Frimont v Case

The pleading

1. The defendant, having said that Robert was in failing health, went on to plead: 38. In about September, 2010, the Defendant, alternatively the Defendant and his wife Peggy Lorraine Case, agreed to give up their present accommodation and move into the residence on the Land at that time occupied by Robert Albert Case and provide domestic services to Robert Albert Case. Particulars Conversation at the Residence in or about the date stated, between Robert Albert Case and the Defendant and his wife Peggy Lorraine Case (in which conversation Plaintiff, the Plaintiff's husband Walter Frimont and Robert Wayne Case also participated). 39. Pursuant to the agreement referred to in the previous paragraph, the Defendant and Peggy Lorraine Case moved from their then current residence and occupied the residence on the Land, and in accordance with their agreement, provided domestic services including cooking, cleaning, housekeeping and personal assistance to Robert Albert Case until his death. 40. In the circumstances, there was a residential tenancy agreement between Robert Albert Case as landlord and the Defendant (alternatively, the Defendant and Peggy Lorraine Case) as tenants. … 43. Following the death of Robert Albert Case, in consideration for remaining in occupation of the Residence, the Defendant and his wife Peggy paid half the rates and charges levied by Hawkesbury City Council in respect of the Land, to the knowledge of the Plaintiff. 44. The Defendant and his wife Peggy paid half the Council rates and charges up to and including the 2017/2018 rating year, to the knowledge of the Plaintiff. 45. In the circumstances, there was a residential tenancy agreement between the estate of Albert Bruce Case as landlord and the Defendant (alternatively, the Defendant and Peggy) as tenants of the Residence. … 48. Following her appointment as administrator of the estate of the late Albert Bruce Case, the Defendant and Peggy, to the knowledge of the Plaintiff continued to make payments towards half of the Council rates and charges by various instalments, the last of which was paid to Council on 20 August 2018 in the sum of $100, and the Plaintiff accepted the payments. 49. In the circumstances, there was a residential tenancy agreement of the Residence between the Plaintiff as administrator of the estate of the late Albert Bruce Case as landlord and the defendant, alternatively, the Defendant and Peggy, as tenant. 50. In the alternative, by the acceptance of half of the rates as consideration for remaining in possession of the Residence and remaining in possession of the Residence for approximately eight years, the Plaintiff as administrator encouraged the Defendant (alternatively, the Defendant and Peggy) to believe that they had a residential tenancy agreement, so they (sic) are estopped from denying that there was a residential tenancy agreement between the Plaintiff as Administrator as landlord and the Defendant (alternatively, the defendant and Peggy) as tenant.
2. The defendant then goes on to plead that this Court has no jurisdiction by reason of s 119 of the Residential Tenancies Act. Section 119 provides: Prohibition on certain recovery proceedings in courts A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement.
3. In the alternative, it is pleaded that the Defendant occupies the premises from year to year, that such a tenancy is terminable on one month's notice under s 127 of the Conveyancing Act 1919 (NSW), and that no such notice has been given.

Submissions

1. Mr Trebeck of counsel for the defendant submitted that at the time the defendant moved to the property he entered into "an arrangement" with "the major beneficiary of an estate" (being Robert) to provide domestic services to him. Counsel submitted that at that point there was a residential tenancy agreement. He submitted that at the time Robert died, the residential tenancy agreement continued and has not been terminated. He submitted that the death of the landlord does not mean that the residential tenancy agreement comes to an end. Counsel submitted that when the plaintiff became the legal owner of the land, her "title was fed" as an estoppel. Counsel submitted that the estoppel commenced to operate at the time of the arrangement because all of the relevant beneficiaries of the estate "submitted to or adopted or agreed with" the arrangement.
2. The matter was put on an alternative basis, that since the plaintiff became the registered proprietor of the land, there was payment of rent in accordance with the agreement that had been made with Robert. Counsel submitted that a tenancy at will came into operation at that point and s 127 of the Conveyancing Act operated to mean that there was a tenancy determinable by one month's notice in writing at any time. Counsel submitted further, that if there's a 127 tenancy, then there must necessarily be, and if the 127 is a dwelling house, a residence, then there must be necessarily also be a residential tenancy subject to the protection of the Residential Tenancies Act. Ultimately, Mr Trebeck abandoned any claim based on s 127 and a tenancy at will. He agreed that his case stood or fell on whether he could establish a residential tenancy agreement.
3. Although it was pleaded that the defendant's purpose in moving to the house was to look after Robert, it was not submitted that the care given by the defendant to Robert constituted the "value" for the purpose of s 13 of the RTA. The only consideration suggested as "value" was the payment of some of the rates.

The evidence

1. The evidence put forward by the defendant was left in a most unsatisfactory state, particularly concerning the issue of "value". As I have indicated, as a result of objections taken by counsel for the plaintiff, large portions of the defendant's affidavits were not read. The result was that some statements and events were left without context.
2. The defendant said in his affidavit sworn 19 May 2020 that at some unspecified time after April 2004 when the defendant's mother died, he detected that Robert's health was going downhill. The defendant said that in September 2010 Robert told the defendant and his wife Peggy that he was terminally ill. Shortly afterwards he asked the defendant and Peggy to go up to the property. What was said at a meeting, which was also said to include the plaintiff and her husband, was not in evidence because the defendant's counsel said that he was not reading the paragraph which detailed what took place.
3. The defendant said that shortly after that meeting he and Peggy moved into the house on the land. He said they continued to care for Bob and worked the farm with the help of their sons. He said that from shortly after the time he and Peggy moved in, they paid one half of the council rates each year, and continued to do so until 2018 when the rates notices stopped coming to the post box. A similar account of going to the property in 2010 and about the payment of the rates was given by the defendant's wife in an affidavit sworn 19 May 2020.
4. On the other hand, both the plaintiff and her husband deny that they were ever at such a meeting and deny that the plaintiff said the things attributed to her.
5. An example of a statement being left without context occurs in the affidavit of Robert Wayne Case of 15 May 2020. The only evidence given by that witness is that he could recall the plaintiff saying "It's a good idea and Don and Peggy can pay half the rates. That will help Mark". Even if I read those parts of the affidavit which were not read in order to obtain the context, being the meeting at Robert's house, the evidence is not consistent with the case pleaded. In the case pleaded, the first mention of payment of rates is "following the death of Robert". However, it is pleaded that before Robert's death, and on the defendant and Peggy moving into the house, a residential tenancy agreement came into being, the consideration for which was said to be the provision of domestic services to Robert.
6. There is nothing in the affidavit of Patricia Dianne Jongkryg which says anything about the meeting. The affidavit simply says that she was aware toward the end of 2010 that Don and Peggy moved "into 282" when uncle Robert became ill.
7. Similarly, the affidavit of Sandra Lynette Case says only: 6. In about September 2010, I saw that Don and Peggy had moved in with Bob at 282 and were taking care of him.
8. In the affidavit of Peggy Lorraine Case, the deponent says only that when Bob became very ill, they (she and the defendant) moved into 282 after a meeting with Bob, Pam, Wally, Robert, Don and her. No evidence is given about what particular arrangements were to be put in place.
9. Jennifer Marie Case in her affidavit of 26 May 2020 says only that she recalled that when "uncle Bob" became ill, Donald and Peggy moved into 282 Blaxlands Ridge Road and they cared for him.
10. There is, therefore, no evidence about any agreement with anyone, or even an offer from the defendant, to pay the rates. At its highest for the defendant, there is the statement deposed by Robert Wayne Case that the plaintiff said that "Don and Peggy can pay half the rates", but the deponent does not record any agreement by the defendant that he would do so. There is simply the evidence from the defendant that he did so.
11. There is a further difficulty about whether the plaintiff and her husband were present at that meeting. Both the plaintiff and her husband denied in their affidavits that they attended the meeting alleged by the defendant and his wife, and both denied that the plaintiff ever said anything about them being able to help Mark by paying half of the rates. Counsel for the defendant did not cross-examine either the plaintiff or her husband concerning those denials. The matter was so central to the defendant's claims that, when that absence of cross-examination is coupled with the paucity of evidence on the defendant's side about the matter, I am not prepared to find that the plaintiff and her husband attended any such meeting. I accept the plaintiff's evidence and that of her husband that they were not present and that she did not say what it is alleged she said.

Determination

1. It can be seen from the pleading that there are three different occasions when a residential tenancy agreement is said to have come into effect. The first was at the end of 2010 when the defendant made the arrangement with Robert to move in to the property. The defendant does not submit that this was an agreement with anyone other than Robert, but it is said to form the basis and context for the further residential tenancy agreement which came into effect after Robert died. It is said also that this first agreement has never come to an end, because the death of the landlord does not result in a termination of the tenancy. The second occasion is when Robert died. The third occasion is when the plaintiff became the Administrator or at least when the land was transmitted to her.

The first agreement - end of 2010

1. There are a number of difficulties associated with a conclusion that a residential tenancy agreement came into being between Robert and the defendant when the Defendant and Peggy moved into the house. The first is that there is no certainty about what care was to be provided so that the care could be regarded as constituting "value" for the purposes of s 13. For a lease at common law to come into existence, there must be a term identifying the rent or a mechanism for determining the rent: Whitlock v Brew (1968) 118 CLR 445 at 456 and 460. Further, the party asserting that an agreement exists, must show that there was an intention to create legal relations, even although no presumption exists that legal relations are not intended in a family arrangement: Ermogenous v Greek Orthodox Community of S.A. Inc (2002) 209 CLR 95; [2002] HCA 8 at [26]. In my opinion, the evidence does not show that the parties did intend to create legal relations. I note also that the claim was not put on the basis of some proprietary estoppel arising from promises by Robert in return for which care was provided.
2. If I am in error in holding that there was no residential tenancy agreement between Robert and the defendant, any such arrangement was, at best, in the nature of a sublease only. Robert was not the owner of the property. Indeed, on one view, he was a trespasser as far as the estate was concerned. However, even accepting that he had a right to reside in the property and that the arrangement with the defendant amounted to a residential tenancy agreement, s 81(4) of the Residential Tenancies Act applies. Section 81(4)(a) provides: 81 Circumstances of termination of residential tenancies … (4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs - (a) a person having superior title (such as a head landlord) to that of the landlord becomes entitled to possession of the residential premises,…
3. Consequently, any such agreement between Robert and the defendant terminated at the time the plaintiff obtained Letters of Administration on 29 March 2018 or at the latest on 27 April 2018 when the land was transmitted to her.

The second agreement - early 2011

1. The principal difficulty for the defendant in asserting that a residential tenancy agreement came into effect in 2011 immediately after Robert had died, is that there was no "person" who could grant to the defendnat a right of occupation of the premises. Although Letters of Administration in Albert's estate had been taken out by Kenneth Bruce Case on 18 June 1968, Kenneth Bruce Case had died on 1 October 2003. From that date until 29 March 2018 there was no person in the position of a representative of the estate. No one else had been appointed administrator. As at 2010 the property was still registered in the name of Albert Bruce Case. Although under s 61 of the then Wills, Probate and Administration Act 1898 (NSW) the real and personal estate of Albert Bruce Case vested in the Public Trustee, that vesting was only "until probate, or administration". When Kenneth Bruce Case was appointed administrator the estate vested in him although the transmission was never recorded on the title: see in that regard Spark v Neers [1971] 2 NSWLR 1 at 9. Until Letters of Administration were obtained by the present plaintiff on 29 March 2018, the land remained registered in the name of Albert Bruce Case and, seemingly, vested in the estate of Kenneth Bruce Case.
2. In those circumstances there could not be an "agreement" under s 13(1) because there was no person to enter into that agreement with the defendant to grant any right of occupation. Neither "the estate of Albert Bruce Case" nor "the estate of Kenneth Bruce Case" is a legal person: GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973 at [64].
3. There is a further problem for the defendant. The "value" seemingly relied upon to establish the residential tenancy agreement with Robert disappeared on his death. It is nowhere pleaded that it was a term of the arrangement with the "estate" that the defendant would pay half the rates or any rates. The pleading is an assertion only that the defendant did so. The "value" in s 13 must form part of the agreement for the right to occupy the premises. A unilateral decision by one party to undertake some obligation voluntarily is not sufficient to satisfy s 13 unless, at least, that obligation is accepted by the other party.
4. Since there was no representative of the estate in 2011, nothing that transpired at that time resulted in the coming into existence of a residential tenancy agreement.
5. Although not pleaded, Mr Trebeck submitted (as noted earlier) that since all of the beneficiaries of Albert's estate in 2010 "submitted to or adopted or agreed with" the arrangement, the estate was bound. First, no authority was cited for this proposition. Secondly, the evidence does not support it.
6. At the time the defendant moved to the property at the end of 2010, the respective shares of the persons beneficially entitled to the estate of Albert Bruce Case were as follows:
7. Robert Albert Case, 5/9ths;
8. the plaintiff, 2/9ths; and
9. each of Donald Bruce Case, Robert Wayne Case, Sharon Fay Case, Patricia Dianne Jongkryg, Sandra Lynette Case, and Jennifer Marie Case, 3/81sts.
10. The plaintiff denied being at any meeting or agreeing to any arrangement whereby the defendant would pay half the rates in return for being allowed to live in the property. I have already said that I accept that evidence. The defendant gives no evidence of any such arrangement. He says only that he did in fact pay half of the rates. None of Patricia, Sandra or Jennifer gives any evidence about it. Sharon died in 2014, but none of the witnesses say that she was present when any arrangement was made. Robert Wayne Case asserts that the plaintiff said that the defendant could pay half the rates, evidence I have rejected, but says nothing about whether he or anyone else agreed to that arrangement.
11. A further alternative way the matter was put by counsel for the defendant was that the arrangement was made with Robert, who was the major beneficiary of Albert's estate. It is not clear, however, that this arrangement was said to be made by Robert on behalf of the estate, or whether it is a reference to the residential tenancy agreement pleaded between him and the defendant. If it was the former, although Robert was the major beneficiary of his father's estate as a result of devolutions by reason of his mother's will leaving all her share to him, and from the intestacy in the estates of Kenneth Bruce Case and Thelma June Case, Robert had no interest, legal or equitable, in the assets of Albert's estate: Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 at 18-19. He could not enter into an agreement on behalf of the estate.

The third agreement - after the plaintiff became the Administrator

1. The third occasion when it is pleaded that a residential tenancy agreement arose was when the plaintiff was appointed the Administrator of Albert's estate in 2018. The defendant said that he continued to make payment towards half of the rates to the knowledge of the plaintiff, and "the Plaintiff accepted the payments".
2. Most of the cross-examination of the plaintiff, her husband, the defendant and his wife, was taken up with the issue of who paid what amounts towards rates and where they were paid. That evidence, assessed as a whole leads results in the following findings: (a) both the plaintiff and the defendant paid portions of the rates between 2011 and 2018; (b) the amounts paid by the plaintiff and the defendant on each occasion were whatever each was able to afford at the time; (c) some of the rates were also paid by the plaintiff's son Mark; (d) the rates were often in arrears, leading to the issue of summonses by the Council from time to time; (e) the defendant did not prove that he paid half of the rates; (f) at various times between 2011 and 2018 the plaintiff expected the defendant to make a contribution to the rates; (g) the plaintiff rarely took rate notices with her when she paid amounts towards the rates; (h) receipts were not available for all of the amounts paid by either party.
3. The plaintiff in her affidavit said that she paid all of the rates and levies on the land, but later corrected that to say that she paid half and Mark paid half. As the evidence unfolded, especially when documents were obtained from the Council showing when rates were paid and by whom, it became clear that the defendant had paid a proportion of the rates. The plaintiff said that she did not know that the defendant had paid any of the rates. When confronted with documents showing that he had done so, she accepted that he had. I had the impression from the way she answered, that she was finding out for the first time by these questions that the defendant had paid some of the rates.
4. As noted above, the plaintiff did not usually take copies of rate notices when she paid amounts for the rates. It was apparent from her evidence that she had not performed reconciliations which might have demonstrated that someone else was also paying amount for the rates. She was not cross-examined to suggest that she had carried out reconciliations, nor to suggest that she did know the defendant was paying them. I accept that the plaintiff did not know that the defendant was paying the rates.
5. Whilst I accept the plaintiff's evidence that she did not know that the defendant paid any amounts towards the rates, I do not accept her evidence that she did not ask him to do so. While she may not have uttered those words, her husband agreed that from time to time when rate notices arrived they would deliver them to the defendant so that he could pay the rates. The plaintiff said that she would talk to the defendant about the rates. It is difficult to understand what there was to talk about, unless it involved discussion of who would pay them or contribute to them. Nevertheless, although she at least impliedly asked him to do so and probably even expected him to do so, she did not know he had done so. That is likely to be because there appears to have been bad blood between them; the plaintiff's husband said they did not speak for years.
6. Although, as I have indicated, the defendant does not prove that he paid half the rates, I do not think anything turns on that. If the payment of half the rates was part of an agreement in return for which he was given a right of occupation, his failure to pay amounts totalling half would mean only that he was in breach of that agreement. It would not, of itself, mean that there was no agreement or that he had not partly carried out any such obligation.
7. While I accept that, under s 13, a residential tenancy agreement may be implied, the only matters relied upon here are the defendant's occupation of the premises, and the fact that he paid amounts off the rates from time to time.
8. I do not accept that those two factors mean that a residential tenancy agreement should be implied. Not the least reason for that is that nothing changed from what had been occurring since 2011, notwithstanding that the plaintiff had obtained Letters of Administration on 29 March 2018. There is no evidence that the plaintiff gave copies of the rate notices to the defendant after 29 March 2018 or asked the defendant to pay them after that time. At best, for the defendant, is the fact that he did in fact pay $100 for the rates on 20 August 2018. There was no other evidence of amounts paid by the defendant after March 2018. I have already accepted that the plaintiff did not know the defendant was making payments. There was no acceptance by her of what he was in fact doing. For an agreement to be implied, there would need to be some act on the part of the plaintiff from which an acceptance of what the defendant was doing could be inferred.
9. The defendant does not establish that a residential tenancy agreement came into existence at or after 29 March 2018.

Estoppel

1. The estoppel claim is pleaded (at paragraph 50 of the Amended Defence) as being based on acceptance by the plaintiff "as Administrator" of the defendant paying half the rates, and thereby her encouraging the defendant to think that he had a residential tenancy agreement between the defendant and the plaintiff "as Administrator as landlord". Such a pleading must refer to a time after 29 March 2018 because only then did the plaintiff become administrator. There was no evidence that the plaintiff accepted that the defendant paid the rates. On the contrary, I have found that the plaintiff did not know that he had done so.
2. The estoppel claim was put differently in submissions. During oral submissions the following exchange occurred (T 49): TREBECK: When the plaintiff became the legal owner of the land, her title was fed, I've pleaded it in the amended defence as an estoppel, and until she became registered as proprietor, possibly when she became administrator but I think more correctly when she became registered as proprietor, then the assumption of ownership, the fact of registration, the fact of vesting of legal ownership in the administrator fed the estoppel so as to preclude her from denying that there had been an arrangement to which she was clearly party, and everybody knew that there was this arrangement that they would pay the rates. … HIS HONOUR: An estoppel could only exist if there was an arrangement between Donald and/or Robert together and the estate on the other hand, and no arrangement was ever made with the estate to create an estoppel that could be fed when somebody was appointed to represent the estate. TREBECK: The arrangement with the estate was an arrangement between all the relevant beneficiaries of the estate. When they took up possession Robert was, I think, a five ninths beneficiary, the numbers are in the amended defence, all the other people who had an interest in the estate submitted to or adopted or agreed with this arrangement. (emphasis added) (Although counsel referred to the plaintiff's title being fed, I think he meant to suggest that her coming into the title as administrator fed the estoppel.)
3. There are a number of problems with this argument. First, there is no evidence that the plaintiff was a party to the arrangement. Only one of the defendant's witnesses says that the plaintiff suggested that the defendant could pay half the rates, and I have accepted the plaintiff's evidence to the contrary. No-one else says anything about such an agreement. Secondly, the evidence does not, as I have discussed, demonstrate that all the beneficiaries then entitled to a share of Albert's estate "submitted to or adopted or agreed with this arrangement". Thirdly, the arrangement being spoken of is the arrangement made between Robert and the defendant. At best, that results in a residential tenancy agreement with Robert but not the estate. If there was such an agreement s 81(4)(a) of the RTA operates on it from no later than when the plaintiff as administrator demanded possession of the land on 9 November 2018, 7 December 2018 or 15 May 2019.
4. The defendant also relied in oral submissions expressly, and in the pleading impliedly, on unconscionability. It was raised in oral submissions in connection with the assertion that all of the beneficiaries had agreed to the arrangement of the defendant residing on the land in return for payment of the rates. Counsel submitted that it was unconscionable to renege on the deal.
5. Considerations of unconscionability do not arise here because the evidence does not demonstrate any such arrangement. Further, the defendant does not show that anyone representing the estate (or even the plaintiff before she was Administrator) made representations or engaged in behaviour from which they were seeking to withdraw. But in any event, even if they were, no unconscionability is involved in that withdrawal. On the defendant's case, he was entitled to live in the property if he paid some of the rates. He has not paid rates since August 2018. There is nothing unconscionable in that asserted arrangement being brought to an end. Whether the plaintiff is entitled to do so, by reason of whether a residential tenancy exists, has been determined against the defendant, earlier in this judgment. There is no unconscionability that prevents that from occurring.
6. For the above reasons, when the present proceedings were commenced there was no residential tenancy agreement in place. The defendant has no right to remain on the land.
7. I make the following orders: 1. Without disturbing the occupancy of Mark Frimont, judgment for the plaintiff for possession of the land known as 282 Blaxlands Ridge Road, Blaxlands Ridge, New South Wales, being the whole of the land comprised in certificate of title folio identifier Lot 4 in Deposited Plan 751658. 2. Leave to the plaintiff to issue a writ of possession to enforce the judgment of the Court. 3. The defendant is to pay the plaintiff's costs of the proceedings.

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