Merl by her Tutor Helga Jenkins v Andrew Merl

The title of the plaintiff to bring proceedings

1. In his defence (Court Book ("CB"), Tab 3, pp. 7 - 9), prepared before he had secured representation by Ms Merrick, solicitor, the defendant pleaded that any question as to the validity of the lease should be determined by the New South Wales Civil and Administrative Tribunal before whom he had lodged an application listed for hearing on Thursday 14 April 2022.
2. Mr A Crossland of Counsel, who appears for the plaintiff with Mr J Widjaja, drew my attention to s 119 Residential Tenancies Act 2010 (NSW) which is in the following terms: A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement. He submitted that where, as here, the validity of the purported residential tenancy agreement was the sole substantive issue in the proceedings, s 119 did not apply. That is, the expression "a residential tenancy agreement" in s 119 is to be understood as meaning a valid residential tenancy agreement duly made according to law and to which the provisions of Division 2 of the Residential Tenancies Act apply. Mr Crossland argued that a lease granted by one only of two joint tenants was not valid. He referred to Valverde v Inch [2018] NSWSC 366 at [83], where Lindsay J approved the following passage from BA Helmore, The Law of Real Property in New South Wales (Law Book Co., Australia, 2nd Edition, 1966 pp. 267 - 268). "The essential features of joint tenancy are what are ordinarily called the four unities , viz, unity of possession (…which is common to all forms of co-ownership), unity of title, unity of time, and unity of commenced interest. Unity of title means that the co-ownership must be created by the same deed, will, or other instrument, or by simultaneous adverse possession. Unity of time means that the interests of the tenants must vest in them all at one and the same time. This does not necessarily follow from unity of title, because by one deed an interest may be given to A and the eldest son of B who is not yet born - here there is unity of title but not of time. .. The fourth unity is unity of interest. This means: (i) that the tenants must have the same kind of estate, so one cannot have an estate in possession whilst the other has an estate in remainder, and one cannot have an estate for life and another an estate in fee simple, (ii) they cannot hold in different proportions, since they are not holders of distinct shares, that each one is entitled to the whole. …, (iii) they must all concur in any legal act affecting the subject matter, eg. a lease. One joint-tenant cannot lease the land without the concurrence of his co-owners…. From the unity of interest springs the most characteristic quality of joint tenancy, survivorship or the jus accrescendi …."
3. I did not understand Ms Merrick to contest these statements of principle. She did question whether the situation called for an urgent hearing at such short notice and argued that the lease was validly granted. She did not suggest that s 119 Residential Tenancies Act created a legal bar to the plaintiff seeking her remedy in the Supreme Court in the present circumstances.

Background facts

1. Regrettably, this is a dispute within a family. The subject land is owned by elderly parents, Joan and Manfred Merl as joint tenants. Without intending any disrespect, for clarity I will refer to each member of the family involved by his or her first given name. The proceedings are brought on Joan's behalf by her Tutor Helga Jenkins (nee Merl). Manfred is not a party, a point to which I will later return.
2. Helga is one of Joan and Manfred's six children. So is Andrew Merl, the defendant. Andrew seems to be supported in his resistance to the proceedings by their brother, John, who now resides in Western Australia. Helga is supported by their brother Michael. Helga and Michael signed the contract of sale on the authority of a power of attorney granted to them by each of Joan and Manfred. Other siblings, Peter and Karin, on the evidence before me, do not appear to have taken sides in the dispute.
3. Joan proceeds by Helga as a tutor because she has a past history of Alzheimer's Disease, first diagnosed in 2014: Professor Susan Kurrle, report dated 6 April 2022, CB, Tab 16 p. 193. The diagnosis was made by Professor Kurrle, who states: "[Joan] has continued to deteriorate very gradually both cognitively, and in day to day function. Prior to her hip fracture she was living at home on [xxxxx] Island with significant assistance and prompting from her husband Manfred and from family members". Professor Kurrle examined Joan on 15 October 2021 and on 31 March 2022 and found her to have significant cognitive impairment in terms of short-term memory and orientation in time and place. On the re-examination of 31 March 2022, Professor Kurrle said: "[Joan] clearly had short-term memory and minimal orientation in time and place". Professor Kurrle described a "progressive neurodegenerative condition". Despite the gradual nature of Joan's deterioration she "now has moderately severe dementia with significant cognitive impairment" which will gradually worsen. Professor Kurrle expressed the following final opinion (CB Tab 16, p. 195): "I do not believe that [Joan] understands the issues related to the sale of the house and she would have had the capacity in the last few weeks to sign a lease agreement in favour of another person." Professor Kurrle is the current professor and healthcare of older people in the Faculty of Medicine at the University of Sydney.

Joan and Manfred move to Starrett Lodge

1. In his affidavit of 25 March 2022 (CB Tab 7, pp. 133 - 135; "Michael's affidavit"), Michael states Joan and Manfred resided at the subject property "for approximately 20 years".
2. In his affidavit of 1 April 2022 (CB Tab 9, "Andrew's affidavit"), Andrew states that on 4 October 2021 Joan fell and broke her hip. She was taken by ambulance to Hornsby Hospital. Professor Kurrle states (CB Tab 16, p. 194) that Joan developed delirium after surgery, but recovered quite well from this. Andrew continues that "a doctor" recommended that Joan go into respite care once she had recovered from surgery rather than return to XXXXXX Island. She underwent rehabilitation at the Mt Wilga Rehabilitation Facility and then from 15 November 2021 to 2 February 2022 at the Transitional Care Unit at Woy Woy Hospital (CB Tab 16, p 193). She remained there as at 7 December 2021 when the purported lease was signed. These details are confirmed by Manfred in his affidavit of 1 April 2022 (CB Tab 12). According to Manfred, it was a condition of Joan's release from hospital that she should go into respite care. To be with her, Manfred decided he would also move into the same aged care facility, Starrett Lodge, which was organised for her parents by Helga. He moved there on 1 February 2022 and Joan on 2 February. They were allocated adjoining rooms. Professor Kurrle states that Joan is independent with toileting and nutrition, but requires assistance, inter alia, with showering and dressing. Joan "was reasonably mobile using a four-wheel walking frame" (CB p. 194).
3. Michael states that he and Helga had several discussions about Joan and Manfred going into the facility and about the need to sell the home. On a date he cannot precisely recall except to say it was in January, an exchange to the following effect occurred: "Helga: It's going to cost mum and dad $525,000 each for the refundable accommodation deposit at Uniting Starr Lodge (sic). We will need to sell the house in order to fund it. Andrew: Yes. I agree."
4. Helga confirms such a discussion in her affidavit of 25 March 2022 (CB Tab 6, p. 19 [11]).
5. During her examination of Joan on 31 March 2022, Professor Kurrle asked a number of questions of her which are pertinent to these proceedings. At the risk of some repetition, it is perhaps instructive to set out the passage from her report (CB Tab 16, p. 194) in full: "On examination of [Joan] on 31 March 2022, she was poorly orientated in time and place, but was able to name her husband and her daughter. She could not remember the names of her other children or any of her grandchildren. She was reasonably mobile using a four-wheel walking frame. I put a number of questions to [Joan]. I note the following answer to those questions. I asked [Joan] about where she was currently living, and she said she had moved from XXXXXX Island and was very happy in her new home. She was unable to name the facility. She said that she was not coping previously on XXXXXX Island and was pleased to make the move. She understood that the house had been sold and that was necessary. She said she did not wish to return there. I asked [Joan] about a lease that she had signed. She had no memory at this and looked at me blankly, and then replied that I would need to talk to Manfred and Helga about that. When I asked her about her husband's Power of Attorney and about the change in that she said that she did not know anything about that and that I would need to speak to Manfred about that."

The question of the lease

1. In his affidavit, Andrew states that he had lived and worked on XXXXXX Island since 1993. On 17 August 2021, the owner of the property he had rented on the island for 15 years died. On 25 August 2021, her son informed him that the property would be sold and Andrew "would in due time need to find alternative accommodation". He said that Joan and Manfred agreed he could reside with them "until another property came up on the island" for rent, I infer. He moved in with his parents on 1 September 2021.
2. Following Joan's fall, Helga came up from Tasmania "to organise [Joan's] respite care facility". Andrew moved out and stayed with friends on the island so Helga could stay at the property, "as my sister, Helga, and I do not get along" (Andrew's affidavit [11]). In November 2021, Andrew's work on the island slowed "because of Covid restrictions". It was necessary for him to claim government benefits. He stated (Andrew's affidavit [12]): "The claim required my current lease agreement, if I was to claim assistance with rent. My Dad [Manfred] was happy for me to have a lease on the property".
3. It is evident that when this discussion took place Andrew was not residing at the subject property. Neither was Joan as she remained at Mt Wilga.
4. Andrew states that he approached Elaine Fitzpatrick, areal estate agent, "to write us up a lease". In her affidavit of 1 April 2022 (CB Tab 11, p. 160), Ms Fitzpatrick confirmed she was approached by Andrew on 1 December and states that on 7 December 2021, Andrew and Manfred signed the lease agreement. The Court Book also contains an exclusive Management Agency Agreement signed by Manfred and Ms Fitzpatrick on "01/12/2021" (CB Tab 13, pp. 166 - 172). The date adjacent to Manfred and Ms Fitzpatrick's signature is printed. The document also contains the signature "Joan Merl", which I take to be Joan's signature from my comparison with Joan's signature and initials as depicted on the photocopied Power of Attorney at CB Tab 6, p. 29. However, the date 1/12/21 is handwritten, not printed. As it is common ground that on 1 December 2021 Joan remained an inpatient, it is clear her signature was added at some unspecified later date.
5. Andrew and Manfred agreed that they signed the residential tenancy agreement on 7 December 2021. Andrew states that Joan was at Mt Wilga (CB Tab 9, p. 3 [14]). She had moved to Woy Woy Hospital by then. Manfred's affidavit evidence is to the same effect (CB Tab 12, [3]). He states: "Joan was in rehab at that time and did not sign the lease. Joan has since signed the lease." Manfred does not say when Joan signed the lease, or in what circumstances. He does not say that he witnessed her signing the lease. It is evident that Joan's signature was not placed upon the lease prior to the exchange of the contracts for sale. A copy of the Tenancy Agreement is attached to Helga's affidavit (CB Tab 6, p. 131) which does not contain Joan's initials which appear on the extract of the Residential Tenancy Agreement annexed to Andrew's affidavit. It is apparent that Ms Fitzpatrick does not claim in her affidavit to have had actual authority to sign on behalf of Joan, although her signature apparently appears in the place where Joan was supposed to sign. Under the terms of the Management Agreement (CB 13, p. 174), Clause 14.14 and Item E to the Schedule (CB Tab 13, p. 166), Ms Fitzpatrick had authority to sign tenancy agreements, however, as I have said, Joan had not signed that agreement as at 1 December 2021 and it is not known when she did.
6. From the affidavit of Rodney Lewis, Joan's solicitor, sworn on 7 April 2022, it is quite clear that Joan had not signed, or initialled rather, the Residential Tenancy Agreement before the exchange of contracts for the sale of the property. Indeed, she had not initialled the document prior to 11 March 2022 on which day a copy of the Residential Tenancy Agreement was provided to him by Ms Fitzpatrick. I make this finding from my own inspection of the copy attached to Mr Lewis's affidavit as Annexure C.
7. It's also obvious to me that Andrew did not take possession of the property immediately upon execution of the Residential Tenancy Agreement. I have said already that he was then living elsewhere. Helga has exhibited a printout of text messages exchanged between her and Andrew commencing at page 17 of the exhibit to her affidavit. These appear at CB pp. 37 - 44. These contemporaneous records confirm that Andrew was not living at the property and indeed was probably residing at the premises he had leased for 15 years prior to the death of the owner. On 3 February 2022, he texted Helga: "I've got to be out of my place by the 16th of next month. My landlady passed away just before Xmas so the kids decided to sell up. Unfortunately because the island is water access only all banks seem to want a 40 percent deposit so it looks like the island dream is unrealistic for us".
8. On 4 February 2022 he wrote: "Sorry Helga I'm just scared at the moment, I have just under 6 weeks before I am out of my place on the island. I don't think moving in with Varry and her kids is a sustainable option (there house is crowded enough). I put a proposal that I'm going to put towards mum and dad today, I am actually in need of help. The proposal is $500K with the other $100K we want to put up a granny flat in the backyard for potentially dad or any family who want to visit. Because its less than they would get on the market, I'll be putting the house into a trust that you and Michael can sign off on so it goes to next generations. Varry is happy with that, her kids are sorted. Varry and I would also like to give you and Brian $10K cash to cover the work you've done on the island and hopefully cover some of your removal costs (I can't imagine moving from Tasmania was cheap). I'd also forfeit any money from mum and dad's will when they pass. I'd be happy if you could share this with the rest of the Merl's (sic). I appreciate everything you and Brian have done for mum and dad kiss" Varry is Andrew's life partner.
9. On 6 February 2022, Andrew texted Helga stating, "I have to start moving my stuff out of my place in the next few weeks." The following day he offered to purchase the property for "$600K". It is clear to me that Andrew was not living at the property. Up until this stage Andrew had not mentioned the lease.
10. On 7 February Helga texted: "Dear Andy. In the course of organising the sale of mum and dad's house, Michael and I have received legal advice that we must act in mum and dad's best interest which includes using standard channels to sell the house at market price. We are also obliged to put locks on the doors and ensure their house is safe and secure. It will not be possible for you to move any of your furniture or stuff in here during the sale period so you won't be able to have your clothes dryer delivered here. As an attorney I will be staying in the house whilst the house is being sold to ensure the house is safe, clean and presentable for when people look through it and attend to all the sale requirements. Both Michael and I thank you for your understanding". Andrew responded that he was, "absolutely gobsmacked".
11. I infer that Helga's text message of 7 February 2022 galvanised Andrew to action, for he texted her on 8 February 2022 referring to Helga "dump[ing] under my house" and asked her "to come and remove any crap you've left under my deck and I'd like you to leave my photos and lawn mower. Just because I can't bear the thought of accidentally bumping into you. I'll stay away from the island until this is sorted" (my emphasis).
12. On 9 February 2022, he texted that at Manfred's request he had a solicitor draw up a document "that absolves you from powers of attorney"(sic). It was not until 3 March 2022 that he mentioned "the 3 year lease dad signed for me before you started your nonsense". And on 5 March 2022 he texted, "Dad and I sorted a lease agreement before you and [the real estate agent] started playing games". This was obviously the first Helga had heard of the lease because on 7 March 2022, she asked for a full copy of every page of the lease urgently observing, "a lease like that could change the situation and affect the sale". On 8 March 2022, Andrew texted "I've had dad's legal team look it over and as far as the law is concerned, I am a tenant with a 3 year lease. They've agreed not to go ahead with the caveat now that I'm living in the house" (my emphasis). This seems to have been the first occasion in which he claimed to be living there.
13. On 17 March 2022, Michael texted Andrew stating, "if you are still in mum and dad's house you will need to leave by the weekend". Andrew responded immediately stating "I'm still on a current lease … there are currently no other rentals on the island so definitely won't be moving out of here on the weekend".
14. Andrew remains in possession of the property.

Determination

1. It is common ground amongst all family members that it was necessary for the property to be sold to fund Joan and Manfred's entry into Starrett Lodge. The essence of the dispute is that Helga and Michael, acting under the powers of attorney, were desirous of achieving market value through an arms-length transaction involving a real estate agent and Andrew and John wanted to keep the property in the family. John supported Andrew's proposal that Andrew purchase the property, even though Andrew's capacity to borrow was limited. As he himself, acknowledged, the best he could raise was $600,000 which he knew to be well below market value. John was prepared to assist Andrew in an unspecified way. No figure that John was willing and able to contribute is mentioned in the evidence before me.
2. It's also notable, as I have pointed out that the discussions about "the lease" were initiated for the purpose of equipping Andrew with the ability to obtain a rental allowance as part of his government benefits when his work on the island dried up due to Covid restrictions.
3. Manfred was to a large extent, as might happen to a loving parent, caught in the middle. He knew the property had to be sold to fund his and Joan's care. But he had an emotional attachment to the idea that the property could be kept in the family through Andrew's purchase with John's help. I should say from Professor Kurrle's report, even with her cognitive disability due to her neurodegenerative condition, Joan had a good understanding of the need for the property to be sold.
4. Given the urgency of the matter and the celerity with which the parties were able to prepare the case, Mr Crossland and Ms Merrick were content for the matter to proceed before me on documentary evidence, without requiring any witness to be cross-examined. I therefore have not had the benefit of seeing and hearing any of the significant witnesses give oral testimony. In the absence of cross-examination, I have had to do my best to reconcile the obvious inconsistencies in the evidence by reference to such contemporaneous documents as there are, and the apparent logic of events.
5. I regard it as very significant that the genesis of the suggestion of a lease over the property was Andrew's application for government benefits. I am satisfied that his affidavit is erroneous as to his place of residence in the latter part of 2021. As he has not given evidence and been cross-examined, I of course cast no aspersions upon his credit. But it seems to me the content of his text messages to Helga provides a more reliable account of his whereabouts and the chronology of salient events. It is clear to me from the text messages that he remained in his long-term residence as at February 2022 and the owner's family only required him to vacate those premises over the next few weeks from then. When he was negotiating with Helga over his proposed purchase, he at no time mentioned that he had a lease over the property until after the property was sold under the contract, as it happens to a person who was an acquaintance of Helga's. Raising the lease in this context had the air of an afterthought about it for the purpose of attempting to derail the sale.
6. Although I accept Professor Kurrle's uncontradicted expert evidence, it seems to me that the significant factor is not whether Joan had the cognitive capacity to understand the lease, but whether she had ever previously heard of the suggestion that a lease of the property had been granted to Andrew. From Professor Kurrle's account of their conversation, Joan obviously understood the concept of a sale and why it was necessary. In these circumstances, with respect, it is difficult to fathom why she would not understand a lease. More likely, in my view, she looked blankly at Professor Kurrle when asked about the lease because she had never heard of it before. This does not seem to me to be a matter which would be governed by short-term memory loss. More likely, Joan had never heard of the lease because she had not even then initialled it, probably because she had not been asked to and the arrangement was made between Manfred and Andrew while she was in hospital without her knowledge.
7. In my opinion, the better view is that the Residential Tenancy Agreement document was signed by Manfred and Andrew to assist Andrew's application for government benefits. Viewed objectively, there was no intention to create legal relations binding between them. This was a purely family arrangement for the purpose I have identified. There is no persuasive evidence that Andrew ever took up residence before March 2022. The persuasive evidence is the other way. There is no evidence whatsoever from Andrew, Manfred or even Ms Fitzpatrick of the payment and receipt of any rent. Ms Fitzpatrick was involved to give "the arrangement" a businesslike appearance given the Residential Tenancy Agreement was obviously between relatives. This consideration otherwise may have raised questions in the mind of any person checking the details of an application for government benefits. The probabilities are that Joan's signature on the Agency Agreement was put there at about the same time as her initials on the purported Residential Tenancy Agreement, which on the evidence I accept was certainly after 11 March 2022 and probably after 31 March when Professor Kurrle re-examined Joan. I am satisfied on the balance of probabilities that Andrew is not in possession of the property under a lawful Residential Tenancy Agreement. This is sufficient to dispose of the case on a factual level.
8. However, Mr Crossland argued in any event, as I have said, were it otherwise that Manfred acting alone could not grant a valid lease to the detriment of Joan's right to possession in particular because of that aspect of the unity of interest which characterises a joint tenancy requiring all joint tenants to concur in any legal act affecting the subject matter as discussed by the learned author B.A. Helmore as set out in the extract approved by Lindsay J in Valverde, set out above.
9. Mr Crossland also referred me to State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247. That case concerned, inter alia, the legal incidence of a tenancy in common, as Lindsay J put it, "a form of co-ownership" to be distinguished from a joint tenancy. In Koumdjiev Hodgson JA (Beazley JA and Hislop J agreeing) at [32], said that each tenant in common is entitled to possession of the property and to the use and enjoyment of it in a proper manner. "If one tenant in common excludes the other from the property, the latter has a remedy in an action for trespass". Moreover, one tenant in common can transfer his or her interest to another person, and may even lease the interest to another person, but not to the exclusion of the right of possession of the other. Albeit obiter dictum, Hodgson JA said at [33]: "If such a lease is a periodic tenancy, there would appear to be no basis on which the tenant in common, who was not the lessor could terminate it by notice. By contrast, where there is a joint tenancy, the only lease that can be granted (in the absence of a severance of the joint tenancy) is a lease of the property granted by both joint tenants; and if that lease is a periodic tenancy, then it can be terminated by notice from one joint tenant, because its continuance requires the occurrence of all parties: Doe D. Aslin v Summersett (1830) 1B & Ad 135; Parson v Parsons (1983) 1 WLR 1390." (My emphasis) I re-emphasise that the only lease that can be granted is a lease granted by both joint tenants. On the findings of fact I have made, if the purported residential tenancy agreement, contrary to my interpretation, is intended to create legal relations between Manfred and Andrew it is ineffective to achieve that purpose because the lease was not granted by both Manfred and Joan.
10. Accordingly, Andrew has no title justifying his possession of the property. For this reason also, Joan is entitled to an order for possession.

Final observation

1. As I have said, Manfred was not made a party to the proceedings. He is neither plaintiff nor defendant. He is clearly aware of the proceedings and of the nature of the dispute because he provided an affidavit in Andrew's case. Speaking generally, Rule 6.24 Uniform Civil Procedure Rules 2005 (NSW) would suggest that Manfred should have been joined as a defendant (Rule 6.24(2)). Mr Crossland relied, however, upon Commonwealth Bank of Australia v McDonald [2000] NSWSC 553 to argue that Manfred's joinder was unnecessary. There, Young J (as his Honour then was) pointed to the unity of possession as it applies to co-owners who are tenants in common. His Honour pointed out "that each co-owner is as of right as much entitled to possession of any part of the property as the others". From this it is argued that any co-owner may assert his or her right to possession independently of any other co-owner, whether by tenancy in common or, as here, joint tenancy, and accordingly Manfred was not a necessary plaintiff or defendant. Even so, given that the lease upon which Andrew relied to resist Joan's claim was purportedly granted by Manfred, it would have been permissible, perhaps desirable to joint him as a defendant under Rule 6.24(2), if for no other reason than to bind him to the outcome.
2. In my opinion, Manfred ought to be joined. I accept, as I have said, he is aware of the proceedings and of the issues and he has not sought to intervene. On the findings I have made and the conclusions I have drawn his active participation in the proceedings would not have led to any different result. But he should be joined so that he too is bound by the decision. Obviously, this means that judgment cannot be entered until he is served and no writ for possession may issue until entry of judgment.
3. My orders are: 1. Judgment for the plaintiff for possession of the whole of the land in Folio Identifier XX/XXX02, being Lot XX in Deposited Plan XXXXX and known as 6 XXXXXXX Street, XXXXXX Island New South Wales XXXX; 2. Direct that the plaintiff file and serve an Amended Statement of Claim joining Manfred Richard Merl as a second defendant by 14 April 2022; 3. Judgment under Order 1 may be entered upon the filing of an Affidavit of Service of the Amended Statement of Claim on Manfred Richard Merl; 4. The plaintiff has leave to issue a writ of possession forthwith upon the entry of judgment; 5. The writ may not be executed prior to 28 April 2022; 6. The defendant, Andrew Merl, to pay the plaintiff's costs of the proceedings.

Amendments 13 April 2022 - Paragraph 10 - Quote from Professor Kurrle's report anonymised. 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: 13 April 2022