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Representation: Counsel:
A Green (Plaintiff)
Self-Represented (Defendants)
Solicitors:
Tonkin Drysdale Partners (Plaintiff)
Self-Represented (Defendants)

File Number(s): 2026/182657

Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: By Notice of Motion filed on 7 May 2026, the plaintiffs seek an order for summary judgment for possession of a property at Empire Bay of which they are the registered proprietors. The four defendants are occupants of the property who, as I will amplify during these reasons, claim to have an interest in the property. They do not contest the plaintiffs’ title but assert a superior right to possession.

2. As I have explained in other interlocutory judgments, the matter has come on with a great degree of urgency in the Common Law Division because the plaintiffs have entered into a contract for the sale of the land dated 23 April 2026. It was a term of the contract that it be completed on 7 May 2026. Time was not made of the essence, but given the date for completion, the matter came before Yehia J on 6 May 2026 and then before me on 7 May 2026. On that day the plaintiffs were able to negotiate an extension of time with the purchasers and the contract is now to be completed on 21 May 2026. I understand that the purchaser is not prepared to countenance any further extensions.

3. On 6 May 2026 I made orders for the exchange of evidence and for the matter to come on for hearing before me today. When the matter was called this morning, the defendants sought an adjournment which had been adumbrated yesterday afternoon which for reasons I gave this morning, I refused. I then proceeded to hear the matter, allowing the defendants to put a body of material before me which, contrary to my directions, had not been served upon the plaintiffs. Much of it was not in admissible form. I received the material, however, as an indication of matters in respect of which evidence would be led at a final hearing if the plaintiffs’ application for summary judgment was unsuccessful.

4. The first and second defendants are the sons and stepsons respectively of the second plaintiff and the first plaintiff. The third and fourth defendants are their respective partners. By agreement among themselves, the defendants appointed the first defendant, Mr Silas Asiago, to be their spokesman, as it were, and to present the case on behalf of all of them. The plaintiffs were represented by Ms Green, of counsel. The family relationships are not strictly relevant to the issues to be determined, but I will touch upon the aspects of them which are in particular relied upon by the defendants to assert an interest in the property.

5. I should also say that I accept the formulation of the question put forward by Ms Green that given that there is no issue that the plaintiffs are the registered proprietors, the question needs to be formulated by me in terms of whether the material before me supports the contention of the defendants that at a final hearing there will be evidence which, if accepted, is capable of demonstrating in the defendants a superior right to possession to that of the plaintiffs. I should say, however, I have not lost sight of the consideration that the onus of establishing an entitlement to summary judgment at all times lies upon the plaintiffs and I will refer in a moment to the high standard to which I must be satisfied before that entitlement is established.

6. Having said that, there is no doubt that the defendants are subject to an evidential onus of introducing the material which demonstrates that there is a triable issue about their contention which, if accepted at a trial, would produce an outcome favourable to them.

7. There are many precedents of high authority dealing with the nature of the test that the Court has to apply when a party applies for a summary judgment or dismissal. They were not really in contention before me and it is sufficient for me to refer to the decision of the High Court of Australia in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41. In their joint judgment, Gaudron, McHugh, Gummow and Hayne JJ said (at [57]):

“It is, of course, well-accepted that a Court whose jurisdiction is regularly invoked in respect of a local defendant...should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.” (Citations omitted).

8. Accordingly, the question for me is whether the plaintiffs have established to that requisite high degree of certainty that their claim as registered proprietors to possession of the land defeats the asserted interest of the defendants.

9. Although in a case such as the present it is not necessary to go beyond the land titles register, I consider that given the nature of the familial relationships involved, it is appropriate to say something about the circumstances of the acquisition of the plaintiff’s title to the property. These facts were not in issue before me. They are dealt with in a number of the affidavits of the first plaintiff, but most fulsomely in her affidavit sworn on 7 May 2026 at paragraphs 8 to 15 and by reference to documents attached thereto.

10. It is important to record that the first plaintiff’s mother, Mrs Janice Harris, features in this, as she does in the material relied upon by the defendants to establish what they say is the triable issue in the matter. I emphasise that “Janice”, as I will refer to her without any intended disrespect, is not a party to these proceedings. However, from the narrative relayed in the paragraphs I have referred to I am satisfied that in a discussion amongst Janice and the first and second plaintiffs which took place in or about June 2024 it was agreed that “in lieu of inheritance” under Janice’s Will, Janice would transfer the subject property to the first and second plaintiffs in exchange for the transfer to her of the interest of the first plaintiff in a property at Narromine of which Janice and the first plaintiff were, I infer, joint tenants. I am satisfied that there is no dispute that the transfer of the title to the property to the plaintiffs as registered proprietors was made accordingly for valuable consideration consisting of the transfer of the property at Narromine and the plaintiffs’ foregoing their natural expectation of benefitting under Janice’s Will after her death. The exchange of titles is confirmed by annexures B and C to the first plaintiff’s affidavit. B is the copy of the transfer of title to the subject property and C is the transfer of the first plaintiff’s interest in the Narromine property to Janice; in actuality, the transfer of their indivisible joint tenancy to Janice alone in fee simple. The transfers were not simultaneous, and each was expressed to be in consideration of the payment of one dollar. It is also the case, as is confirmed by annexure A, that in furtherance of giving effect to the arrangements made, Janice paid the amount of stamp duty due on the transactions to the solicitors then acting on 14 June 2024.

11. It is also apparent to me from the material before me that at the time those transfers took place the defendants and their children were residing at the subject property with Janice and perhaps from time to time with the first and second plaintiffs.

12. Although the evidence is not clear, it is also apparent to me that Janice has had significant health problems, and she is not currently residing at the property. From what the first defendant told me, he and his brother and their partners hope that she will be well enough to return to the subject property soon as they understood that to be her desire. But that seems unlikely, not only because of the proposed sale, but also because her affairs are apparently now in the hands of the NSW Trustee and Guardian. I hasten to add that the evidence about that before me is slight.

13. I am also satisfied from the affidavit evidence read in the plaintiffs’ case that it is their position, if I can put it that way, that the defendants have been residing at the property under a licence, perhaps on the condition that they make financial contribution to the expenses of running the household, although it is the plaintiffs’ case that contribution has not always been forthcoming. I need not make any decision about that today.

14. I am satisfied that since January of this year on a number of occasions the plaintiffs have informed the defendants of their intention to sell and have given them written notice to vacate the premises. I conclude that those notices were sufficient to bring a licence to an end (if that is the nature of the legal relationship between the plaintiffs and the defendants concerning the latter’s occupation of the premises). I should say that I am satisfied that notice to vacate was first given on or about 17 January 2026 and that a period of one month was allowed for occupation and possession to be surrendered.

15. Without more, I would be satisfied on those facts to the high degree of certainty required that the plaintiffs had made a case for an order for summary judgment for possession of the property under rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

16. The proceedings were initially commenced by summons due to the urgency of the application and amongst the orders made by me on 6 May 2026 was a direction that the plaintiffs proceed by Statement of Claim which was filed on 7 May 2026. Ms Green acknowledges that there is a question about whether the statement of claim was served under the cover of form 93 pursuant to UCPR 6.8A and I am satisfied that if I order summary judgment that it is appropriate in the interests of regularity to make an order dispensing with those requirements. I would do that on the basis that I am satisfied, and there seems to be no issue whatsoever about it, that the defendants have had appropriate notice of the proceedings for possession. Indeed, they are the defendants who have been served, and they are not in the position of non-party occupants such as tenants under a residential tenancy agreement who are strangers to the litigation. I should record here that it is common ground between the parties that the plaintiffs do not occupy the premises under a residential tenancy agreement. This was acknowledged by Mr Silas Asiago and is the subject of an email he sent to my chambers on 6 May 2026, a print-out of which has been admitted on the hearing of the application as exhibit A.

17. I turn then to the nature of the asserted interest of the defendants. Although self-represented, the defendants, and I infer in particular the first defendant who has had the carriage of the matter, if I may use that expression, on behalf of his family, have applied themselves to expressing their asserted rights in a careful manner. The interest is asserted to be equitable and it has been categorised with a degree of elaboration, referring to a constructive trust, resulting trust, proprietary estoppel, equitable estoppel, unconscionable conduct, and testamentary intention and family arrangement principles. I am satisfied from the material placed before me that the only possible question that may arise on the material is best categorised as a claim of proprietary estoppel by encouragement.

18. It is unnecessary for me to elaborate the applicable law at any length. It is sufficient for me to refer to the comparatively recent decision of the High Court of Australia in Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48 (“Kramer v Stone”). At [36]-[40] of their judgment, the majority of the Court, consisting of Gageler CJ, Gordon, Edelman and Beech-Jones JJ set out the requirements of proprietary estoppel in the following terms:

“[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.” (Citations omitted).

19. The case that the defendants seek to make out has been summarised in a document I received as a written submission entitled “Extra Note For Review”. Although there is an assertion in that document that the transfer of the property to the plaintiffs was as trustees, frankly, there was nothing in the objective evidence to which I have referred which contains any suggestion that that is so and the proffering of consideration by the plaintiffs to my mind is conclusively against that conclusion. This was not a case of a declaration of trust by the former registered proprietor, Janice, this was a case of an exchange of interests for value as I have already found to that high degree of certainty. In any event, the case is otherwise formulated that Janice consistently communicated that:

“The property had been acquired with the intention of housing the wider family collectively; the defendants were welcome to reside there permanently; the property was intended to preserve family unity and continuity; and the arrangement was not conditional upon short-term occupation. The defendants therefore deny that they are mere licensees without equitable interest. The defendants say that their continued occupation arises from: The express testamentary and familial intentions of Janice Harris; reliance upon repeated assurances made by Janice Harris; their substantial contributions towards care giving, renovations, maintenance and household support; the understanding that the property would remain a multi-generational family residence; and the expectation created by Janice Harris that the defendants and their children would benefit from the property as part of a broader family arrangement.”

20. The most significant material supporting that formulation of a case is the unsworn, draft affidavit of Ms Jane Muranja, Mr Silas Asiago’s partner. I admitted that material on the basis that it gave a firm indication of the nature of the evidence that would be led from her at a final hearing. But before going on I need to emphasise that there was nothing in the formulation of the case for the defendants that asserts any representation, promise or encouragement on the part of the plaintiffs and, as I have said, Janice is not a party to these proceedings. She is certainly not joined as a cross-defendant.

21. The expected evidence that would be given by Ms Muranja is that the defendants were part of the Harris extended family and after Ms Muranja formed a relationship with Mr Silas Asiago, they visited the home of Janice and the first plaintiff at an address in Woy Woy where the latter were then living. In January 2022 Janice requested that the defendants’ family move in to the Woy Woy address to assist her with renovations in contemplation of her intended sale of that property. I interpolate, it may well be, if the matter were to proceed to a final hearing all or most of these facts would be contested. I am proceeding on the basis that this is evidence that would be led on behalf of the defendants which for present purposes should be taken at its highest.

22. It appears that the four defendants moved into the Woy Woy premises and the family all worked together, cleaning, repairing and preparing the home for sale including packing the belongings and carrying out maintenance works. During this time Janice repeatedly said words to the effect that she wanted a family home where she could remain as she got older and that she did not want to go into a nursing home.

23. The defendants apparently left the Woy Woy address to relocate to Queensland in March 2022. At Janice’s request they returned to the Central Coast in March 2023 because Janice missed spending time with her step-grandchildren. By then Janice had acquired the subject Empire Bay property. The families formed a close bond with Janice who was involved with the step-grandchildren’s activities and in the give and take of family life, if I can put it that way, Ms Muranja says that she assisted Janice in many different ways including taking her to various appointments: “At one stage [Janice] gifted [Ms Muranja] a Mazda 3 motor vehicle and expressed gratitude for the assistance and support [Ms Muranja] had provided to her”.

24. Ms Muranja says that during the time that the defendants’ families lived at the subject property, they made contributions towards household bills, utilities, household maintenance, garden maintenance, and general upkeep of the property.

25. Janice eventually suffered a stroke and was hospitalised. The defendant families visited her and supported her in hospital. Ms Muranja provided assistance and care in the activities of daily living when Janice came out of hospital. I infer from what she has said that the Empire Bay address become a hub for the extended family during times of celebration during Janice’s time there.

26. In the draft affidavit, Ms Muranja goes on to speak about the breakdown of the relationship between the defendants and the plaintiffs over the plaintiffs seeking to recover possession, and to have the defendants vacate the property. It is unnecessary for me to detail that here.

27. Leaving aside matters of argument and formulation of the case, Ms Muranja’s account is the highest the expected evidence goes to demonstrate that the defendants have acquired an equitable interest in the land. I should say that when Mr Asiago was addressing me, there was some discussion about whether renovations had been carried out by the defendants at the subject property at Janice’s request and it seemed that the resolution of that discussion was really in that the renovations had been carried out at the Woy Woy property, as Ms Muranja’s draft statement seems to indicate.

28. It is quite clear that when the subject property at Empire Bay was being assessed for sale that it was in a relatively run down condition. From the affidavit of the first plaintiff sworn on 4 May 2026 (page 32, forming part of annexure G) it is clear that the market appraisal confirms this impression. In a document entitled Instructions to Adjust the Agent’s Estimated Sale Price there is a section entitled Vendor Motivation where the agent records:

“The vendor is motivated to sell, and the property reflects a degree of deferred maintenance. While the home has solid underlying potential, it has been allowed to run down over time and would benefit from a comprehensive renovation. Key improvements would include fresh interior and exterior paint, new flooring or carpet throughout, an up-dated kitchen, and general modernisation across the property. With all the work required, the asking price reflects the condition of the home and presents a fair opportunity for buyers to add value.”

29. I am satisfied from the material before me that there is no reason to suppose that there would be evidence at any final hearing of substantial renovations carried out by the defendants may I add, let alone in reliance upon any promise made by the plaintiffs.

30. Returning then to the principles the subject of Kramer v Stone I am satisfied to a high degree of certainty that at a final hearing the plaintiffs would, to the extent to which the onus would be on them at that stage, be successful because the defendants would be unable to discharge their onus of establishing a superior right to possession by dint of the doctrine of proprietary estoppel by encouragement.

31. As I have said the inquiry would fail at the first hurdle. There is no evidence in any of the material of any representation or promise or encouragement by the plaintiffs at all, let alone one on which the defendants relied to their detriment. It follows from that that each of the subsequent elements would not arise.

32. It seems to me that there may well be difficulties at other hurdles given that the description by Ms Muranja of the contributions made by the defendants does not go beyond, in my judgment, what one would expect of persons occupying the premises under a family arrangement of the type that was evidently in place when the defendants took up occupation at Janice’s request and while they continued to reside there until notice to vacate was given.

33. In these circumstances and for these reasons I am satisfied that the plaintiff, as I have said, has made out a case to the high standard required for summary judgment.

34. Consequently, I make the following orders:

35. Pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (“UCPR”), judgment for the plaintiffs for possession of the land situated at XX XXXX Road, Empire Bay NSW 2256 being the whole of the land and dwelling in Lot X DP XXXXX (“Property”).

36. An order dispensing with the requirement for the service of UCPR Form 93 pursuant to UCPR rule 6.8A by the plaintiffs upon the defendants pursuant to s 14 of the Civil Procedure Act 2005 (“CPA”).

37. Leave to issue a writ for the possession of the Property forthwith.

38. The defendants are to pay the plaintiffs’ costs.

(See transcript 14 May 2026 for argument as to plaintiffs’ application for indemnity costs.)

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