudulently or corruptly – relevance of ICAC findings – alleged defects in property – lease – bare licence – equitable estoppel – "licence coupled with equity" – where no rent paid – where no certain term of occupancy – where plaintiff paid for most outgoings – "idiosyncratic notions of justice and fairness" – no equitable or other legal interest established Legislation Cited: Conveyancing Act 1919 (NSW) Landlord and Tenant Act 1899 (NSW) Landlord and Tenant Act 1948 (NSW) Mine Subsidence Compensation Act of 1961 Residential Tenancy Act 2010 (NSW) Cases Cited: Bishop v Taylor (1968) 118 CLR 518; [1968] HCA 68 Buono v Mazzella [2016] NSWSC 659 Lace v Chantler [1944] KB 368 Legune Land Pty Ltd v Northern Territory Land Corporation and Anor [2013] NTCA 7 Mangiola v Costanza [1980] ANZ ConR 331 Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 Swan v Uecker [2016] VSC 313 Walton Stores (Interstate) Ltd v Maher (1998) 164 CLR 387; [1988] HCA 7 Whitlock v Brew (1968) 118 CLR 445; [1968] HCA 71 Category: Principal judgment Parties: Mine Subsidence Board (Plaintiff) Frank Kozak (First Defendant) Louisa Kozak (Second Defendant) Representation: Counsel: Ms Penny Thew (Plaintiff)