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[2026] NSWSC 732
Supreme Court of NSW
2026-09-15
Faulkner J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Griffey bht Griffey v Griffey [2026] NSWSC 732
Hearing dates: 14 September 2026
Date of orders: 15 September 2026
Decision date: 15 September 2026
Jurisdiction: Common Law
Before: Faulkner J
Decision: 1. Judgment for the Plaintiff for possession of the land comprised in New South Wales folio identifier 13/238696 being the land situated at and known as XX Penola Lane Auburn Vale 2360.
2. Order that the Plaintiff, after 90 days, have leave to issue a writ of possession.
3. The Defendant pay the Plaintiff’s costs.
Catchwords: REAL PROPERTY – possession of land – registered proprietor – entitled to possession against daughter who has lived with the registered proprietor for many years – registered proprietor goes into aged care – registered proprietor applies to NCAT for order terminating daughter’s residential tenancy – federal jurisdiction because registered proprietor and daughter now residents of different states – NCAT dismisses application for want of jurisdiction – registered proprietor makes same application to Local Court pursuant to s 34B of the Civil and Administrative Tribunal Act 2013 (NSW) – leave granted by Local Court – Local Court finds that there is no residential tenancy agreement – Local Court dismisses application to terminate – issue estoppel – whether registered proprietor precluded from seeking order for possession in these proceedings – no issue estoppel
REAL PROPERTY – possession of land – registered proprietor – daughter claims mother represented to her that she could reside on the property until mother died – mother did not expect daughter to rely, nor would a reasonable person in mother’s position – no reliance – no detriment if mother now permitted to resile from representations – no estoppel
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 34B
Local Court Act 2007 (NSW), s 30
Residential Tenancies Act 2010 (NSW), ss 13, 85
Cases Cited: Blair v Curran (1939) 62 CLR 464; [1939] HCA 23
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58
Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48
Nevenka Dmitrovic v Branka Kleut [2024] NSWSC 1541
St Alder v Waverley Council [2010] NSWCA 22
Category: Principal judgment
Parties: Ruth Griffey bht Andrew Charles Griffey (First Plaintiff)
Terence Norman Griffey (Second Plaintiff)
Elizabeth Anne Griffey (Defendant)
Representation: Counsel:
T Catanzariti (Plaintiffs)
M Hall SC (Defendant)
Solicitors:
Borthwick & Butler (Plaintiffs)
PCR Law & Associates (Defendant)
File Number(s): 2025/00098648
Publication restriction: Nil
These proceedings arise out of a dispute about possession of a property near an inland regional town in New South Wales. The Plaintiff is the registered proprietor of the property. She is 83 years old. The Plaintiff previously lived in the house located on the property but in December 2019 she left, first to live with various of her children, and then into residential care.
There is no dispute that by 23 February 2022, the Plaintiff had been diagnosed with “moderately severe” dementia and has had a moderate level of cognitive impairment. She brings these proceedings by her tutor, who is her son Andrew. Joining Andrew as a Second Plaintiff is another son, Terence. Andrew and Terence together hold an Enduring Power of Attorney which, by virtue of the Plaintiff's medical condition, has become operative.
The Defendant is the daughter of the Plaintiff. The house on the property was the Defendant’s childhood home. She moved out when she was 23 but returned two years later when her father died. Since then she has generally continued to reside in the house on the property.
From about early 2022 the Plaintiff, acting by her attorneys, has sought to have the Defendant leave the property so that it may be sold. The attorneys say that proceeds from the sale are required to fund the Plaintiff's ongoing care, including her residential care as an elderly woman suffering from moderately severe dementia.
The Defendant does not want to leave the property.
By these proceedings, the Plaintiff seeks a judgment for possession and leave to issue a writ of possession. No other relief is sought other than an order that the Defendant pay the Plaintiff's costs. There is no dispute that the Plaintiff, as the registered proprietor, is entitled to possession of the property. The Defendant nonetheless puts forward two arguments as to why no judgment for possession ought to be given in this case.
First, the Defendant says that proceedings brought by the Plaintiff against the Defendant in the Local Court in 2024 related to essentially the same issue as is now sought to be determined in these proceedings. The Local Court proceedings were decided adversely to the Plaintiff. The Defendant says that the Plaintiff is precluded from prosecuting the same issue again.
Secondly, the Defendant says that in July 2019 the Plaintiff made promises to her about her continued occupation of the property, upon which she has relied. She says that she will suffer detriment if the Plaintiff now resiles from the promises and is therefore estopped by asserting her legal right to possession.
Turning to the facts, as stated above the property the subject of these proceedings is located in a rural setting. It has a number of acres which qualifies it for the description of a hobby farm. A pony is kept on the property. Reference is made in the evidence to cattle being agisted on the property although that appears to be more a potential use rather than an actual use.
A house is located on the property. It is connected to the electricity network but not the town water. It relies on rainwater. It uses a septic tank. The state of repair of the house is not so much addressed in the evidence as alluded to.
The Plaintiff and her husband moved into the house around 1977 and made it their family home.
A total of six children are referred to in the evidence. The Plaintiff’s two attorneys are two of four sons to whom I will continue to refer to as Andrew and Terence. The Defendant is one of two daughters, the other being Carolyn. The last two children are Christopher and Peter.
The Defendant was four years old when the family moved to the property. Andrew was fourteen and Terence was twelve. The evidence does not reveal the age of the other children although there is reference to Andrew being the eldest.
There is a certain amount of evidence about the progress of the family since it moved to the property. Not all of it is relevant to the issues which have to be decided in these proceedings. The key facts are as follows. All six children grew up and eventually left home. In the case of the Defendant, at the age of 23 she went to live in the Far North Coast where she stayed until 21 February 1999 or thereabouts. At that point, her father died in sudden and unexpected circumstances. He was 64. The Defendant returned to live at the property to give care, support, and companionship to her mother who was otherwise the only person left living at the property.
In 2000 Carolyn also moved back home to help support the Plaintiff although, in around 2001, she left again when she took a job on the coast. In late 2001 the Defendant found work in the local regional town about a ten to fifteen minutes’ drive from the property. In 2003 the Defendant met Mr Dixon who worked in law enforcement in Sydney. The Defendant commenced a relationship with Mr Dixon and they became engaged in 2005. Shortly afterwards Mr Dixon moved to the regional town near the property. The continuation of that relationship is not directly addressed in the evidence, other than to say that it has been ongoing.
In March 2005 the Defendant sustained a workplace injury due to bullying, harassment and stalking by colleagues. She stopped work and went on workers compensation. She has not worked since. At the same time the Defendant was diagnosed with the first of a number of mental health conditions which include agoraphobia, anxiety and panic attacks.
“1. Terence Griffey is to be responsible in the first instance for making all decisions regarding the day to day running of the business known as Northwest Radiator Repair.
- I require Terence and Andrew Griffey to make any decisions about the sale of the Northwest Radiator Repairs business, the property, 13 Oliver Street, Inverell, that it is located at and my house at [the property] together and to discuss those decisions with their siblings.
- Other than the above, I authorise both Andrew and Terence to act individually.”
The reference in the paragraph to “my house at [the property]” is a reference to the property which is the subject of the claim for possession in these proceedings.
Clause 2 of the Power of Attorney provided as follows:
“My attorneys may exercise the authority conferred by Part 2 of the Powers of Attorney Act 2003 to do anything on my behalf I may lawfully authorise an attorney to do.
I give this power of attorney with the intention that it will continue to be effective if I lack capacity through loss of mental capacity after its execution.
Additional powers (optional)
You may also choose to allow your attorney to use your money and assets to pay for those things listed below.
…
I authorise my attorneys to confer benefits on the following persons to meet their reasonable living expenses as provided by Section 13(2) of the Powers of Attorney Act 2003: [the Defendant]”
At the same time that she executed the Enduring Power of Attorney the Plaintiff executed an Enduring Guardianship in which she named Carolyn and Christopher, who are health care professionals, as her guardians.
On 5 July 2019 a close friend of the family died which caused distress both to the Plaintiff and the Defendant. There is a dispute on the evidence about the immediate aftermath but it is not necessary to address the events other than to say that emotions ran high. At that time an issue was raised as to whether the Plaintiff and Defendant together could "cope" with their current living arrangements and whether the Plaintiff required an aged care assessment.
The Defendant gives the following evidence.
“41 On or about 7 July 2019 I had a conversation with [the Plaintiff] regarding this incident. I said to her: "it appears that my siblings seem to have an issue with me living here. Perhaps it might be best if I move out. I don't want to cause any issues between you and the rest of the family." However when I said this I had nowhere in mind to go if I actually did move out of [the property].
42 [the Plaintiff] then became extremely distressed and a conversation to the following effect took place:
[the Plaintiff]: "Please don't leave. I want you to stay. I love having you here. I don't want you to leave. I will tell them to stop. It has to be a misunderstanding. Please don't leave."
[the Defendant]: "Alright. If you say so."
[the Plaintiff]: “l don't know what I would have done without you and [Mr Dixon]. I know how much you have done, paid for and helped me with, even if they don't. I owe you both for all this."
[the Defendant]: "Mum you don't know me or [Mr Dixon] anything. We help you because we want to. You're my mum. I love you and you have sacrificed so much for your children. You always helped me and now I help you whenever I can.
43 On 9 July 2019 [the Plaintiff] and I had a short conversation as follows:
[the Plaintiff]: "I've been thinking about what we have discussed in relation to the others appearing to have an issue with you living here. Can you make a video on your phone like I have seen you do before? If so, I will make it clear that you have permission to live in the house.
[the Defendant]: “Okay, if that is what you want. I’ll get my mobile phone and we can start recording.”
I believed [the Plaintiff] when she made these representations, particularly after they were recorded. The agreement is recorded by way of two short videos which are exhibited as Exhibit EAG-1 and Exhibit EAG-2 on a USB stick.
44 During the first video [the Plaintiff] states "I give [the Defendant] permission to stay in this house for as long as she needs. And also that [Mr Dixon] can come and stay at the house here with [the Defendant] for until I am gone from this world. Look after me [the Defendant]."
45 However the part about "until I am gone from this world" made [the Plaintiff] laugh. So we decided to do a second recording which included [the Plaintiff] saying: "[the Defendant] can live in my home, for as long as she needs a home. And if [Mr Dixon] wants to come and stay with [the Defendant] that's all okay with me.”
The statements made by the Plaintiff as set out in paragraphs 44 and 45 are the representations relied upon by the Defendant for her estoppel case.
The Plaintiff and the Defendant continued to live at the property for the second half of 2019, but on 10 December 2019 the Plaintiff left the property with Carolyn.
Since that date the Plaintiff has not lived at the property. As I have already mentioned, first she stayed with Carolyn, then with her other children and ultimately, from about December 2022, in residential care at a facility near where Carolyn lives and relatively distant from the property, where the Defendant has continued to reside ever since.
The first reference to the Plaintiff suffering from dementia is in December 2019, about the time she left the property. There is a dispute about when it first became evident but it is not necessary to decide those details. On 14 December 2019 Andrew visited the property and spoke to the Defendant. Andrew, evidently on behalf of some or all of his siblings, sought future access to the property. The purpose for which access was sought is not directly addressed by the evidence but the inference is that Andrew and others wanted to clean up the property and possibly carry out repairs. However, Andrew had not himself been inside the house on the property for some time, other than in the back dining room, and it may be that he himself did not know what needed to be done. Nonetheless, the Defendant was not accepting of Andrew's request for access, although she proposed that there be a general clean-up the following day.
The Defendant's relationships with her siblings, already fraught by December 2019, deteriorated from that point onwards.
The Defendant wrote a letter on 16 December 2019 in which she requested that all future communications be in writing. She made clear that her siblings were to stay away from the property. She said that she felt threatened. I accept that that is how she felt. It is not necessary to decide whether there was any proper basis for her apprehension. It is not relevant to the issues to be decided in these proceedings.
In January 2020 the Defendant had a conversation with the Plaintiff in which the Plaintiff said to the Defendant "please keep my sentimental possessions safe” at the property and “please maintain and keep my pets” at the property. There was a dispute at the hearing as to whether this January conversation occurred in 2019 or in 2020. In her Affidavit dated 24 March 2026, the Defendant said 2019 but in cross-examination she said that that was a mistake and the conversation occurred in 2020. Although it does not much matter, I accept the Defendant’s evidence that the conversation occurred in January 2020 and the Affidavit contains an honest mistake. In the Defendant's mind the conversation was a telephone conversation which occurred when the Plaintiff was living with Carolyn which is consistent with January 2020. The most likely catalyst for the conversation was Andrew's visit to the property on 14 December 2019 and the communications at that time about "cleaning up" the property. No plausible reason has been identified for why such a conversation would have occurred in January 2019 when the Plaintiff and Defendant were both living together at the property as part of an ongoing situation.
“65 By this time I had become very concerned as a result of everything that had occurred in the previous 18 months. I said to mum during this same phone call: "I need to know if I am being thrown out of the house." Mum said: "you are not! You are not being thrown out of my house. Nobody can do that except me. Don't let it worry you anymore, because I will be home shortly."”
At about the same time in 2021 the Defendant was diagnosed with a major cancer condition. She began a number of different treatments, which were difficult, upsetting, debilitating and expensive.
On 23 February 2022, as I have already said, a doctor wrote a letter in which she confirmed that the Plaintiff had been assessed as having moderately severe dementia and that she had a moderate level of cognitive impairment. There is no dispute that from that date the Enduring Power of Attorney has been operative and Andrew and Terence have been the Plaintiff's authorised attorneys.
On 18 March 2022 Andrew wrote a letter to the Defendant about the Power of Attorney and the Defendant's continued occupation of the property, the key terms of which are as follows:
“Dear [the Defendant],
As you were made aware in 2019, Mum had Powers of Attorney (Tery and Andrew) and Powers of Enduring Guardian (Carolyn and Chris) documents drawn up and authorized in January 2019. Copies of both documents have been lodged with both the Attorney's Solicitors and the Inverell Police for future reference.
As you are aware, Mum's health has been deteriorating over several years, and she is now having daily care provided externally. This level of care is on a transitional basis and will soon move to full time care. Currently these costs have been met by varied means, but they are increasing and no longer sustainable . In order to provide for properly for Mum, assets owned by her will have to be disposed by the most expedient means in order to fund that care.
I am certain that you are as concerned as the rest of the family to see that she is well taken care of. Her health and wellbeing place a big responsibility on all of us, and the financial expense is likely to be very high. I am also sure that you are in total agreement that we need to hold Mum's care as a priority.
It is highly probable that the property at [the property] will be the primary asset to supply the substantial financial resource that will be required to fund the level of care for which Mum will require.
You are currently staying at [the property] rent free; and electricity, rates, insurance etc are being provided to you also at no cost. Obviously, this is not sustainable and an alternative needs to be put in place that reduces expenditure of funds available for Mum's care.
Naturally, we are happy for you to stay in the property in the short term, while we undertake maintenance and valuations. I am sure that you will agree, however, that a cost contribution from you while staying on the property during that period would be only fair and reasonable..”
“…Mum's deteriorating health means her need for care is increasing, and the financial cost will only get greater than it currently is.
Unfortunately, the financial cost of the property can no longer be sustained given the circumstances. As you are aware electricity, telephone, rates etc. have been paid by Mum In full over a long period of years and It is not possible for this to continue. Mum has not resided on the property for over 2 years and is no longer capable of living there due to her current health.
We intend putting a rental agreement in place for [the property] through a real estate agent.
Naturally we would prefer you to stay in the property for many reasons, but this must be on remunerated terms to offset the expenses. Obviously the weekly rental to you would be less than what could be earned commercially. I am also aware that you may have other options and choose not to reside in the house.
Please let me know if you are interested in staying al [the property] by the 27th April. Once you have noted your interest I will get back to you with proposed rental costs and associated paperwork.”
The Defendant was very unwell with her cancer treatment when she received these letters. She says that she thought she was being forced out of the property, contrary to what the Plaintiff had previously said to her. She did not think she could afford to pay any rent and no lease agreement was put in place. The Plaintiff continued to be cared for in the homes of one or other of her children in 2022, with increasing outside assistance. In December 2022 the Plaintiff went into residential care. I have already said the facility was near where Carolyn lives, and it is also relevant that it was across the border in southern Queensland. Throughout 2023, the Defendant continued to live at the property. She did not pay rent. As had been done previously, rates, electricity and insurance for the property were paid by the Plaintiff, by this time through her authorised attorneys, Andrew and Terence.
On 25 September 2023, the Plaintiff through her authorised attorneys issued a formal notice purporting to terminate the Defendant's residential tenancy agreement over the property. The termination date was specified to be 8 January 2024. The Defendant did not vacate the property by that date. On 16 January 2024, the Plaintiff commenced proceedings in the New South Wales Civil and Administrative Tribunal by which she sought an order that the Defendant's residential tenancy agreement be terminated under s 85 of the Residential Tenancies Act 2010 (NSW). As one of those awkward legacies of federation, the Tribunal lacked jurisdiction to hear the Plaintiff's application because by this time the Plaintiff was resident in Queensland and the Defendant was resident in New South Wales. The Plaintiff's claim therefore required an exercise of federal jurisdiction, which the Tribunal lacked.
On 28 March 2024, the Plaintiff commenced proceedings in the New South Wales Local Court, by which she sought leave under s 34B of the Civil and Administrative Tribunal Act 2013 (NSW) to have her claim determined by that Court. The substantive relief sought in the Local Court Summons was:
"An order pursuant to section 85 of the Residential Tenancies Act 2010 (2010) terminating the residential tenancy agreement between the plaintiff and the defendant in respect to the premises known as [property]."
85 Termination of periodic agreement—no grounds required to be given
(1) A landlord may, at any time, give a termination notice for a periodic agreement.
(2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.
…
(3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
(4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.
“1. Is there or has there ever been a residential tenancy agreement in place between [the Plaintiff] and [the Defendant]?
2. If so, is this a long term residential tenancy agreement, being an agreement that has been in place for at least 20 years?
3. If there is a residential tenancy agreement in place between [the Plaintiff] and [the Defendant], has a valid termination notice been served on [the Defendant]?
4. If there is a residential tenancy agreement in place between [the Plaintiff] and [the Defendant], and there has been valid service of a termination notice, should the court make an order terminating this agreement and ordering that [the Defendant] give vacant possession to [the Plaintiff] via her attorneys?”
“Those specific provisions were provided in the power of attorney entered into by [the Plaintiff] when she had legal capacity and knowing that her daughter, 25 [the Defendant] was living at [the property] at the time and with her consent. IN MY VIEW, THESE PROVISIONS EXHIBIT A CLEAR INTENTION BY [the Plaintiff] TO CONTINUE TO PROVIDE BENEFITS TO HER DAUGHTER, WHICH WOULD INCLUDE PERMITTING HER DAUGHTER TO LIVE RENT FREE WITHOUT CONDITIONS, INCLUDING WITHOUT CONDITION TO PROVIDE ANY VALUE TO [the Plaintiff] TO REMAIN LIVING AT [the property], A PLACE THAT HAD BEEN HER HOME WITH HER MOTHER ON AND OFF FOR OVER 20 YEARS.
I also note that there is evidence before the Court that [the Defendant] has some serious health concerns, including having been diagnosed with cancer, agoraphobia and experiences panic attacks.
CONSIDERING ALL OF THIS EVIDENCE AND THE APPLICABLE LAW, I FIND NO RESIDENTIAL TENANCY AGREEMENT IS IN PLACE BETWEEN [the Plaintiff] AND [the Defendant] IN RELATION TO THE PERIOD FROM 2019 TO PRESENT, IN THAT THERE IS NO GRANT BY [the Plaintiff] OF A RIGHT OF OCCUPATION TO [the Defendant] FOR VALUE FOR THE PURPOSES OF [the Defendant] USING THE PROPERTY AS A RESIDENCE. RATHER, I FIND THAT [the Plaintiff] GRANTED AN UNCONDITIONAL RIGHT TO [the Defendant] TO LIVE AT [the property] WITHOUT ANY REQUIREMENT THAT [the Defendant] PROVIDE ANY VALUE IN RETURN WHICH IS IN ACCORDANCE WITH HER INTENTION TO PROVIDE SUPPORT FOR HER DAUGHTER.”
PEDLOW: “Your Honour, may I confirm that you have ruled that there is no residential tenancy?”
HER HONOUR: “No residential tenancy.”
PEDLOW: “May I confirm that you have ruled that she is not a trespasser?”
HER HONOUR: “I have not ruled that she is in trespass because I have found that there is an intention, especially while her mother had capacity and that her mother has exhibited a continuing intention in the enduring power of attorney to provide and confer benefits on her daughter, which I find would include the provision of accommodation. I DO NOT FIND THAT SHE IS TRESPASSING ON THE PROPERTY.”
Mr Pedlow was the legal representative for the Plaintiff.
Absent a residential tenancy agreement, the Local Court did not need to decide whether it ought to be terminated following the Notice dated 25 September 2023. The Plaintiff’s Local Court proceedings were dismissed. There has been no appeal nor any application for leave to appeal from the Local Court’s decision.
Undeterred, on 8 November 2024, the Plaintiff by her authorised attorneys sent the Defendant a demand for possession of the property. The Notice included the following statement:
“You are hereby required to vacate the premises at [the property] within 14 days of the date of this letter and provide vacant possession”
“To the extent that you or anyone residing with you at the property located at [the property] had a licence granted by [the Plaintiff] to occupy the property, please be advised that the licence is terminated. You are required to vacate the property within 30 days from the date of this letter.
Should you fail to vacate, we are instructed to initiate proceedings in the Supreme Court of NSW to seek possession of the property, and we hereby place you on notice regarding potential costs.
The Defendant has not vacated the property.
The Plaintiff commenced these proceedings on 13 March 2025 by filing a Statement of Claim. It was subsequently amended.
The Plaintiff’s claim is simple. She asserts her right as registered proprietor of the property to possession, about which there is no dispute. The only relief sought by the Plaintiff is an order for possession and leave to issue a writ of possession. The real issues in the proceedings are identified by the Defendant's Defence and by the Cross-Claim which she filed on 23 February 2026.
In paragraph 7 of the Defence, the facts of the Local Court proceedings are alleged, together with the contention that the Plaintiff is “now estopped from bringing these proceedings as they are an abuse of process, because they breach the principle of finality in litigation”. As argued at the hearing, the principle said to arise from that pleading was variously described as res judicata and issue estoppel.
In paragraphs 14 to 21 of the Cross-Claim, the Defendant alleges:
“14 On 9 July 2019, [the Plaintiff] made the following representations to [the Defendant] (the representations):
a. [the Defendant] would not be removed from [the property] at the time of the representation or at any time in the future by [the Plaintiff] or any of her siblings; and
b. [the Defendant] could live at [the property] for the remainder of [the Plaintiff]'s life.
Particulars
The representations were oral and were recorded on video.
15 In the premises of paragraphs [9] – [14], and in reliance on the representations, [the Defendant]:
a. Believed the representations were true;
b. Agreed to the request; and
c. Remained living at [the property] (the agreement).
16 On or about 19 January 2019, [the Plaintiff] asked [the Defendant] to (the maintenance request):
a. Keep [the Plaintiff]'s sentimental possessions safe at [the property] in the event [the Defendant] left the property; and
b. Maintain and keep [the Plaintiff] 's pets at [the property] in the event [the Defendant] left the property.
17 By reason of the representations and the agreement, [the Defendant] agreed to the maintenance request (the maintenance agreement).
18 On or about December 2019, [the Plaintiff] ceased living at [the property].
19 [the Defendant] remains in occupation of [the property].
20 [the Defendant] retains possession of [the Plaintiff]'s sentimental possessions and has maintained [the Plaintiff] 's pets.
21 By reason of [the Defendant]'s reliance on the representations, the agreement, and the maintenance agreement, she will suffer detriment and harm if [the Plaintiff] is permitted to deny the agreement.”
“Declaration that [the Defendant] has a right to reside at [the property] Auburn Vale NSW at will for the life of [the Plaintiff].”
“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”
The parties agree that the Local Court found that there is no residential tenancy agreement between the Plaintiff and the Defendant for the purposes of the Residential Tenancies Act 2010. Upon that finding, there is no dispute that the Plaintiff's proceedings in the Local Court had to be dismissed because she sought no relief other than the exercise of the Tribunal’s (or in this case the Local Court’s) power to terminate a residential tenancy agreement under s 85.
Beyond that, the parties part company. The Defendant submits that a finding by the Local Court which was "a necessary step" to the conclusion that there is no residential tenancy agreement was that the Plaintiff had granted an unconditional right to the Defendant to live at the property without any requirement that the Defendant provide any value in return. The Defendant submits that the estoppel extends to the necessary step. She also points out that the Local Court said in negative terms that it had not found that the Defendant was a trespasser because of the Plaintiff's “continuing intention" that the Defendant's accommodation be provided for.
The Plaintiff submits that for its ultimate conclusion, the Local Court was required to find no more than what was not the position. Once it concluded that there was no residential tenancy agreement, it was not required to make a positive finding about what was the position. The finding that the Plaintiff had granted an unconditional occupation right to the Defendant was not a necessary step.
The parties’ respective submissions on equitable estoppel are addressed below.
The conclusion I have reached is that the Plaintiff is not precluded by an issue estoppel from bringing these proceedings.
In order to understand why that is so, something further needs to be said about the jurisdiction of the Local Court. In civil proceedings, the jurisdiction of the Local Court is conferred by s 30 of the Local Court Act 2007 (NSW). Of the specified heads of jurisdiction, the only one of potential relevance to the Plaintiff's proceedings in the Local Court is that specified in s 30(1)(b2) which is in the following terms:
30 Conferral of jurisdiction
(1) Subject to this Part, the Court sitting in its General Division has jurisdiction to hear and determine—
…
(b2) substituted proceedings within the meaning of Part 3A of the Civil and Administrative Tribunal Act 2013, so long as the amount of any money claim, or the value of any goods or property, to which the proceedings relate does not exceed the jurisdictional limit of the Court when sitting in that Division…
Part 3A of the Civil and Administrative Tribunal Act 2013 provides for proceedings which would otherwise be brought in the Tribunal to be brought in, relevantly, the Local Court where federal jurisdiction has to the exercised. As already observed, the Plaintiff's Local Court proceedings were brought pursuant to a grant of leave under s 34B which is within Part 3A. It follows that the jurisdiction being exercised by the Local Court ran as far as the jurisdiction of the Tribunal and no further.
“Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. ‘Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon ‘which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter (1), the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.”
In the language of Dixon J, the conclusion that there has been an unconditional grant of a right to occupy was not "legally indispensable" to the Local Court's negative conclusion that there was no residential tenancy agreement, nor to the Local Court's non-finding that the Defendant was a trespasser.
There are two additional reasons why the Plaintiff is not precluded by an issue estoppel from making the claim which she now makes in these proceedings.
First, were the issue estoppel to apply, it would not concern the legal basis for the right to possession asserted by the Plaintiff in these proceedings, about which there is no dispute. The Plaintiff is a registered proprietor of the property. The issue estoppel is said to apply to the Plaintiff's resistance to the Defendant's asserted equitable estoppel as a defence to the Plaintiff's claim. However, the Defendant's right to occupy the property as addressed by the Local Court is not the same as the right which she now asserts in these proceedings. The Defendant does not claim in these proceedings that she has an unconditional right granted to her by the Plaintiff, whether pursuant to the terms of the Enduring Power of Attorney or otherwise. It is not known why the Defendant does not assert that right, but it is nowhere to be found in her pleadings or in her submissions. She instead asserts that the Plaintiff is estopped from denying such a right by virtue of two representations made in July 2019. Those representations and the implications that flow from them were not considered by the Local Court. The adjudication of the Plaintiff’s claims and the Defendant’s Cross-Claim will not call into question any finding made by the Local Court.
The second further reason why the Plaintiff is not precluded from bringing these proceedings is that the finding of the Local Court relied upon by the Defendant was expressed in terms of an "unconditional right". It is unclear what the Local Court meant by "unconditional". It may have been a reference to the absence of any requirement that the Defendant provide value for her right to occupy the property. Alternatively, it may have been a reference to the right being unconditional as to duration, and therefore irrevocable. Both options find some support in the context of the Local Court's reasons read as a whole. On balance, however, I think the former is more likely because the principal issue addressed by the Local Court was the absence of any requirement for the Defendant to provide value. The continuation of the right indefinitely did not receive the same focus. Further, it is one thing for the Defendant to say that her right was intended to continue after the Plaintiff left the property, and even after the Enduring Power of Attorney became operative, and another thing altogether to say that the right was intended to continue come what may. In circumstances where it is common for elderly people to realise their assets in order to fund their ongoing care, the Local Court's decision is not to be taken as finally deciding the circumstances in which the Plaintiff may lawfully demand possession of the property in the future.
“37 First, as with the requirement for representations in estoppels by representation generally, there must be a "clear and unequivocal" promise made by the party estopped (the promisor) to the party who relies upon the promise (the promisee). Of its nature, the clear and unequivocal promise will generally concern some representation about future conduct
38 Secondly, a reasonable person in the promisor's position must have expected or intended (or the promisor actually did expect or intend) that the promisee would rely upon the promise by some action, omission or course of conduct. This is what is meant by references, including throughout this appeal, to the promise being an "encouragement" for the promisee to act.
39 Thirdly, the promisee must have relied upon the promise by acting or omitting to act in the general manner that would have been expected. In order to establish reliance, it is ordinarily necessary for the promisee to show not merely that the promise was one factor taken into account in motivating the promisee's action or omission but that the promisee would not have acted or omitted to act in the absence of the promise. In other words, it must usually be shown that the promisee's reliance "made a difference to [the promisee] taking the course of action or inaction".
40 Fourthly, the consequence of the promisee’s reliance must be that the promisee will suffer detriment if the promise is not fulfilled, in the sense that the promisee will be left in a worse position, as a consequence of reliance upon the promise, than if the promise had not been made. Unlike the recognition of a gift, or the enforcement of a testamentary promise under a valid will, or the enforcement of a contractual promise, it is the existence of detriment arising from reasonable reliance upon an unfulfilled promise that completes the recognition of the estoppel and moulds the remedial response. As this Court has repeatedly held, “[i]t is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise”. Hence, the relief is “moulded accordingly to prevent th[e] detriment”. In cases where the detriment suffered by a plaintiff is “a relatively small, readily quantifiable monetary outlay on the faith of the [defendant’s] assurances” then, apart from interest, the likely equitable relief ordered will be compensation in the amount of the monetary outlay. By contrast, where the detriment suffered “involves life-changing decisions with irreversible consequences of a profoundly personal nature”, the likely equitable relief will be to require fulfilment of the assumption upon which the plaintiff acted, such as by a conveyance of rights, or an assessment of the monetary value of the assumption.”
The two representations relied upon by the Defendant for the first element are set out above. The Plaintiff submits that they lack clarity because they are not identical, specifically in relation to whether the Defendant may stay only until the Plaintiff dies or indefinitely after that. However, I accept the Defendant's submission that there is sufficient clarity in circumstances where the Defendant does not assert an estoppel beyond the denial of a right to reside in the property during the Plaintiff's life.
As for the second element, the Defendant submits that a reasonable person in the Plaintiff's position must have expected or intended that the Defendant would rely on the representation by some act or omission. I accept that submission to the extent that the Defendant submits that the Plaintiff actually intended for the Defendant to remain living at the property and that a reasonable person in the Plaintiff's position would have so intended. The terms of the Enduring Power of Attorney executed by the Plaintiff relatively shortly before the representations were made show that the Plaintiff had a special concern for the care of the Defendant, as would naturally accord with a mother-daughter relationship.
However, I do not consider that the Plaintiff, nor a reasonable person in her position, would have expected or intended the Defendant to do anything to the Defendant's detriment in response to the representations. Nothing was said at the time about any obligation, decision or choice on the part of the Defendant. It was simply a gratuitous grant of permission by the Plaintiff which would also naturally accord with a mother-daughter relationship. There were at other times discussions about pets and sentimental belongings. However, there is nothing in the evidence which connects the two topics, either expressly or by implication. It does not follow from the Plaintiff's request that the Defendant take care of the pets and the sentimental belongings, that the Plaintiff expected or intended that the Defendant would accede to the request because the Plaintiff had given the Defendant permission to live at the property. More probably, the Plaintiff expected the Defendant to be happy to help out, which would also naturally accord with the mother-daughter relationship.
Nor is there any suggestion that the Plaintiff, or a reasonable person in her position, expected the Defendant to refrain from taking up any alternative opportunity in reliance upon the Plaintiff's representations. There is reference in the evidence to the Plaintiff not progressing her personal relationship with Mr Dixon and settling a long running workers' compensation claim about this time, but the evidence of those circumstances falls far short of establishing any connection between the Plaintiff's representations and any choice made by the Defendant, let alone the Plaintiff expecting or intending that the representations would influence the Defendant's choices in relation to those matters.
I make the following orders:
Judgment for the Plaintiff for possession of the land comprised in New South Wales folio identifier 13/238696 being the land situated at and known as XX Penola Lane Auburn Vale 2360.
Order that the Plaintiff, after 90 days, have leave to issue a writ of possession.
The Defendant pay the Plaintiff’s costs.
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Griffey bht Griffey
Griffey
[1939] HCA 23
(1939) 62 CLR 464
(1937) 59 CLR 641
(2024) 281 CLR 484
The Defendant has provided comfort and care for the Plaintiff as she has aged. There is evidence that the Plaintiff's health began to deteriorate in 2017 when the Plaintiff was 74 years old.
In January 2019 the Plaintiff executed an Enduring Power of Attorney by which she appointed Andrew and Terence to be her attorneys. The appointment was stated to commence when a medical practitioner considered that the Plaintiff was unable to manage her affairs and provided a document to that effect. The appointment was joint and several as follows:
As at January 2020 the Plaintiff’s pets comprised a pony said to be 35 years old and four cats, although there were in addition over twenty stray cats to which the Defendant gave her attention. The evidence makes clear that since the Plaintiff left the property the Defendant has looked after the pony and the cats.
When asked about the Plaintiff's sentimental possessions the Defendant said that everything owned by the Plaintiff was sentimental to the Plaintiff, including a piano, organs, dressers, storage boxes, cupboards and antiques. In answering the question, the Defendant was not able to differentiate one thing from another. Nonetheless, I am satisfied that none of the Plaintiff's possessions have been disturbed since the Plaintiff moved out of the house. There has been no occasion for any such disturbance.
Throughout 2020 and 2021 the Plaintiff lived with one or another of her children. The Defendant had some contact with the Plaintiff by telephone. The Defendant says that keeping in contact with her mother was not always easy during this period. One conversation about which the Defendant gave evidence occurred in November 2020. The Defendant gives the following evidence:
The Plaintiff made submissions about a third further reason why she is not precluded by an issue estoppel from bringing her claims in these proceedings which arises from the fact that the jurisdiction of the Local Court expressly excludes proceedings in which "the title to land is in question". Such an exclusion does not naturally extend to a right of occupation of the nature asserted by the Defendant and which, in some circumstances, may be no more than a contractual right. However, without giving the issue further consideration I make no finding that the Plaintiff is not precluded from making her claims in these proceedings because the Local Court lacked the jurisdiction to consider the Defendant’s equitable estoppel defence.
The second element is absent and, for the same reason, so is the third. At its most fundamental level the Defendant has done nothing in response to the representations made by her mother other than to continue to live at the property. She lives there without paying rent and without paying the rates, the electricity or the insurance. Any maintenance of the property which the Defendant has undertaken and about which there is minimal evidence does not rise above that which would ordinarily be expected of a person taking care of the place where they live and for their own benefit. Any such maintenance or care is not capable of constituting detrimental reliance: St Alder v Waverley Council [2010] NSWCA 22 at [17]-[18] (Handley AJA, Allsop P and Beazley JA agreeing); Nevenka Dmitrovic v Branka Kleut [2024] NSWSC 1541 at [347] (McGrath J).
Nor has it been shown that the Defendant will suffer any detriment is she is now required to leave the property. Her circumstances will not be as good as if she were able to stay, but that is not a change as a result of the Plaintiff resiling from the representations in the relevant sense, as explained by Dixon J in Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58 at 672-673.
It follows that for these multiple reasons the Defendant has not made out her case for equitable estoppel.
No question arises as to whether there are other means available to the Plaintiff to fund her aged care. There is no dispute that the Plaintiff's authorised attorneys consider that they acting in the Plaintiff's best interests and there is nothing to suggest that they are wrong.
For these reasons I will grant the relief sought by the Plaintiffs.