May v Walker

EVIDENCE

1. The plaintiffs rely on the following evidence: 1. the affidavit of Abby May sworn 14 August 2023 and the exhibits to that affidavit; and 2. the affidavit of Dean William Gibson sworn 15 December 2023.
2. The defendant relies on the following evidence: 1. the affidavit of Neil Robert Walker sworn 13 December 2023 and the exhibit to that affidavit; and 2. letter dated 14 December 2023 from Dentons to Rostron Carlyle Rojas Lawyers.
3. Mr M Southwick appeared for the plaintiffs, instructed by Rostron Carlyle Rojas Lawyers. Mr J Pokoney appeared for the defendant, instructed by Dentons.

EXISTING RESTRAINTS AND DEFENDANT'S PROPOSED CHANGES

1. The relevant parts of the orders made by Robb J on 17 August 2023 (17 August 2023 orders) are as follows: 1. Notes the agreement between the plaintiffs and the defendant for the lease by the defendant to the plaintiffs of 611 Alpine Way Crackenback, being the land in Lot 79/576686 (the Property) for the period from 6 June 2023 to 6 June 2053, a copy of which is Exhibit AM-88 to the affidavit of Abby May affirmed 14 August 2023 (the Lease). 2. Notes that by email dated 21 July 2023 the defendant gave to the plaintiffs a notice to vacate requiring that they deliver up vacant possession of the Property by no later than 5 PM on 5 August 2023. 3. Notes that the plaintiffs deny that the defendant was entitled to serve the notice to vacate or that the notice to vacate has terminated the Lease. 4. Notes that on 9 August 2023 an officer of the New South Wales Police has purported to issue provisional apprehended domestic violence orders under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (PADVOs) against each of the plaintiffs for the protection of the defendant which prohibit each of the plaintiffs from going within 500 m of any place where the defendant lives, or any place where he works, or the Property. 5. Notes from the grounds of the application appended to each PADVO that the defendant informed the Police that he had agreed with the plaintiffs that they could live at the Property rent free in exchange for work done on the Property by the second plaintiff and failed to inform the Police of the existence of the Lease or that the defendant had received from the plaintiffs a percentage of the booking fees for the guest house on the Property in accordance with the Lease. 6. Notes that the PADVO issued against each of the plaintiffs is returnable before Cooma Local Court on Wednesday, 23 August 2023 at 9:30 AM so that the restrictions imposed on the plaintiffs will continue to apply until at least that time. 7. Notes that the plaintiffs by their counsel give to the Court the usual undertaking as to damages. 8. Orders that until the determination of these proceedings or further order the defendant, by himself his servants and agents, be restrained from excluding the plaintiffs from possession of the Property on the terms of the Lease or interfering with the plaintiffs' quiet enjoyment of so much of the Property as is required for the operation by the plaintiffs of the guest house on the Property, including without limitation by locking any gates necessary to enable guests who have a booking for the guest house to gain convenient access to the Property at will in accordance with their booking agreement. 9. Orders that until the determination of these proceedings or further order the defendant, by himself his servants and agents, be restrained from preventing or in any way interfering with the ability of the plaintiffs to operate the guest house on the Property on an efficient commercial basis. 10. [otiose] 11. [otiose] 12. Orders that until the determination of these proceedings or further order the defendant, by himself his servants and agents, be restrained from giving any notice of termination of the Lease or taking any other step to eject the plaintiffs from the Property without the prior leave of the Court granted on the application by the defendant on seven days' notice to the plaintiffs. 13. Orders that until the determination of these proceedings or further order the defendant, by himself his servants and agents, be restrained from committing any act of a threatening or intimidating nature against the plaintiffs or either of them. 14. Notes that the ability of the plaintiffs to enjoy the benefits of these orders will be restricted by the terms of the PADVOs until they are discharged, but the plaintiffs shall be entitled to enjoy those benefits fully to the extent that they are not so restricted. 15. Orders the plaintiffs to serve the defendant with a copy of these orders in the manner permitted by order 3 made by the Court on 14 August 2023 by 5 PM on 17 August 2023, with the plaintiffs having leave to serve the orders on the defendant by such additional means as they consider may be effective to bring the orders to the notice of the defendant. 16. Orders the plaintiff [sic] to serve the New South Wales Police with a copy of these orders marked to the attention of Senior Police Officer Peter Mackay of the Cooma Police Station, including by appropriate electronic means, by 5 PM on 17 August 2023. 17. Stands the proceedings over to 25 August 2023 at 2 PM before the Equity Duty Judge for directions as to the future conduct of the proceedings or such other order as to the Equity Duty Judge may think fit. 18. Grants liberty to apply to the parties on 2 days' notice to the Equity Duty Judge, including in respect of any application to vary these orders. 19. Reserve costs.
2. The relief that is sought by the defendant on the application before me is as follows:
3. The Court ORDERS: 1. The orders made on 17 August 2023 be varied so that: 1. the notation at paragraph 1 is deleted; 2. the notation at paragraph 5 is deleted; and 3. the injunctions in order 8, 9, 10, 11, 12 and 13 are discharged forthwith. 1. The proceedings be expedited. 2. The proceedings be listed on… February 2024 for directions before the Expedition List Judge. 3. The Court NOTES: 4. Until the determination of these proceedings or further order of the Court, the defendant undertakes not to sell, dispose of, or enter into any leases in respect of the whole of the property located and known as 611 Alpine Way, Crackenback (Lot 79 in Deposited Plan 756686). 5. The application made by Sergeant Tyrone Stacey of the NSW Police and the Local Court of NSW, Cooma Registry, being proceedings number 2023/00253232 and 2023/00253234, against each of the plaintiffs seeking orders under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) are listed before the Local Court of NSW on 20 December 2023. These proceedings do not prevent the Local Court of NSW exercising any powers conferred upon it by the Crimes (Domestic and Personal Violence) Act 2007 (NSW) in respect of those proceedings.

PROCEDURAL MATTERS

1. After the 17 August 2023 orders were made, on 25 August 2023 the proceedings came back before Robb J as Duty Judge at which time there was no appearance by the defendant. As a result, the proceedings were stood over to the Equity Registrar's List on 11 September 2023 and the plaintiffs were directed to notify the defendant.
2. On 11 September 2023, the proceedings came before Registrar Walton, when there was again no appearance by the defendant. Registrar Walton stood over the proceedings to 9 October 2023 and the plaintiffs were directed to notify the defendant.
3. There does not appear to have been any hearing held on 9 October 2023. Instead, on 13 October 2023, the proceedings were listed before Slattery J at which time there was an appearance on behalf of the plaintiffs and the defendant. By consent, the plaintiffs were directed to file and serve their statement of claim by 6 November 2023, the defendant was directed to file and serve his defence by 1 December 2023, and the proceedings were adjourned to the Real Property List on 8 December 2023.
4. On 7 December 2023, Peden J made orders by consent in chambers directing the plaintiffs to file and serve their statement of claim by 8 December 2023, the defendant to file and serve his defence by 12 January 2024, the proceedings to have a court annexed mediation to take place on or before 23 February 2024, and the proceedings adjourned to the Real Property List on 1 March 2024.
5. As I have stated above, on 8 December 2023, the plaintiffs filed the statement of claim.
6. On 15 December 2023, the proceedings came before me on the application of the defendant.
7. The defendant's failure to appear in early stages of the proceedings was explained by him to be due to his deteriorating health issues, including his admission to hospital for the insertion of a pacemaker in August 2023.

SALIENT FACTS

1. As with most cases that end up before a Duty Judge of this court for an urgent hearing with parties seeking orders and the discharge of those orders in the nature of those in these proceedings, there has been a very unfortunate history of significant and escalating disputation between them.
2. On an interlocutory basis, it is not possible for me to resolve contested facts and I have not done so for the purposes of determining this application. I have focused on the events relevant to the plaintiffs' occupation of the Property. The factual matters set out below are those which mostly do not appear to be the subject of serious contest between the parties, but where there appears to be a contested fact, I have simply recorded the fact as one asserted by the identified party.
3. Although I have principally relied on documents in setting out these facts, the genuineness of some of those documents is seriously in issue between the parties. I have noted that matter when I have made reference to those documents.
4. Where I have quoted the content of documents, I have left the considerable number of spelling, syntax and grammatical errors in the exact form in which they were written.

The Property

1. The defendant is the registered proprietor of the Property, which is called Winter Park, having purchased it in 1972 (over 50 years ago). The Property is located approximately 10 km from Jindabyne on the main road to the Thredbo Ski Resort, which is 10 minutes drive away. Located on the Property is a 6 bedroom, 5 bathroom main home with amenities, a building annexed to the main home with a bed and bathroom but no full kitchen or hot water (known as the "granny flat"), sheds, dams and open land for grazing animals.
2. I note that the defendant maintains that the granny flat has no kitchen but the plaintiffs say that it has a kitchenette.

The defendant

1. The defendant is 82 years old and a retired pensioner. He has never married, has no children, and has a 92-year-old sister from Melbourne who visits him with her family. He has serious and chronic health conditions which have deteriorated during 2023, principally being serious cardiovascular issues (including receiving coronary artery bypass grafts in October 2017 and the insertion of a pacemaker in August 2023), diabetes, sleep apnoea and profound deafness (which is alleviated to some extent by the use of hearing aids).

The plaintiffs

1. The first plaintiff, Abby May (previously known as Hoda Maki), is a pastry chef by training but does not currently work in that profession due to a motor vehicle accident in 2018. The second plaintiff, Dean May, says he is a licensed carpenter, but the defendant contests that matter by reference to searches conducted at Service NSW. The plaintiffs have been in a relationship since about 2020.

The defendant's use of the Property as a guest house

1. For approximately 30 years (before the events which led to the plaintiffs residing at the Property), the defendant rented the main home on the Property during the snow season to a limited number of repeat guests (or the friends/families of repeat guests) for short periods, such as a week or a weekend. The defendant did not advertise the Property and during these periods, he did not leave the Property. When there were people renting the main home, the defendant stayed in the granny flat but still accessed the main home to use the bathroom and kitchen.

January-February 2023: dealings between the plaintiffs and the defendant

1. On 20 January 2023, the defendant met the first plaintiff for the very first time at a bus stop when he was returning home on a bus from a medical appointment in Cooma. The defendant says that he offered her accommodation at the Property when she said she was struggling to find accommodation. He says that this then led to the plaintiffs and the defendant meeting that day at the Property at his invitation.
2. The defendant says that he offered the first plaintiff the granny flat to stay for a few weeks but she said it would be unsuitable and that he then offered her a room in the main house for a few weeks until she found something more permanent because during the summer months the main house was often empty. The defendant says that while the second plaintiff, Dean Gibson, was accompanying the first plaintiff around the Property, the defendant did not offer the second plaintiff a place to stay or discuss the subject of him staying at the Property. The first plaintiff says that during this conversation, the defendant said that she could come and live at the Property and bring it back to life as a bed and breakfast.
3. From 20 January to 5 February 2023, the defendant and the first plaintiff exchanged numerous emails which apparently indicates an emerging friendship between them, with the first plaintiff speaking in an emotionally evocative way and very flattering terms about the defendant, using various subject lines, including "New friend", "Best friend", "Sir Neil", "My dear friend", "Neil Sir".
4. Examples of the style of communication that was occurring between them include the following: 1. on 21 January 2023 at 8:57am, the first plaintiff sent an email to the defendant with the subject line "New friend", part of which stated: I promise me and Dean absolutely loved your character and personality and you are such a genuine man who has worked hard in your life to get to where you are , we both want to see you happy and we genuinely mean it ,words are easy to say but actions speak louder than words and as you see us and get to know us you are a very intelligent man so you know if we are real or fake… We are so excited I started to pack up last night [laughing emojis] can't wait to start a whole new beginning for all of us!! … You are going to live your dream that you've always wanted.. actually all of us and I give you my word Dean and myself will have your back 100% and NO MORE BULLING! I will not let anyone talk down and disrespect you in any way I promise, once we are there and talk more and get too know each other we will see how things will happen but please please I beg you Sir don't stress and overthink anything only what you what to happen will happen.. so think of it you got a couple of mates coming to stay with you for a couple of weeks and see how we go.. we will take baby steps until we are comfortable and understand one another. Please Neil at any time you need anything or want us to grab you something from the shops please shoot me up an email! If you feel sick or anything please let me know and I'm looking for a simple mobile phone online for you!! 1. on 5 February 2023 at 6:42pm, the first plaintiff sent an email to the defendant with the subject line "Sir Neil" (responding to an email from the defendant that day in which he said "I DON'T WANTYOUWORKINGFOR ME, I WILL GET THERE EVENTULY. THANK YOU SO MUCH") which even went so far as to state: Neil,. Do you want to upset me?? Because if you do then you are doing a good job about it.. I want to be the daughter you never had the friend who genuinely cares for you. Let me help please it's giving me reasons not to give up I don't want to get a job anywhere I don't want too work for anyone.. I want to work for you and help you live to see your dream hold your name forever xx
5. This style and tone of communication with the defendant seems quite odd when seen in the context of the first plaintiff only having met the defendant for the first time on 20 January 2023.
6. In several instances, these emails evidence that the defendant offered the plaintiffs accommodation at the Property and to run it as a bed and breakfast, such as: 1. the first plaintiff sending an email on 21 January 2023 at 8:57am to the defendant stating: We are so excited I started to pack up last night… can't wait to start a whole new beginning for all of us!! … …so think of it you got a couple of mates coming to stay with you for a couple of weeks and see how we go..we will take baby steps until we are comfortable and understand one another. 1. the defendant sending an email on 2 February 2023 at 9:02am to the first plaintiff stating: …Perhaps my offer to both of you is, if you desire, the rental of the bathroom, kitchen, bedroom and share carport, until the 30th June. Such tenancy is for your, exclusive private, unrestricted domestic use. In years gone by, such situation was effected to acouplefrom THREDBO. This tenancy requires your financial provision of electricity,gas,firewood to your private use. The premises to be cleaned on expiry of the lease so that future letting on 2nd July is appropriate. To assist your situation, DEAN MAY choose to detail his offer of, my interest in Excavator or Elictric wiring to bathrooms. Only to a similar value to the tenancy lease. I am willing to sign over as detailed as above on a lease form, if desired COMPLETELY SEPERATE to this lease, till the 30th June 2o23. A further arrangement MAY fall into place, perhaps as ABBY to meet, greet and others, to guests. Such optional and defined in the future. This note is of GOODWILL towards yourselves, and similar has been effected in the past. 1. The defendant sending an email on 4 February 2023 at 12:59pm to the first plaintiff stating: … It may be advantageous to your catering concept, if one night, during this coming 2 week school holiday period if, a complementary meal is provided on both guest occasion???? I could pay for ingredients that could be prepared in my flat and transferred to the guest house???? Such would introduce ABBY to the guests.
7. The defendant says that the above email on 2 February 2023 arose following a visit to him by the plaintiffs at the Property on 31 January 2023. The defendant says that after receiving an email from the first plaintiff that morning, the plaintiffs came from Cooma to the Property to have breakfast with the defendant, bringing food and timber as gifts for him. The defendant says that during this visit, the second plaintiff approached him and pointed out deficiencies in his home and that he thought the Property needed a car park, telling the defendant that he was a licensed builder and could build a car park in exchange for rent for staying at the Property.
8. The plaintiffs say that during the discussion with the defendant, the second plaintiff indicated that he could do work on the Property and that the defendant had described the work he wanted done on the Property, including building a road and parking area, renewing all stormwater run-off to the water tank, making pedestrian access to the Property from the car park, reinstating the bore, and making improvements to the house such as bathroom screens, removing bats from the living room, repairing seals to rooms and refitting and rearranging the bedrooms. According to the defendant, these conversations were initiated by the plaintiffs who approached him on several occasions saying that the Property needed various works to be done on it such as roadworks, the construction of a car parking area and major renovations, and that any major works, repairs or renovations would need to be approved by the defendant.
9. The defendant says that he limited the period of the offer to rent the space to 30 June 2023 as he wanted his friends and family to continue to enjoy coming to the Property and that he had a repeat guest and friend due to arrive on 2 July 2023. The defendant also says that he limited the rented space to one bathroom and one bedroom as he still wanted to be able to attend the main house, as the granny flat does not have hot water or cooking facilities and he did not want the plaintiffs using the other 5 bedrooms or 4 bathrooms.
10. The plaintiffs then moved into the main house on the Property, although it is not clear when that took place and it is not clear precisely when they were actually residing at the Property at subsequent times. Initially, the defendant was residing in the granny flat at the Property.
11. The plaintiffs say that the second plaintiff (with help from a friend, Perry Condoleon) commenced to do work on the Property, whilst also working on another job in the area, and the second plaintiff made meals for the defendant.
12. On 23 February 2023, Sharon Nunan of Perisher Blue Pty Ltd sent a letter to the second plaintiff (following the attendance by her at the Property, when the defendant was present) thanking him for considering them for the management of the Property, which was described as "Winter Park Lodge 611 Alpine Way, Jindabyne, for the 2023 winter, offering to take over the Property with 6 bedrooms accommodating 18 tenants for $72,000 for the 16 week season.
13. The defendant says that he did not know about this letter until he received a copy of it on 4 May 2023 (to which I refer below) and at that time he had never discussed with the plaintiffs fully occupying the main house or them staying beyond 30 June 2023.
14. On 27 February 2023 at 6:10pm, unusually, an email was sent from the email address of the defendant to John Gagen, but appears to have been clearly written by the plaintiffs and contains a sign off with the second plaintiff's email address and mobile phone number. The email states: Hi John, it's Dean and Abby from Winter Park, Sir Neil Walker has given us the honors to manage his property. We would love to continue to offer our accommodation service having you stay with us, we will be doing some work to the Ski lodge in the coming weeks ahead. We are currently taking bookings and would like to pass on our email and number if you would like to enquire further information.
15. The defendant says that Mr Gagen is a friend and repeat guest of his at the Property. The defendant says he did not authorise the plaintiffs to access his personal emails or go inside the granny flat and that he was concerned at the contents of the email because it related to a period from 27 August 2023 to 2 September 2023, which was outside the term of their agreement to 30 June 2023.
16. The defendant says that about this time, the plaintiffs approached him on several occasions seeking to increase their role on the Property by referring to works that were required to be done on a new roof, new gables and a new water pump. The defendant asserts that he tried to avoid those conversations because he did not want the plaintiffs staying any longer than 30 June 2023, he felt under pressure and began to hide in his granny flat.
17. The defendant also says that the plaintiffs made several proposals to do work on the Property involving roadworks, construction of a parking area and major renovations but that he agreed they could do general maintenance and a basic car park in exchange for accommodation.

March 2023: alleged guest house agreement and defendant's views on the plaintiffs

1. The plaintiffs say that on 5 March 2023, after a discussion with the defendant in which the second plaintiff asked for a lease with a right to manage the Property, the defendant gave them a handwritten signed document dated 3 March 2023 which states: Abbey and Dean Partnership is assigned to Total Management of Winter Park guest House and Property Abbey and Dean Partnership agree to assume Total Liabilities of operation of guest House and Property also upkeep of Winter Park 611 Alpine Way Neil Walker 3/3/23
2. The defendant denies writing and signing this document. The defendant says that around this time, he gave in to the pressure he felt under from the plaintiffs and said to them that they could stay for the 2023 winter. He says that once he agreed that they could stay for the 2023 winter, the plaintiffs' pressure on him eased up.
3. On 29 March 2023 at 5:43pm, the defendant sent an email to his friend, Craig Banning, saying: A and D were offered a staff bed in my flat, however They wrangled use of the big house. STRANGE arrangement!!! They have been advised to vacate for CRAIG BANNING and seem OK with that…. ABBEY and DEAN have conducted much work around the farm, much more than I had resource for. MY summer income has been traded against bulldozing and maintenance. They are a nice friendly pair
4. On 29 March 2023 at 8:24pm, the defendant sent an email to Mr Banning in which he stated: Thank you for marshaling a group, that like yourself were the kind of personalities that I wished to share my place with, thank you. That is the reason that when passing over to A and D, I stipulated that CRAIG BANNING and FRIENDS, would be sanctioned, for at least this year. A and D seemed to mellow since first taking over. They are pleasant to be with, expect some changes, both now and in the future.

April 2023: draft lease agreements prepared and further work

1. The plaintiffs say that they prepared a document titled "Commercial Lease Agreement" dated 10 April 2023 between the defendant as landlord and the second plaintiff as tenant for the lease of the Property with the permitted use (cl 3) being "making improvements and ski lodge business". The term of the lease (cll 8 and 9) is, apparently mistaken, stated to commence "at 12:00 noon on 13 August 2053 and ends at 12:00 noon on 13 August 2053" and also states that "[n]otwithstanding that the Term commences on 13 August 2053, the Tenant is entitled to possession of the Premises at 12:00 noon on 12 August 2023". The rent (cll 13 and 14) is stated to comprise a base rent of $1,000 payable per month.
2. The Commercial Lease Agreement is not signed by the plaintiffs or the defendant. The defendant says that he was approached by the first plaintiff who insisted that the plaintiffs could to more work and make the Property a "goldmine" and told him to sign a lease with conditions on which they would stay.
3. The defendant says that he was in his garden when he was approached by the second plaintiff holding the Commercial Lease Agreement. He says that he had difficulty reading and understanding the terms of it so he did not sign it and told the plaintiffs he would need to get legal advice. The defendant says that he had no intention of signing a lease and asserts that he never did. He also says that at this time he stopped answering the door to the granny flat.
4. The plaintiffs say that at the request of the defendant, they prepared a more simple document. The first plaintiff then prepared a handwritten document setting out her understanding of the promises that had been made and provided it to the defendant, who did not sign it. The copy of the document in evidence is difficult to read in several parts and contains multiple crossings out to signify corrections to it. To the extent that it is legible, it states: AGREEMENT BUSINESS CONTRACT PARTY 1 - MR NEIL WALKER - property owner will PARTY 2 - MR DEAN W GIBSON stand together on this day and 23/02/2023 for the agreement as follows NEIL WALKER SOLE OWNER OF 40 acres, 611 Alpine Way, CRACKENBACK. Being in total control with decision making for himself, has given Dean Gibson authority to take over full management of WINTER PARK and property, DEAN GIBSON will be responsible for all financials and money handling, Winter Park future costs and needs, maintenances and requirements. Any bills or repairs including improvements or renovations will all be part of Dean Gibson responsibles. All repairs and alterations must be approved by Mr Neil prior to starting. MR NEIL WALKER has agreed with DEAN to handle the premises and all above with offering a 30 year lease with 30 years optional plus any time the property goes for sale DEAN must have first option to purchase with lease still in progress or lease erased regards DEAN must have first choice. NEIL WALKER will receive monthly payments which is inclusive for and remains private. DEAN MUST APPOINT Mr Neil Walker for any major work on Mr Neil's property and must not enter before staff allow you to come here. Both HIGHLY respectful and a pleasure to communicate to.
5. The defendant says that this document was never provided to him.
6. The plaintiffs say that in April 2023, the second plaintiff ceased to work in Jindabyne and commenced working full-time for the defendant. At about this time, the defendant noticed that the first plaintiff was modifying the interior of the house and asserts that he asked her to stop but she responded aggressively and did not.

May 2023: defendant warned about plaintiffs, further work done, Property advertised and tensions escalate

1. On 4 May 2023, Sharon Nunan of Perisher Blue sent an email to the defendant stating: Good afternoon Neil, Attached is the document I sent to Dean Gibson in February when he asked me to look at your property to take it over for a 16 week Perisher Lease. I was under the impression it was Dean Gibson's property but as I met you before Dean arrived you told me it was your property. I do not have a good feeling about this Neil and I think you need to get legal advice to evict Dean and his family from your property immediately, I have spoken to Kylie from Alpine Law in Jindabyne that could help and I have also spoken to the Jindabyne Chief Police Officer Brad Hughes who also said you need to start the process of eviction immediately and then you might need to get an AVO against them. Please ensure you have your will in place with a Next of Kin also. Please feel free to reach out if you need any help with this. This has RED flags all over it. Please take care and do not sign anything Dean Gibson or his family gives you. All the best Neil
2. Attached to the email was the letter dated 23 February 2023 from Ms Nunan to the second plaintiff making an offer to manage the Property, which is referred to above.
3. The plaintiffs assert that by May 2023, the second plaintiff had carried out considerable work around the Property, including drawing on their own finances and that the only payment made by the defendant was $402 for a broken hydraulic hose on an excavator. The defendant says that at this time, the work at the back of the Property consisted of a half excavated car park, which was left for days on end.
4. The defendant says that by May 2023, he was scared to approach the plaintiffs about any issues regarding the property, its maintenance, or his guest bookings and due to his hearing loss, he could not understand what they were saying and felt intimidated. He said that over those weeks, he noticed the plaintiffs come and go every three or four days and even though he received conciliatory emails, he felt they were aggressive to him in person and he became extremely distressed. The defendant says that he became more and more unwell, his health declined and to try and manage his heart issues he mainly stayed in the granny flat.
5. In about May 2023, the plaintiffs commenced advertising the Property on booking.com and Airbnb and began to receive bookings, describing it as: Winterpark at Crackenback Farm stay hosted by Dean 15 guests. 6 bedrooms. 14 beds. 5 baths
6. At about this time, the defendant says that the plaintiffs told him that they had commenced advertising the Property for accommodation services and guest bookings and had received bookings.
7. According to the plaintiffs, their relationship with the defendant was very close, and they introduced him to the second plaintiff's parents. They also say that the defendant prepared a handwritten reference for the second plaintiff, which on its face appears to be directed for consideration by a Magistrate in relation to a matter involving the second plaintiff. The reference is in all capital letters and appears to be signed by the defendant, stating: Recently returning from Canberra Hospital, by bus to Jindabyne, I struck up dialogue with fellow patient, Abbey, who had limited accommodation at her disposal. Therefore, I invited Abby to share accommodation at my place, Abbey and Dean Gibson accepted. Dean Gibson acted with pyshological and pyshical support to Abbey. Dean Gibson, a mid life, healthy, skilled carpenter with a most helpful disposition, very willing lea, effected maintenance duties around my house, free of charge, on occasions that he did not travel to Canberra to complete outstanding commitments of a trade nature. Abbey was Dean Gibson's constant travel body during such journeys, which was remidal to Abbey. Myself, an over 80 year old pensioner, quite unable to effect or afford on home maintenance, Dean Gibson has willingly jumped at the opportunity to bring to a close the regular maintenance requirements of a residence. Such maintenance, where required Dean Gibson has not charged for and often used recycled materials and or offcuts from his regular pursuits. Such matters are occurring in the Snowy Mountains where skilled building workers are critical to local economy, yet difficult to engage in an extremely cold and difficult environment. Dean Gibson seems so willing to endure, free of charge, for friends, severe climate difficulty associated with the extreme local environment. Mr Last, if you may, please convey to the Honourable Magistrate, the exceptionability of well meaning trades people, kindly and skilfully pleased to support within the community, others not so vibrant or healthy.

June 2023: alleged written lease and arguments

1. On 6 June 2023, the defendant says that he spoke to the plaintiffs about works being undertaken at the Property without his consent or preapproval and that the discussion turned into an argument.
2. The plaintiffs say that in early June 2023, they became concerned to obtain a formal arrangement with the defendant because they allege that they had spent substantial money and invested considerable time on the work requested by the defendant. The plaintiffs say that the defendant prepared a form of lease and rental bond form titled "Residential Tenancy Agreement" in the presence of the first plaintiff (Lease Document).
3. The plaintiffs assert that most of the handwriting on the Lease Document is that of the first plaintiff made at the direction of the defendant and that the defendant signed the Lease Document in their presence.
4. On its face, the Lease Document contains: 1. no signature in the space provided for the "Signature of landlord" (where the defendant's signature would be expected to be found); 2. the first plaintiff's handwritten name and signature in the space provided for the witness of the Landlord's signature; 3. the second plaintiff's signature in each of the two spaces provided for "Signature of tenant" (signing it twice, as though there were two tenants); 4. the second plaintiff's handwritten name and signature in the space provided for the witness of Tenant's signature (thereby witnessing his own signature); and 5. the purported signature of the defendant in the space provided for the witness of the Tenant's signature.
5. The defendant says that he did not produce, agree to or sign the Lease Document and that the purported signature which appears on it is not his signature, inviting comparison to the signature which is contained on his driver licence. The two signatures are obviously starkly different to each other. The defendant also says that he would not agree to a 30 year lease because at 82 years of age, he does not expect to be living for another 30 years.
6. The first two pages of the Lease Document contain handwritten entries to different fields requiring completion. It is very unusually completed, to say the least. Amongst the fields completed in handwriting (shown by underlining below, with uncompleted fields shown by dotted line) are: This agreement is made on 07/06/2023 at WINTERPARK between Landlord Name NEIL WALKER Tenant DEAN WILLIAM GIBSON [MOBILE NUMBER] ABBY MAY [MOBILE NUMBER] TERM OF AGREEMENT The term of this agreement is ------------- weeks/months/years starting on 06/06/2023 and ending on 06/06/2053 RESIDENTIAL PREMISES The residential premises are Address 611 ALPINE WAY CRACKENBACK Postcode 2627 The residential premises include: property 611 Alpine Way CRAKENBACK 40 ACRES + LAND DIRT ROAD, HOUSE + BEDROOMS RENT A tenant must pay the rent on or before the day set out in this agreement. The rent is $-------------- per ------------------- The method by which the rent must be paid: (a) to CASH IN HAND TO MR N WALKER AT WINTERPARK (b) into the following account, or any other accounts subsequently nominated by the landlord: Name of financial institution: NEIL WALKER Account number: 20% OF ALL SALES PER BOOKING Account name: FROM DEAN W GIBSON Other people who will ordinarily live at the premises may be listed here (cross out if not needed): ABBY MAY (HODA MAKKI) URGENT REPAIRS Electrical repairs: Plumbing repairs: TO BE MANAGED BY Glass repairs: Locksmith: DEAN GIBSON RESPONSIBLE FOR Other repairs: ALL REPAIRS
7. The Lease Document also contains the following handwritten entry on the page for "additional terms & conditions", most of which is written in capital letters: MR NEIL WALKER GIVES PERMISSION TO DEAN GIBSON TO MANAGER AND LOOK AFTER WINTERPARK, THIS INCLUDES MAINTANCE AND TO OPERATE WINTERPARK TO USE AND RUN ACCOMMODATION FROM 611 ALPINE WAY CRACKENBACK DEAN GIBSON IS RESPONSIBLE FOR ALL BILLS OCCURRING AT THE PREMISES, INCLUDING ALL COSTS TO REPAIRS AND ANY ARISING FUTURE COSTS BEEN manager, TO WINTERPARK, FUTURE AND MINOR OR NONE MINOR RENOVATIONS ARE TO AGREED WITH NEIL WALKER prior to start. NEIL WALKER REMAINS ON HIS premises at all times and remains SOLE OWNER OF WINTERPARK.
8. The plaintiffs say that once they had the Lease Document in place, they were comfortable carrying out further work and spending further money to make the Property ready for the winter peak season. They assert that they installed internet, installed TVs and purchased furniture, bedding, manchester and kitchen utensils.
9. Later in June 2023, the defendant said he spoke to the plaintiffs about the booking he had for his friend Craig Banning for 2 July 2023 which resulted in further arguments between them, with the second plaintiff particularly saying that he would increase the rent for those guests to $7,000 a week and make it difficult for them while they were at the house. The defendant also says that the second plaintiff yelled words to the effect of "you need to sign a lease old man" and the first plaintiff said words to the effect of "just sign a lease or we'll just say you signed it and do it ourselves".
10. The defendant says after this argument, the plaintiffs at different times put documents in front of him that he was not able to read or understand but did not sign, one of them being the Lease Document. The defendant says he felt threatened and that his life was in danger but did not sign any of them.
11. On 9 June 2023, the defendant sent an email to Mr Banning about these arguments, saying: Hello CRAIG, apologies for events that you as a client have been subjected to, sorry. I took the matter up with DEAN recently and the matter nearly turned into a punch-up. H however all seems well. DEAN has spent much time as a carpenter on building sites, throwing things around in an untidy manner. Hospitality environment is strange to him as yet. DEAN has A good heart.
12. On 19 to 22 June 2023, the defendant was absent from the Property at Canberra Hospital undertaking a sleep study.
13. The defendant says that in the last week of June 2023, the plaintiffs were not at the Property.

July 2023: defendant's attempts to evict the plaintiffs

1. On 1 July 2023 at 1:02am, the first plaintiff sent an email to the defendant using the subject line "Dearest friend" which stated: Sir Neil, I hope this email finds you well. Sorry to email you so late it's been a busy day and a little rough, anyway hope you are in good spirits and taking ot easy on yourself! I miss you already and already feel empty and sad… I actually feel like I don't belong in Sydney anymore and I can't stop thinking about you it's like I can go outside and call out your name and then I realise how far away I am and yeh but at least tell me you are doing okay!
2. This was a return by the first plaintiff to communicating in writing with the defendant using emotionally evocative language. The balance of the email concerned arrangements being made for visitors arriving the following day for one night and then leaving, which included an assurance by the first plaintiff "that hopefully by 11am me and Dean will have arrived to you and tidy up remove any rubbish and make sure things are in place and tidy & neat".
3. On 1 July 2023 at 7:18pm, Mr Banning sent an email to the defendant referring to the fact that he would be at the Property the following day and asking him if he could provide the street address of the Property to provide to two new people coming.
4. On 2 July 2023, the defendant responded by email to Mr Banning saying: CRAIG, come as soon as you can, the house is a mess and DEAN did not show up. Come as quickly as you can
5. The defendant says that Mr Banning was at the Property for approximately 7 days and that after speaking with Ms Nunan from Perisher Blue and with the support of Mr Banning, on 8 July 2023 at 4:44pm, the defendant sent an email to the plaintiffs in the following form: Dear DEAN and ABBY Unfortunately, I feel that I can no longer have you stay on my property. As you know, I have been willing to allow you to stay on my property rent free for the last 6 months. This was on the expectation that you would help me manage the property and maximise the income it could generate, especially during the winter SKI season. As you know, for me, as an 83 year old man, the burden of managing my property is something I was hopeful of obtaining some assistance with. However, over the last 6 months, you have generated one booking, and you paid me $1000. More concerning for me, I have recently found that PERISHER Blue offered to rent my property for $72,000 to 16 weeks for the 2023 winter season. Without any consultation with me, you turned down this offer. At around the same time, you handed me a 30 years lease you wanted me to sign, offering me $40,000 per year, with a first option to purchase my property. It doesn't seem to me that you have my best interests in mind when managing my property. In fact I know that Perisher was so concerned they contacted Jindabyne Police. My understanding is that Perisher told the Police they were concerned that you were taking advantage of me. I appreciate that you have done some work on the property, in return for which you have spent considerable time living on my property rent free for no charge from me. You have also sought a large amount of your personal goods on my property, including a jet ski, tools, building and construction equipment and personal effects, without any rent or charge. I am happy to arrange a mutually convenient time for you to collect these items from the property, however this does not extend to you staying the night. Please let me know when you would like to return to the property so I can make sure I am present.
6. On 8 July 2023 at 5:43pm, the first plaintiff sent an email to the defendant in response to his email earlier that day, stating (all in capitals) that they would be travelling that night to the Property, they would be there in the morning, that the defendant was aware that they had the Property booked until the end of the season which was agreed by him, concluding: WE FINALISE OUR BELONGINGS THEN. SO WE WILL SEE YOU IN THE MORNING.
7. On 8 July 2023 at 6:17pm, the first plaintiff sent a further email to the defendant in response, variously claiming that the defendant had hurt her, fooled her, taken advantage of her traumatic past, and "stripped me from all aspects of life and left me broken into pieces". The email contained very emotional language, claiming that the defendant had used the plaintiffs "to better and increase value to your land and property and you have used and abused me mentally physically emotionally and so much more". The email concluded by saying: … I must say Neil it's not just about you not wanting us on your property it's about my pain and how you have left me to bleed myself away by doing all this.
8. On 10 July 2023, the first plaintiff sent an email to the defendant confirming and reminding him that there were visitors arriving that day after lunchtime and that the plaintiffs would arrive to greet them just before then.
9. On 11 July 2023, the defendant says that he spoke to Constable Jenkins of Jindabyne Police and received guidance on the eviction of the plaintiffs from the Property. The defendant says that Constable Jenkins informed him that she would be applying for an apprehended violence order restricting the plaintiffs from the Property and suggested that the defendant give them two weeks' notice to leave the Property.
10. On 21 July 2023 at 3:09pm, the defendant sent an email to the second plaintiff demanding that they vacate possession of the Property, in the following terms: Dear DEAN and ABBEY NOTICE TO VACATE PPTY. 611 ALPINE WAY CRACKENBACK I give notice to deliver up vacant posestion of premises at 611 ALPINE WAY CRACKENBACK BY NO LATER THAN 5 PM ON 5 AUGUST 2023. I note that you are not occupying these premises under the Residential Tennancies Act 2010 as there has been only an informal agreement for your occupation on the property and there has been NO rent paid during this period of December 2022 and the present. Please ensure that onvacating the premises you REMOVE ALL your items including building items and personal effects, thus leaving the property in a clean and tidy condition, as found. Please vacate by the time frame indicated in this notice. Yoursfaithfully Neil. R. Walker proprietor of 611 Alpine Way Crakenback thank you
11. On 21 July 2023 at 3:46pm, the second plaintiff sent an email to the defendant responding to the notice to vacate. It was clear from the email that the plaintiffs intended to challenge the defendant's right to evict them from the property. The email was in the following form: We are on the way to winter park now with 1500 dollars to give you plus a new pump as we discussed but if you want to take things further and in a different direction then we wont be played around with any further because to my memory we had a conversation less than one week ago about all of this. However if you are adamant you want to seek the tenanties act then be prepared we have seeked legal advice and if their is a verbal agreement between two parties then technically you are required to give the tenants 6months notice and thats coming from tribunal civil matters so it's totally up too you and we Will respect any decision you choose We shall arrive tonight hard to pay rent as you have never discussed it with us because as you are aware we have put hard visible proof an evidence to your property by dean Gibson who you gave full authority to management of winterpark
12. On 22 July 2023 at 7:13pm, the first plaintiff sent an email to the defendant complaining about abuse and harassment of guests. The email stated: Mr Neil Walker, for the second and third and fourth time I ask you to stop abusing our guests, our guests have made reports of abuse and harassment and damage to vehicle. I have suffered enough of your abuse and now you are doing it to our guests? Can you please stop. We have guests coming and they will be respected as they should be they are guests and you have no right to abuse or harass them in any way, any form of complaints about abuse harassment yelling shouting using foul language in intimating anyone and especially spitting in one's face will be reported to the authorities. Dean & Abby management of WinterPark
13. The defendant denies ever abusing any guests.
14. On 22 July 2023, the defendant says that he attended Jindabyne Police Station to advise Constable Jenkins that he had issued the notice to vacate, that she confirmed that two weeks was correct and the date of eviction was 5 August 2023.
15. On 23 July 2023, the defendant said that he noticed that two of the tyres on his car were flat, caused by stab marks in the side near the rim.

August 2023: provisional apprehended violence orders issued to the plaintiffs

1. On 7 August 2023, the defendant sent an email to Mr Banning saying that he had just driven in from Cooma, the plaintiffs had just driven into the Property and asking him to "please phone police for me". The defendant says that the police did not attend the Property.
2. On 8 August 2023, the first plaintiff sent an email to the defendant making very serious allegations about the conduct of the defendant. The email was in these terms: It's sad really sad that you have had the police coming to evict us off the property, AFTER you invite us in , after all we have done for you after all the meals you felt like eating and I made them especially for you even though I took all your abuse after you violated my privacy and mentally and emotionally abused me I took it all and you always said and threatened me not to say anything to Dean. Do you realise what is going to happen when I come out and talk especially you knowing I came you cooma escaping Domestic violence from an ex and you still continued to use your abused, main reasons I haven't spoken to police is because it's disgusting and traumatising to keep going down that path I blame myself I hate myself I hated every single second you ever laid a finger on me I hated myself every time I handed you a serving of food that's why I would leave it o.n your table when you weren't there then you started to get pissed off you invited us in and convinced us to be managing winter Park to maintain and have authority fooling us getting Dean to do the hard work while you abused and took advantage of me knowing I was vulnerable at the time and desperate to find accommodation. Now suddenly you scared and terrified from me and Dean you weren't hesitant when you told us to go Victoria with you and insisted you stay with is for accommodation not paying for anything during the trip just enjoying the view again everything paid for. Robbing us and taking advantage we respected you when you only made fools out of us. I will come out and speak everything you have put me through all the times you had me in that corner you will be accountable for everything tear that you made me cry.
3. The defendant denies these allegations, says he was horrified by these references to abuse and he feared that the second plaintiff would use the lies as a reason to be aggressive or violent to him.
4. On 8 August 2023, the plaintiffs say that four police officers attended the Property and told them to leave, which they then did.
5. On 9 August 2023, Cooma Local Court issued a provisional apprehended domestic violence order (PADVO) under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) to each of the plaintiffs. The gravamen of each PADVO was that each of the plaintiffs must not do any of the following: 1. assault or threaten the defendant; 2. the stalk, harass or intimidate the defendant; 3. intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of the defendant; 4. go within 500 m of any place where the defendant lives, any place where he works, or the Property.
6. The defendant says that after the PADVOs were made, security cameras were installed at the Property covering the main house, garden, granny flat and driveway and that he did not give permission to the plaintiffs to install them. The plaintiffs agree that security cameras were installed but say that did not occur while they were subject to the PADVOs. The plaintiff say that they were installed to provide security to assist in showing that the plaintiffs have not breached the PADVOs (which seems an odd assertion given that it is claimed by the plaintiffs that they were not installed during the PADVOs), because there had been complaints by guests that the cars had been "keyed", there were complaints that the water was not available and furniture and other items had been removed from the house.
7. On 9 August 2023, the defendant says that he contacted the police and told them what had happened and they then attended the Property and escorted the plaintiffs out of the house. The defendant says that he saw the police shut the front door and take the key, and he was unable to get inside the main house as he did not have a key to do so. The defendant says that he continued to live in the granny flat and he put a chain across the front gate to prevent the plaintiffs re-entering the Property.
8. On 11 August 2023, the first plaintiff says that they were informed by a guest that the gates on the Property had been locked and the defendant would not allow them access to the Property, which caused Airbnb to refund their money the first plaintiff to have to find alternative accommodation for 17 of them.
9. On 14 August 2023, the summons was filed commencing the proceedings, and the plaintiffs obtained an order from Robb J for the abridgment of time for service of the summons and a notice of motion seeking interlocutory relief on the defendant, which was made returnable on 17 August 2023.
10. On 14 August 2023, the summons, notice of motion and supporting affidavits were served by email and by express post on the defendant by the plaintiffs' solicitor.
11. On 14 August 2023, the defendant went to hospital to have a pacemaker implanted and remained there for several days.
12. The 17 August 2023 orders were then made.
13. On 22 August 2023, Mr Banning sent an email to the defendant saying that he had cancelled their trip to the Property as it seemed that the second plaintiff had taken over the Property and advising the defendant to get a lawyer and start a legal procedure against the second plaintiff to get him removed from the Property.
14. On 22 August 2023, the second plaintiff registered the business name "Winter Park" in his name.
15. On 24 August 2023, the defendant returned to the Property from hospital with a new pacemaker but says he felt unwell and was recovering for some time after.
16. On 25 August 2023, the solicitors for the plaintiffs (Rostron Carlyle Rojas) sent a letter to the defendant informing him that on 23 August 2023, order 9 of the PADVOs issued to the plaintiffs was removed by Magistrate Clisdell, being the order which required that they must not go within 500m of any place where the defendant lives, any place where he works, or the Property. The letter included the following statement: Our clients would like to return to its previous good relationship with you.
17. The defendant says that he did not receive this letter on 25 August 2023 because after returning from hospital he did not access his tablet for about two weeks and he was unwell for about a month after leaving hospital.
18. The defendant then continue to live in the granny flat with minimal contact with the plaintiffs, but he observed that works on the Property stopped and there were no further guests at the main house.

October-November 2023: defendant leaves the Property

1. In October 2023, the defendant says that a motion activated alarm was installed near the granny flat, for which he did not give his approval.
2. On 21 October 2023, the defendant's sister sent an email to the defendant saying that she would be in good enough health to come to visit him at Christmas.
3. On 8 November 2023, the defendant says that he had a fall and was taken to hospital in an ambulance and while he was in the hospital, he spoke to the police who said that they would make an urgent application for him to return to his home safely.
4. On 10 November 2023, the defendant says that he was discharged from hospital.
5. On 10 November 2023, an application was made by Sergeant Tyrone Stacey in Cooma Local Court to vary the PADVOs by adding the original form of order 9.
6. On 27 November 2023, the defendant said he had not seen the plaintiffs for 6 to 8 weeks, saw the lights on in the main house at 7am and a car parked in their usual spot but was not certain whether it was the plaintiffs. The defendant says that while the plaintiffs are on the Property he is scared and has not been able to stay in the granny flat since that time.
7. The defendant is currently staying with various friends and does not know where he will stay if the proceedings continue for a long time with the interlocutory injunctions in place.

Rent

1. The plaintiffs say that the second plaintiff paid rent to the defendant in cash pursuant to the Lease Document, as follows: 1. 5 June 2023 - $2,100; 2. 15 June 2023 - $2,000; 3. 2 July 2023 - $1,000; 4. 29 July 2023 - $2,000; 5. 3 August 2023 - $2,200.
2. The plaintiffs say that each payment was accompanied by a tax invoice/statement addressed to the defendant from the second plaintiff. Each of these tax invoices/statements is an unusual document because it suggests money was owing from the defendant to the second plaintiff. The documents would make more commercial sense if they were receipts issued by the defendant to the second plaintiff.
3. The defendant says that the tax invoices/statements refer to payments which he never received, with the only payment he ever received been $1,000 in cash lodged in his door on one occasion.

Work done by the plaintiffs

1. The plaintiffs assert in evidence that they have spent $220,000 of their savings to upgrade the Property over 8 months to bring it up to an acceptable standard to operate as a guest house and that the second plaintiff and his friend, Mr Condoleon, have carried out this work.
2. I note that in [24] of the statement of claim, the plaintiffs assert that they have carried out works at their cost of about $250,000 over 6 months at the Property.
3. There is no doubt that the plaintiffs conducted work at the Property, which is admitted by the defendant. The photographic evidence indicates work done on the road, the carpark and new stormwater pipes flowing into the existing water tank as well as some cosmetic interior changes.
4. The plaintiffs have not, however, provided a single document as evidence recording any significant payments made by them for the work. In evidence is an invoice dated 9 August 2023 for $110,880 from Malibuild Australia Pty Ltd (which appears to be associated with Mr Condoleon) for "Excavator Hire and Civil Works to WINTER PARK" but there is no evidence that it has been paid by the plaintiffs. There is also in evidence an invoice dated 24 February 2023 for $6,382.50 from the second plaintiff addressed to "Mal Build" for "External Structure", which is odd because it suggests that the second plaintiff was charging Mr Condoleon for work he was doing at the Property rather than the other way around.
5. The defendant says that based on searches at Service NSW, neither Mr Condoleon or Malibuild hold any contractor/tradesperson licences.
6. Other invoices in evidence addressed to the second plaintiff are for very minor amounts: Mitre 10 for various hardware ($162.71 and $83.93, shown as paid), Skymesh ($304.99 plus $125, with no evidence of payment of the latter), Sydney Tools for various tools (for which there are duplicates of exactly the same invoices, with the only invoices being for $339, $878 and $385, and no evidence of payment) and Amart ($610 for furniture).
7. The plaintiffs have not provided a single document as evidence recording any reduction of their savings allegedly spent on the Property.
8. This lack of evidence is surprising when it would have been a very simple matter for the plaintiffs to provide it, even at an interlocutory stage.

Bookings

1. It appears that the plaintiffs have a booking of the Property for 29 December 2023 until 2 January 2024 (4 nights - 6 adults, 5 children) and then bookings of the Property on 15 July 2024 (3 nights - 11 adults, four children), 23 July 2024 (10 nights - 6 adults, 1 child), 22 August 2024 (3 nights - 4 adults, 5 children) and 29 August 2024 (3 nights - 4 adults, 5 children).
2. So the position appears to be that after 2 January 2024, there are no further bookings of the Property for a period of over 7 months.

LEGAL PRINCIPLES

1. There was no dispute between the parties that in determining whether to continue or discharge the interlocutory injunctions made in the 17 August 2023 orders, I should apply the same orthodox long-standing principles for the determination of whether an interlocutory application should be granted.
2. My task is not to determine whether those interlocutory injunctions should or should not have been granted ex parte on 17 August 2023 based on the evidence before the court at the time they were made. There is now further evidence before me and I have conducted an inter partes hearing, albeit not a final one. My task is to determine whether those interlocutory injunctions should be continued or discharged based on the evidence now before me, with the benefit of the submissions that have been made to me.
3. When an interlocutory injunction until further order has been obtained ex parte, the onus rests on the plaintiff who obtained the interlocutory injunction to satisfy the court that it should be continued: Lakis v Lakis [2016] NSWSC 1459, White J (as his Honour was then) at [25]-[27].
4. The task of a court determining whether to exercise the power to grant an interlocutory injunction is to do so in a manner which achieves justice between the parties pending the final hearing of the proceedings.
5. This was expressed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2009] HCA 63, Gleeson CJ at [12] stating: The justice and convenience of imposing interim restraint, pending the hearing of the final action, if it exists, lies in the need to prevent the practical destruction of that right before there has been an opportunity to have its existence finally established.
6. The principal inquiries to be made in deciding whether to grant an interlocutory injunction have been expressed in slightly different terms but to the same effect.
7. In Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1968] HCA 58, Mason ACJ at [11] said: In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.
8. In Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46, Gleeson CJ and Crennan J at [19], after repeating these inquiries, described them as: …the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed.
9. In O'Neill, Gummow and Hayne JJ (with whose reasoning Gleeson CJ and Crennan J agreed) at [65] expressed the first inquiry in this manner (footnotes omitted): The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks."
10. The inquiry involving the balance of convenience is determined by whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1, Kitto, Taylor, Menzies and Owen JJ at 622-623. The plaintiff bears the onus of establishing that the balance of convenience lies in favour of granting the interlocutory injunction: O'Neill, Gummow and Hayne JJ at [71].
11. While the factors to be taken into account in determining where the balance of convenience lie will vary with the circumstances of each case, common ones include the strength of the plaintiff's case, the hardship to the parties and third parties, delay, the utility of the proposed orders and the sufficiency of the plaintiff's undertaking as to damages.
12. The strength of the party's case for final relief is an important consideration in determining where the balance of convenience lies, there being a connection between the inquiry about the serious question to be tried and the balance of convenience. In Warner-Lambert Company LLC v Apotex Pty Ltd (2014) 106 IPR 218; [2014] FCAFC 59, Allsop CJ, Jagot and Nicholas JJ at [70] said: Whether an applicant for an interlocutory injunction has made out a prima facie case and whether the balance of convenience favours the grant of such relief are related questions. It will often be necessary to give close attention to the strength of a party's case when assessing the risk of doing an injustice to either party by the granting or withholding of interlocutory relief especially if the outcome of the interlocutory application is likely to have the practical effect of determining the substance of the matter in issue or if other remedies, including an award of damages, or an award of compensation pursuant to the usual undertaking, are likely to be inadequate.
13. The stronger the case for final relief and therefore the likelihood of success, the less is needed for the balance of convenience in favour of the grant of the interlocutory injunction: BMW Australia Ltd v Brewster (2019) 269 CLR 574; [2019] HCA 45, Edelman at [216].
14. The hardship to the parties and the nature of it is a central feature in the discretionary considerations to be addressed in the balance of convenience because it requires the court to assess the harm to the plaintiff is there is no injunction and the prejudice or harm to the defendant if the injunction is granted: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156, Dowsett, Foster and Yates JJ at [62]. The question of whether damages would be an adequate remedy for the plaintiff must always be considered as part of this inquiry, which "involves an assessment by the court as to whether the plaintiff would, in all material respects, be in as good a position if he were confined to his damages remedy, as he would be in if an injunction were granted": Samsung at [62].
15. The interests of third parties are also relevant to the balance of convenience, including any detriment caused to them if an injunction were refused, and whilst the weight of those matters depends on the circumstances of the case, they will rarely be decisive: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30, Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ at [65]-[66].
16. The giving of an undertaking as to damages by the plaintiff is generally an essential condition to the grant of an interlocutory injunction, unless there are exceptional circumstances: First Netcom Pty Ltd v Telstra Corp Ltd (2000) 101 FCR 77; [2000] FCA 1269, Beaumont, Burchett and Emmett JJ at [22]; Goater v Commonwealth Bank of Australia [2014] NSWCA 265, Ward JA (as her Honour was then) at [92]. If it is demonstrated that the plaintiff has no assets, the undertaking offered may be of no assistance, although there is no inflexible rule that plaintiff should be denied interlocutory relief unless a meaningful undertaking is given: Organic Marketing Australia Pty Ltd v Woolworths Ltd [2011] FCA 279, Katzman J at [69], citing Caravelle Investments Ltd v Martaban Ltd (1999) 95 FCR 85; [1999] FCA 1505 Finkelstein J at [25]. If it is known that a plaintiff does not have sufficient resources to satisfy an undertaking as to damages, it may provide a basis on which to refuse an interlocutory injunction: Bond v Gray [2013] NSWSC 1793 at [29]-[30].

DETERMINATION

1. This case is extremely troubling. I consider it to be a difficult case to justify the continuation of the interlocutory injunctions.
2. On the one hand, the plaintiffs say that on the faith of the granting of a lease of the Property to them for 30 years, they reside at the Property, carried out major works on the Property in reliance on representations made to them by the defendant and operate a guest house business there, with guest bookings taken for the upcoming period in December 2023-January 2024 (4 nights in total) and for further period in July, August and September 2024 (19 nights in total).
3. On the other hand, the defendant says that he is a vulnerable old man in very poor health with no family support who has been duped by undue influence, manipulation and fraud perpetrated upon him into allowing the plaintiffs to reside at his Property and conduct works, intimidated by them and now finds himself in such fear of the plaintiffs that he is excluded from his own home and having to rely on the kindness of friends to allow him to reside with them.
4. Wherever the truth lies between these two versions is highly contestable.
5. For the reasons I have set out below, my determination is to discharge the interlocutory injunctions with effect on and from 29 January 2024 and allow the parties to be in a position to seek an expedited final hearing if that is what they wish to do.

Serious question to be tried

1. The plaintiffs make their case based on four causes of action: breach of lease, an estoppel by representation, breach of s 18 of the Australian Consumer Law (ACL) as a result of misleading or deceptive representations and quantum meruit for work done at the Property. While monetary compensation in the form of damages is sought as relief for breach of lease, estoppel and breach of s 18 of the ACL and an order for payment of money based on quantum meruit, the final relief which is put forward to support the continuation of the injunctions in order 8, 9, 12 and 13 of the 17 August 2023 orders is based on the claims for breach of lease and estoppel.
2. The claim for breach of lease is put in two ways by the plaintiffs: 1. The defendant holds the Property subject to the Lease Document between the defendants as landlord, the first plaintiff as tenant and the second plaintiff as manager which should be specifically performed, and the defendant should be ordered not to interfere with the plaintiffs' and their guests' right of quiet enjoyment of the Property save as authorised by the Lease Document. 2. Further or alternatively, the defendant holds his interest in the Property subject to the right of the plaintiffs to a lease for a term from 6 June 2023 to 6 June 2053 on terms that the plaintiffs account to him for 20% of the income from the Property and the defendant should be ordered not to interfere with the plaintiffs and their guests right of quiet enjoyment of the Property save as authorised by the lease.
3. The claim for estoppel is one based on representations said to have been made by the defendant to the plaintiffs at various times.
4. First, it is alleged that on 23 February 2023, the defendant represented that in return for the plaintiffs doing the works on the Property and being responsible for the bills and repairs (including improvements and renovations), the defendant would grant a lease to the plaintiffs of the Property to be used as a guest house for a term of 30 years and the base rent would be $1,000 per month. It is alleged that in reliance upon these representations, the plaintiffs continued to occupy the main house and continued work on the Property.
5. Secondly, it is alleged that on about 10 April 2023, the defendant made a representation to offer the plaintiffs a 30-year lease with 30 years option, together with a first option to purchase and that in reliance with on those representations the second plaintiff with ceased to work and worked solely on the property and engage the assistance of Mr Condaleon.
6. Thirdly, it is alleged that on 6 June 2023, the defendant made representations in the form of the Lease Document and in reliance on the oral representations and the Lease Document, the plaintiffs did further work on the Property, procured Mr Condaleon as a builder to assist in working on the Property, expended money on furniture and fittings in the Property, expended the amount of $110,880 on civil work on the Property, paid for internet advertising, arranged for the guests at the guest house and made payments to the defendant for rent.
7. It is said that the defendant at all material times knew that the plaintiffs believed that they entered into a valid lease agreement for 30 years, knew that the plaintiffs would rely on the representations, was aware that the plaintiffs in reliance upon the representations acted to their detriment by carrying out the work and making payments and it would be unconscionable for the defendant to resile or depart from the representations because the plaintiff has acted in reliance on them and to resile or depart from them by purporting to terminate the plaintiffs occupation and use of the Property.
8. While the claims for breach of the Lease Document and estoppel both give rise to a serious question to be tried because of the number of factual contests involved in them as outlined above in relation to assertions by the plaintiffs that are denied by the defendant, scrutiny of the plaintiffs' case for both causes of action reveals that it is not strong.
9. At the heart of these alleged causes of action is the notion that the defendant agreed or represented that the plaintiffs would lease the Property for a period of 30 years. The defendant is 82 years old. The proposition that the 82-year-old owner of the Property acting of his own free will would enter into a lease with a term of 30 years, concluding when he is 112 years old, is bordering on being commercially and personally absurd.
10. Further, a comparison of the handwriting of the defendant across multiple documents does not provide strong support that the defendant's signature appears on the Lease Document. This will be a matter that will have to be determined at the trial but there are some real questions over the authenticity of the Commercial Lease Agreement dated 10 April 2023, the more simple document alleged to have been prepared by the plaintiffs at the request of the defendant after he did not sign the Commercial Lease Agreement and the Lease Document itself.
11. It is also striking that in none of the communications from the plaintiffs on 8 July 2023 and 21 July 2023 (in response to the defendant's notices to ask them to leave) do they refer to having a signed 30 year lease of the Property with the defendant, when that would have been the most obvious response to the defendant's attempts to remove them.
12. While the defendant admits that work has been carried out by the plaintiffs at the Property which he has known about, he contests that most of it was done in consultation with him and his approval. The Lease Document on which the plaintiffs rely (but denied by the defendant) has an explicit additional condition that required the plaintiff to obtain the agreement of the defendant to "future and minor and none minor renovations" prior to their start (it would appear that the word "none" should be "non"). There is a real question about what work was agreed by the defendant.
13. To my mind, on an interlocutory assessment of the evidence, the circumstances are more strongly characterised as an informal agreement from the defendant recorded in his email of 2 February 2023 at 9:02am for the plaintiffs to occupy the Property until 30 June 2023, which was then verbally agreed to be extended to the end of the 2023 winter ski season to allow them to operate a guest house in exchange for the plaintiffs doing work on a carpark and maintenance.
14. The further weakness in the evidence before me is the lack of any document which supports the scale of the plaintiffs' alleged spending of their savings on the work carried out at the Property. It is one thing to produce an invoice, but is quite another to produce documentary proof of payment of an invoice. These are obviously matters for the trial judge at the final hearing in an assessment of the estoppel case, but they have also given me real reason to conclude that the plaintiffs' case is not strong.
15. The note in each of paragraphs 1 and 5 of the 17 August 2022 orders made by Robb J state: (1) Notes the agreement between the plaintiffs and the defendant for the lease by the defendant to the plaintiffs of 611 Alpine Way Crackenback, being the land in Lot 79/576686 (the Property) for the period from 6 June 2023 to 6 June 2053, a copy of which is Exhibit AM-88 to the affidavit of Abby May affirmed 14 August 2023 (the Lease). (5) Notes from the grounds of the application appended to each PADVO that the defendant informed the Police that he had agreed with the plaintiffs that they could live at the Property rent free in exchange for work done on the Property by the second plaintiff and failed to inform the Police of the existence of the Lease or that the defendant had received from the plaintiffs a percentage of the booking fees for the guest house on the Property in accordance with the Lease.
16. Based on the evidence that is now before me, I consider that these each of these notes puts the plaintiffs' case far higher than is justified. When the hearing was held ex parte on 17 August 2022, Robb J did not have evidence of the denial by the defendant that he signed the Lease Document, Robb J did not have the defendant's evidence disputing the payments of a percentage of the booking fees, Robb J did not have all of the strangely emotional email correspondence which initiated the relationship between the plaintiffs and the defendant in January and February 2023, and Robb J was not able to see the stark differences when comparing the defendant's handwriting and that which appears on the Lease Document. Nor does it appear to have been explicitly drawn to Robb J's attention that the defendant is an 82-year-old man in poor health.
17. There are serious questions to be tried, but I am also satisfied that there are so many serious issues that the plaintiffs need to address to succeed in their claims for final relief that these claims cannot be considered to have strong prospects.
18. In reaching this view, I have considered the defendant's argument that the lease is unenforceable because the Local Council had not provided their consent to any subdivision of the Property under cl 2.6 of the Snowy River Environmental Plan 2013. In my opinion, such an argument is no more than contestable based on facts to be argued at the final trial rather than being a matter that weighs heavily in favour of the defendant.

Balance of convenience

1. The competing matters that I consider that I must weigh in the balance of convenience are as follows: 1. The plaintiffs say that the Property is their home and if the interlocutory injunctions are not permitted to continue, they will be excluded from it because the defendant will seek to have them evicted. Although it is not clear on the evidence that the plaintiffs are in full-time residence at the Property (particularly in light of the fact that it is used to operate a guest house), I have assumed in their favour that they treat it as their home. Although the removal of the interlocutory injunctions would not of itself require the plaintiffs to leave the Property, I consider that the practical effect of doing so would lead to that result because the defendant would then be able to seek an order removing them from it. This factor weighs in favour of continuing the interlocutory injunctions. 2. The defendant owns the Property and has done for more than 50 years. The defendant says that the Property is his home and that the presence of the plaintiffs on it prevents him from returning there, instead having to rely on the kindness of his friends to house him when he is old and in very poor health. The interlocutory injunctions that have been made do not prevent the defendant from residing at the Property. But in light of the defendant's age, ill-health and stated fears, I consider that the practical effect of the interlocutory injunctions is that they enable the plaintiffs to remain at the Property and cause the defendant not to reside there. This factor weighs in favour of discharging the interlocutory injunctions. 3. For the reasons I have already stated, the plaintiffs' case across all causes of action is not strong. This factor weighs in favour of discharging the interlocutory injunctions. 4. The plaintiffs' case fixes upon the current and proposed commercial use of the guest house on the Property for a period of 30 years. So understood, then damages might be seen as an adequate remedy for their causes of action. This factor weighs in favour of discharging the interlocutory injunctions. 5. The plaintiffs say that there has been delay by the defendant in applying to discharge the interlocutory injunctions. The usual case for delay is to weigh it as a factor in whether to grant an interlocutory injunction when the plaintiff has delayed making the application for it. Where there has been delay by a defendant in applying to discharge an interlocutory injunction as alleged here, delay only operates to the extent of time that the status quo secured by the interlocutory injunction already made has remained in place. In this case, the defendant's delay has been explained by his significant ill health. The plaintiffs have not pointed to any particular prejudice that they have suffered by the delay, such as increased work done or expenditure on the Property. I regard delay as a neutral factor in the exercise of the discretion whether to discharge the interlocutory injunctions. 6. There are third party interests which will be affected by the discharge of the interlocutory injunctions because there is one booking at the Property for 4 nights from 29 December 2023, with the next set of bookings not occurring until July - September 2024 (totalling 19 nights). Keeping the interlocutory injunctions in place for the present time maintains these bookings. But on the other hand, a discharge of the interlocutory injunctions can be fashioned to enable the booking from 29 December 2023 to 2 January 2024 to be honoured but then lifted with the final trial (if expedition is granted) to occur in time before the next set of bookings are required to be honoured. The defendant has indicated that he would support a discharge of the interlocutory injunction which enabled the immediate booking to be met. Accordingly, the third party interests are a neutral factor in the exercise of the discretion whether to discharge the interlocutory injunctions. 7. The plaintiffs say that the discharge of the interlocutory injunctions does not of itself stop the plaintiffs from continuing their lease/business, and doing so would serve no purpose. They submit that the intent is to enable the police to attempt to have the plaintiffs removed from the Property and if that failed there would be nothing to stop the defendant again purporting to terminate the plaintiffs' occupation of the Property. In accordance with the principles summarised in Lakis at [25]-[27], the onus rests on the plaintiff to justify the continuation of the interlocutory injunctions and therefore their utility. In my view, there is no onus upon the defendant to demonstrate utility in having interlocutory injunctions made ex parte against him discharged. While the interlocutory injunctions remain in place, the defendant is prevented from exercising his rights in particular respects. If the discharge of the interlocutory injunctions enables the defendant to exercise his rights, then there is utility in doing so. This factor tends in favour of discharging the interlocutory injunctions.

Undertaking as to damages

1. The defendant asserts that whilst the plaintiffs have given an undertaking as to damages, their capacity to honour it is doubtful because searches have revealed that the plaintiffs do not hold any real property and they did not appear to have the means to satisfy the undertaking as to damages. This is said to arise by reason of inference due to the plaintiffs' failure to respond to the letter dated 14 December 2023 from the defendant's solicitors to the plaintiffs' solicitors. In light of the fact that this letter was sent on 14 December 2023 in relation to a hearing which took place before me on 15 December 2023, I am not prepared to draw any conclusion about the plaintiffs' ability to support the undertaking as to damages.
2. I do not consider that I have sufficient evidence which would safely cause me to conclude that the plaintiffs do not have the means to satisfy the undertaking as to damages that they have given. This is particularly so when no attempt was made by the defendant to provide an outline of the quantum of what those damages might be.

Conclusion on balance of convenience

1. Balancing each of these matters, I consider that the balance of convenience and justice lies in favour of discharging the interlocutory injunctions. I do not propose to order that the discharge occurs immediately because I consider that the plaintiffs should be provided with sufficient time to leave the Property and secure accommodation elsewhere (which might be difficult during the impending Christmas-January holiday period) and also to ensure that the immediate booking is met. The defendant submitted that he was prepared to agree to a concession in any orders which enabled the bookings in the immediate future to proceed.
2. I recognise that in reaching this conclusion I am ordering a change in the current status quo of the plaintiffs remaining in the Property and the defendant being out of the Property but I am convinced that the justice of the circumstances require that to be done. In effect I am balancing the interests of a defendant who is 82 years old, in very poor health and who wants to return to the home he has owned for over 50 years against the interests of the plaintiffs who chanced upon the Property through an act of kindness by the defendant and primarily seek to exploit it for commercial gain as a guest house.
3. For this reason, I consider that the discharge of the interlocutory injunctions should occur with effect on and from Monday, 29 January 2024.

Jurisdiction of the Local Court

1. In light of the debate which occurred before me regarding the alleged effect of the 17 August 2023 orders on the ability of the Local Court to exercise jurisdiction under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), I want to make it clear that nothing I have said in this judgment or in the orders I propose to make as a result of it has any effect on the exercise of the jurisdiction of the Local Court under that statute or any other.
2. In light of this, I propose that it is appropriate for a notation to be made to any orders I make in a modified form to that requested by the defendant as set out below: These orders do not prevent the Local Court of NSW exercising any powers conferred upon it by the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Expedition

1. If either of the parties wish to apply for an expedited final hearing, they should do so by making an application in the normal way by notice of motion supported by affidavit evidence in accordance with the requirements of Practice Note SC Eq 8 [8]-[10]. I note that the defendant sought an order for expedition of the final hearing before me, so I have presumed that he will make that application in the usual way.
2. Whether expedition is granted, and if so, how quickly an expedited hearing can be fixed will be matters for the Expedition Judge.
3. To facilitate such an application, I will direct that any notice of motion for expedition be made returnable before the Expedition Judge on Friday, 2 February 2024 and will place the proceedings in the Expedition List on that date in anticipation of such an application being made.

CONCLUSION

1. I was invited by the defendant to delete notations 1 and 5 in the 17 August 2023 orders. I do not consider that I should do so given that they set out the noted basis on which the 17 August 2023 orders were made by Robb J at that time. In any event, in light of the conclusions I have reached above and the orders I propose to make, any such deletions are otiose.
2. The defendant submitted that if orders are to be made in his favour, he is prepared to give the following undertaking: Until the determination of these proceedings or further order of the court, the defendant undertakes not to sell, dispose of, or enter into any leases in respect of the whole of the property located and known as 611 Alpine Way, Crackenback (Lot 79 in Deposited Plan 756686).
3. In light of the conclusions I have reached, I will note that undertaking in the orders I propose to make.
4. For the reasons set out above, I will make the following orders: 1. Orders 8, 9, 12 and 13 of the orders made on 17 August 2023 be discharged with effect on and from 29 January 2024. 2. Stand the proceedings over for consideration of any application for an expedited final hearing in the Expedition List before the Expedition Judge at 10am on 2 February 2024. 3. Notes that these orders do not prevent the Local Court of NSW exercising any powers conferred upon it by the Crimes (Domestic and Personal Violence) Act 2007 (NSW). 4. Notes that until the determination of these proceedings or further order of the court, the defendant undertakes not to sell, dispose of, or enter into any leases in respect of the whole of the property located and known as 611 Alpine Way, Crackenback (Lot 79 in Deposited Plan 756686). 5. Grant liberty to the parties to apply on 2 days' notice. 6. Costs reserved. 7. These orders are entered forthwith.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2023