Mine Subsidence Board v Frank and Louisa Kozak

Judgment

1. At the conclusion of the hearing of this case, a suit for possession of land in Thirlmere owned by the plaintiff, the second defendant, Mrs Louisa Kozak, asked to be heard. There was no objection by counsel for the plaintiff. Mrs Kozak said: "Sorry, I will make it brief, your Honour. I don't like speaking like this. But over the last 10 years this has caused not just myself, but my husband and my whole family a lot of grief. The plaintiffs are saying that they can get all these experts to fix these problems. They have promised that so many times and yet they have never followed through, ever. And whatever faults there are, they are going to encounter more faults because of the shonky builder that they hired. This is not our fault. We did not hire the builder, they did. So I don't understand why it's no financial loss to the Mine Subsidence Board. Go back to the builder. If I hired a builder and he didn't do the work, I would go back to the builder. If he didn't do it, I would going back to the Builders Licensing Board, which I have tried, I have tried to go to them. No, technically I didn't hire the builder. I have tried to go to the Council. The Council say no, you didn't hire the builder. They did. Sorry, they did. Go back to the builder. It's no financial loss to them. Nothing to the State Government. This is the part I don't understand. And they want me to accept a faulty product. I had to get out of the house that had a cracked foundation, leaking roof, doors that wouldn't close, multiple, multiple faults. Now they want me to move into a brand new house that has got cracks in the foundation, a leaking roof, doors that don't open and multiple other faults. Why should I accept something and why should I be told to take the money and fix it myself when I didn't cause the damage? It's logic. If I go and buy something and it's not right, I don't go back and say "don't worry, I will buy another one". Fix it. Fix the stuff ups that you did. That's all we are asking. I am not asking for anything else. And all I ask is for what was promised to us. We were told that we would have a brand new house to go to. We wouldn't have to do a thing. That was it. We went and saw Chris Hartcher after three years of putting up with this and nobody doing anything about it and he promised that all our out of pocket expenses would be paid as well as what John Culbert said. And he said that he would sit down at the end of all of this and talk about fair and reasonable compensation, because no person would think that that was fair and just of what we have been put through. No reasonable person should think that that was right. Nobody would put up with it for this long. I am sorry, but I am very emotional and it's not fair. We didn't cause the problems. They did. It's a Government department. They had a duty of care. They didn't hold their end up of the bargain. I have maintained that property at Thirlmere as best I could and I have done more, but they haven't held up their end. No, they haven't. All they have done is just bully us and try and manipulate us and make them look like they are the perfect ones. And we are the victims here. We didn't ask for this. And I don't and I shouldn't have to put up with it. I am sorry, your Honour, I didn't mean to become so emotional but it's just gotten too much for me." [1]
2. It was obvious to all in the courtroom that Mrs Kozak was greatly affected by the history of events that gives rise to the present proceedings. She delivered her address with passion and anger, at times directing her comments across the bar table to the legal representatives of the plaintiff (who, it must be observed, are not to blame for the events leading to the litigation). Having reviewed the material in the court book, which encompasses events taking place over a period of around a decade, during which the Kozak's have been dislocated and disappointed, the emotion exhibited by the second defendant is understandable. At the commencement of the proceedings, her husband (the first defendant, Frank Kozak) indicated that he had a medical certificate providing evidence of the stress and anxiety occasioned to Mrs Kozak by the proceedings and their history. In a display of fairness and compassion, counsel for the plaintiff elected not to cross examine Mrs Kozak on the contents of four affidavits which she had sworn jointly with her husband.
3. In spite of any sympathy I may have for Mr and Mrs Kozak, and some unsatisfactory aspects of the chronology of events and the conduct of one (or more) of those employed or engaged by the plaintiff, I am unable to discern any legal basis upon which I can do other than find for the plaintiff and make the orders sought in the statement of claim. Those orders, in a nutshell, are for possession of the plaintiff's land. The defendants have occupied that land since March 2011.
4. I propose to enter judgment for the plaintiff and for possession of the land comprised in the Folio identifier to 242/1006984, being the land situated at, and known as, 10A Mason Street Thirlmere NSW. The plaintiff does not seek costs. Accordingly, in spite of the plaintiff's success on the substance of the case and what appear to be generous offers of settlement, there will be no order as to costs. These are my reasons for making the order for possession. There is no reason, apart from the admirable stance taken by the plaintiff, for the absence of an order that the defendants pay the plaintiff's costs.

THE EVENTS GIVING RISE TO THE PROCEEDINGS FOR POSSESSION

1. Both parties have provided me with chronologies of the events of the last ten years that bring them into conflict in this Court. [2] Those chronologies are generally consistent with one another, although the parties place emphasis on different events. The Court received a court book including affidavits and a number of documents establishing the factual matrix of the present matter. The defendants also read a fourth affidavit (sworn since the preparation of the court book), much of which must be treated as argument. It is unnecessary to set out the full details of the facts that give rise to the case, or to restate the extensive chronologies and timelines that have been provided by the parties. However, it would be remiss not to acknowledge the work that both parties have put into the preparation of the matter and to express my gratitude for those efforts. There were a number of objections taken to parts of the defendants' affidavit evidence. Some of the evidence was admitted on a provisional basis. In view of the decision that I have reached on the ultimate issue, it is unnecessary to resolve those objections.
2. The dealings between the parties commenced at some time prior to January 2007 when damage was occasioned to the family home of the defendants, which is situated in Tahmoor NSW. The defendants built the home themselves and lived there for many years, raising their children and establishing what I take to be a beautiful garden. The garden featured a number of well-established and valuable plants.
3. As a result of the damage caused to their home by the mining activities, the defendants lodged a claim with the plaintiffs on 19 January 2007. The plaintiff is the Mine Subsidence Board, a body corporate established under the Mine Subsidence Compensation Act 1961 (NSW) ("the Act"). Its function includes managing a fund contributed to by mining companies and collieries. The fund exists to compensate homeowners (and others) whose property is damaged as the result of mining activities. There is no dispute that the claim lodged by the plaintiffs was a valid one. They were entitled to compensation and the Act provides a means by which they could obtain compensation without the need to resort to litigation against the mining company responsible for the damage. Over the next two to three years, a number of engineering reports were prepared in order to assess the nature and extent of the damage to the defendants' home and the best way of rectifying the problem. The Act provides in s 13 that the Board may, in lieu of making payments, do: "such works as may be necessary to restore the damaged land or improvements to a condition as nearly as practicable equivalent to that in which such land or improvements were before the damage to such land or improvements and relatives."
4. The damage to the plaintiff's home was so extensive that a decision had to be made as to whether to undertake work rectifying the existing house or, alternatively, to demolish the existing dwelling and build a new one. That was not a straightforward decision and I accept that the defendants' preferred position, at least initially, was to rectify the existing building. I also accept the evidence of the plaintiff's witness, John Leslie Culbert, that his opinion was that rebuilding the existing premises was impracticable. As to this, his evidence at the hearing included the following: "Q. Do you recall us informing you that we requested that the house be rebuilt? A. I did refer to something like that and I explained to you that I personally didn't think it was possible because of Jones Nicholson's report. They wanted a full grid system footing put underneath the house and I think I actually informed you how could I get under the house with only about 600 ml clearance at the front of the house to dig these footings and actual so the basis of my recommendation was purely made on the assumption of the ability of a builder to be able to do the type of work that Jones Nicholson required. Q. So in effect the whole foundation had to be redone, the walls re skinned, it was a major project? A. It was. Q. Now by rebuilding the house, it would have cost considerably more than just knocking the house down and building a new one? A. That's - without getting a tender, that would be hard to say. Q. But do you recall that that conversation - when you told us that if we wanted it rebuilt it could be done? A. I did make that to you. I said if you wanted the house rebuilt you as the owner had that choice and I would have to - I would then stop the planning process and referring it back up the line which would then have to go back up the line for approval and for them to sort out what they were going to do with it. I wasn't in the position to make that decision. Q. But do you recall stating that it would take longer and cost more to repair the house than construct a new one? A. I should imagine it would have, yes. Q. So in your opinion, by us allowing a knock down rebuild, the Mine Subsidence Board actually had a financial gain? A. I don't know. I couldn't say for sure because, as I say, I don't know what the cost of the repair would have been. Q. The submissions to the Mine Subsidence Board, a minute paper submitted to the Mine Subsidence Board on 17 June 2010, there is a paragraph there that says: "The repair process recommended by the engineers along with the total brick skin replacement, internal repairs to most of the walls, tile areas, make this rectification process uneconomical."
5. The last part of the cross-examination that I have just recounted was based on a Minute Paper dated 17 June 2010. It was signed by Mr Culbert and endorsed by the Chief Executive Officer, a Mr Cole-Clark. [3] In re-examination, this issue was explored further: "Q. Can I take you back it page 347? Can you explain what you mean when you said that "the repair process recommended by the engineer along with the total brick skin replacement, internal repairs to most walls and tiled areas makes this rectification process uneconomical", what does that mean? A. Well the engineer had pointed out the fact that every one of a slip appears underneath the house, bar from one, was undesirable, in that it didn't conform to the Australian Standard for verticality. It also reported the fact that I think, well, I know it was about 41 percent of the walls were out of verticality, in other words they didn't meet the Australian Standard of one in 150 of their verticality. So that all those walls were out of alignment. It also stated in the engineer's report that the floor levels were greater than 10 millimetres per lineal metre out of level. I think in one area, I think in one area alone, it was across the lounge room, they were up to nearly 60 millimetres out of level on that floor. So based on, from my experience as a builder of about 45 years at that stage, how you could bring a house back that was totally out of level and out of plumb and all internal piers, how you get that back to a situation that would meet all the Australian Standards, I drew the opinion that the process was uneconomical. Q. When you say how, what do you mean by how you could get that back? Couldn't you just A. You would have to jack the house severely to get it back to a level standard. In doing that amount of jacking you would cause other damage to the house that wasn't even there. You would cause walls to crack, especially at the weak points at the bottoms of windows and that sort of stuff. Q. So when you say it's uneconomical, can you explain how that word encompasses what you are talking about? A. I suppose from, I would have thought that it would be uneconomical to try and repair the house, and I don't know the exact age of it, it may have been 20, 25 years, something like that. A 25 year old house, you are then going to start putting an extreme amount of stress on that house when you jack it and that stress will cause further damage and so I just said it was my opinion only that it was uneconomical based on the age of the house. Q. So to do it would cause additional or more damage, as you said cause walls to crack at the weak points underneath the windows, you would need to jack the house severely, the support underneath the house already didn't comply with Australian Standards. So to do it would cause more damage, that's what you are A. That would have been my experience on doing other types of dwellings where we had done this type of work. Q. So could you have achieved what you needed to achieve with that house? A. I don't believe so."
6. Mr Culbert accepted that the defendants initially said that they would prefer the home that they had built together, and lived in with their family, be remediated rather than demolished and replaced by a new dwelling. In particular they expressed concerns about the fact that they had raised their children in that home and the fact that they had established the garden. However, they ultimately agreed to the demolition and rebuild and were involved in the design of the dwelling and selection of materials and fittings.
7. A deal of time was spent in the course of the cross-examination exploring the meaning of the Minute Paper dated 17 June 2010. The defendants contended the document suggested that the plaintiff was motivated to obtain a financial advantage by electing to demolish the house and build a new one. Mr Culbert, who I accept as a man of integrity, disputed that contention. He accepted that the Minute Paper included reference to the "rectification process" being "uneconomical". However, in so far as he was able to remember the contents and import of a document he signed back in June of 2010, he explained what he meant by that expression. I accepted his explanation. That explanation received support in the additional comments at the foot of the Minute Paper made on 17 June 2010. That included the observation, which was based on the opinions of the board staff (including Mr Culbert and a Mr Bullock): "Based on experience elsewhere. It is estimated the cost of repairs would be similar to the cost of rebuild. Repairs would involve a major project, will be difficult and there is no guarantee other issues would not arise."
8. Based on the information, the Chief Executive Officer recommended the demolition and replacement of the home. While I accept that this was not the defendants' preferred option, it is clear that the events that followed were such that they at least acquiesced, and certainly participated in, the plans to put that action into effect.
9. I will not detail the extensive evidentiary material on the issue, but the evidence establishes that the defendants were involved in the choice of design, materials and other details of their replacement home. There was a dispute concerning the nature of the landscaping and gardening to be done in an attempt to replace their well-established garden. The plaintiff generally only allowed around $8,000 for landscaping on a project of this kind. However, before the final decisions were made, an agreement was reached that a much larger sum would be allowed for landscaping in the defendants' particular circumstances. The defendants were able to engage a landscaper costing $42,735. The plaintiff paid for this in two instalments and a Release and Indemnity was signed in March 2012. [4]
10. The events that I have described in relatively brief detail were distressing to the defendants. It took what seems to be a very long time to reach the point where there was agreement as to the method by which the defendants were to be compensated and their home restored or replaced.
11. In March 2011, the defendants vacated the Tahmoor property in order to allow the house to be demolished and replaced by a new residence. During the period of the rebuild, the plaintiff provided the defendant with rent free accommodation in the property at Thirlmere that is the subject of the present proceedings.
12. The defendants have been in occupation of those premises ever since and it is the nature of their legal interest in that property which is at the heart of these proceedings. The plaintiff paid the defendants' removalist costs in the sum of $9,090 and, over the years, has paid for most of the outgoings relating to the Thirlmere property. [5] The defendants maintained the lawn and parts of the garden. As part of their defence, they assert that their actions in doing so "had a value" and they assert or estimate that value to be "in excess of $16,800". [6] This figure was calculated by reference to what their son charges as the owner of a lawn mowing and gardening business called Amazing Lawns and Gardens. [7]
13. As I understand their case, the defendants assert that the plaintiff received a financial benefit as a consequence of the defendants allowing them to adopt the option of destruction and replacement of the house, rather than the option of repairing it. They assert further that the work involved in mowing the lawn was a financial detriment to them and a benefit to the plaintiff. The defendants also refer to the time and money they spent in driving around Sydney choosing fittings, fixtures and materials for the house built at Tahmoor. They contend that the new dwelling house has many defects and they require those defects to be remedied before they are prepared to vacate the Thirlmere property and return to their own home at Tahmoor. They assert (or imply) that the plaintiff acted corruptly and fraudulently and engaged a "shoddy builder".
14. The dispute over the defects, and attempts to repair those defects, has lasted for around 5 years. Initially, the rebuild of the Tahmoor property was completed in March 2012. The plaintiff provided the defendants with an occupation certificate and various other documents, including a cheque for payment of the balance of the landscaping to which I have previously referred. Since that time the electronic and other correspondence between the parties has become increasingly heated and at times vitriolic. The defendants have accused the plaintiff of corruption and accused various participants of engaging in fraudulent activity. The defendants assert that the plaintiff engaged, in bad faith, the services of a "shoddy builder" and that it is the plaintiff, and not them, who should bear the consequences of that choice.

CORRUPTION IN THE PICTON OFFICE OF THE MINE SUBSIDENCE BOARD

1. It was at least implied, and probably stated or asserted directly, that the plaintiff through the actions of one or more of its employees and contractors acted corruptly and fraudulently. Reliance was placed on an investigation conducted by the Independent Commission Against Corruption ("ICAC") into the plaintiff's Picton office, which is the office with which the defendants were dealing. The defendants rely on findings of corrupt conduct against Mr Bullock who countersigned the initial Minute Paper in which the decision to rebuild was made. Over the plaintiff's objection, I admitted the ICAC report into evidence on a provisional basis. There was a strong objection on the basis of relevance and unfair prejudice.
2. There is reference in the ICAC report to a payment made in March 2007 in relation to the defendants' Tahmoor property. The report showed that a contractor was paid $3,880 for repairs whereas the true cost was $1,880. The first defendant alleged "Mr Bullock and Mr Salmon took a thousand dollars each". [8] While I am prepared to accept that the ICAC report disclosed that Mr Bullock and Mr Salmon engaged in corrupt conduct of that kind, this conduct occurred in 2007 when the plaintiff was taking interim steps while the engineering reports were prepared. The decision to rebuild did not occur for another three years and, at the hearing in this Court, the defendant was unable to point to any other part of the ICAC report in support of the contention that there was any other corrupt conduct in relation to the dealings between the plaintiff and the defendant. [9] Reference was made to "what we heard in evidence at ICAC hearings, at the public hearings", but there is no evidence of any corrupt or fraudulent conduct on the part of the plaintiff in relation to the Tahmoor rebuild or other dealings between the parties between 2010 (when the claim was approved) and 2016 (when the litigation commenced).
3. There was cross-examination of Mr Culbert about his relationship with Mr Bullock and he said that the latter was his boss. He denied that they were friends. If it is being asserted, by this cross-examination or otherwise, that Mr Culbert acted corruptly I reject the assertion.
4. I accept that the spectre of corruption in a person with whom the defendants had direct dealings (Mr Bullock) heightens the frustration, anxiety and suspicion that the defendants feel. The first defendant submitted that Mr Bullock "tampered with the tendering process" and engaged a builder with whom he had a corrupt relationship. [10] However, there is no evidence upon which I can act to support the insinuation that the plaintiff behaved corruptly in its dealings with the defendants between 2010 and 2016.

IS THERE A LEASE, A BARE LICENCE OR A LICENCE COUPLED WITH AN EQUITABLE RIGHT TO OCCUPY THE THIRLMERE PROPERTY?

1. As I have said, the defendants have been in occupation of the Thirlmere property since March 2011. When they moved into the premises, no lease was signed. However, they have been in exclusive possession of the property. The fact of exclusive possession may be an indicia that the parties have entered into a lease but it does not provide conclusive evidence of the existence of a lease. [11] There are no other indicia of a lease or evidence that the parties entered a landlord and tenant relationship. The defendants have not paid, or been asked to pay, any rent. [12] Further, the length of occupancy was not certain. The agreement was that the plaintiff would enjoy possession of the Thirlmere property while the Tahmoor rebuild was being undertaken. There were estimates as to how long that might take (9-12 months) but there was no certainty as to the length of the occupancy. It was dependant on a contingency and the date that the contingency would come into effect was not known. [13]
2. I do not accept, as a matter of law, that the parties entered into a contractual relationship in the nature of a lease or that there is any ongoing legal relationship of landlord and tenant. Even if there was such a relationship, the plaintiff has, by now, provided ample notice requiring the defendants to vacate the premises. [14]
3. I accept the plaintiff's submission that the defendants have occupied the premises on what was described as a bare licence. I do not accept the defendants' contention that if there is a licence, it is a "license coupled with equity" or that there is some kind of equitable estoppel precluding the plaintiff from taking possession of its land.
4. I do not accept that the defendants altered their position in consequence of any relevant representation or inducement made by the plaintiff that caused the defendants to assume the existence of a legal relationship that would entitle them to continue in occupation of the Thirlmere property until the dwelling at Tahmoor meets their (subjective) expectations. [15] I do not accept that the plaintiff gained a financial advantage in its dealing with the defendants so as to create in the defendants a legal right to remain in occupation of the land until the Tahmoor dwelling has been built to a condition that they determine is acceptable.
5. To demonstrate an equitable interest or estoppel, the defendants must establish that the plaintiff induced or encouraged an expectation or assumption in the defendants that they acquired a relevant interest in the Thirlmere property and that the defendants, upon this assumption, acted to their detriment. [16] In Waltons Stores, [17] Brennan J set out six things that need to be proved to establish an equitable estoppel. While the defendants appear to assert an estoppel based on expenditure they incurred on the maintenance or improvement of the Thirlmere property, the plaintiffs point out that no documentary evidence of this expenditure has been produced. [18] Conversely, the plaintiff's evidence establishes that it has paid for almost all of the outgoings relating to the Thirlmere property. This includes (but is not limited to) costs associated with pest control, repairs to electrical appliances, water rates, removalists, hedge-trimming, gutter cleaning and installation of cable television (Foxtel).
6. Since March 2012, the plaintiff has issued the defendants with several notices requesting them to vacate the property. Throughout that period, attempts have been made to address problems with the Tahmoor property identified by the defendants. After the defendants refused to deal with the public servants employed by the plaintiffs, there were attempts at negotiation at the highest level of government. The Minister visited the property and listened to the defendants' complaints. More recently, attempts have been made to provide compensation to the defendants based on the report of an independent builder. In the circumstances, even if all of the other conditions of an estoppel were established (which they are not), it could not be held that the plaintiff has failed to act to avoid the detriment by fulfilling the assumptions or expectations of the defendants. [19]
7. In the context of the litigation, and in an attempt to avoid it, the plaintiff has attempted to compensate the defendant for various out-of-pocket expenses and expenses including rectification of the flaws and faults that the defendants say continue to plague the Tahmoor dwelling. All attempts to settle the matter on terms have been rejected. This included an open-ended offer made on 30 March 2017 (that is, a few days before the hearing) to pay a total of $45,062.50 for a number of defects in the Tahmoor property that the defendants, and an independent builder, have identified. The plaintiff also offered to pay the sum of $14,201 for what is described as the defendants' "alleged out-of-pocket expenses".
8. An offer in almost identical terms was included in the material tendered by the defendants and annexed to their affidavit dated 16 February 2017. As I understand it, the defendants tendered that document as evidence of the fact that there continued to be serious defects in the Tahmoor house and as part of their case that their continued occupation of the Thirlmere property was legally justified. The list of defects disclosed is derived from a combination of the defendants' complaints and a report of an independent builder (Taylor Thompson Whitting) dated 25 July 2016. Again, that report was annexed to the defendants' affidavit. While the defendants appeared to accept that report on its face, they also complained that the builder (who was independent of the parties) made only a cursory inspection. For example, it was submitted that the builder did not enter the roof cavity and pull up floorings in order to assess the extent of the damage. In any event, the defendant relied on that report to establish that defects exist and remain in their rebuilt Tahmoor home. However it is impossible to ignore the conclusion of the independent building inspection report: "Generally the home is of very high standard with some very minor defects, the gutter being the most serious. The house has not deteriorated for the 5 years it has been left empty. Any remaining shrinkage of concrete and timber is insignificant."
9. The reference to the house being vacant for five years is a reference to the period between 9 March 2012 when the first occupation certificate was created and the date of the independent builder's report.
10. It may be that the defendants have a legitimate grievance compensable by damages. However, they have not acquired an equitable interest in the house and land that they have occupied on a licence from the plaintiff since 2011. All recent offers of compensation made by the plaintiff have been steadfastly refused.
11. The plaintiff has done what it can and has acted in good faith. It needs the Thirlmere property to accommodate other people whose houses have been damaged by mining activity, who have made claims under the Act and who need to be relocated while repairs are being made to their homes. Neither equity (nor the operation of "idiosyncratic notions of justice or fairness") [20] give rise to a legal interest under which the defendants may remain in possession of the plaintiff's land.

COMPENSATION?

1. When the matter was raised in the course of the hearing, the defendants made it clear that they had no intention of accepting compensation. When I enquired as to just how they proposed to move forward in terms of vacating the premises in which they are living but do not own or hold a lease, the solution posited was untenable. It seemed to involve the first defendant (who is not, as far as the evidence goes, a builder or engineer or otherwise qualified) overseeing the process and the defendants determining when the property was fit for them to resume residence.
2. I contemplated attempting to fashion some order that would enable the defendants to be compensated for the remaining defects in the property. However, the stance adopted by the defendants suggested that it would not be possible to fashion such orders, or any orders, short of dismissing the plaintiff's legitimate claim for possession. It was clear that any attempt to do so would not satisfy the defendants. Contrary to what I am prepared to accept are the defendants' genuinely held beliefs, there is no bad faith in the plaintiff's approach or in its claim for possession - it needs the house for other people seeking redress and compensation under the statutory scheme. It is a matter for the defendants to decide whether to bring a suit for compensation or to accept the plaintiff's offers of compensation, assuming (as it was suggested at the hearing) that those offers remain open.
3. By its letter of 30 March 2017, the plaintiff appears to accept that there may be an argument that the defendants should be compensated in the sum of $45,062.50 for the items referred to along with a "contingency" of 25%, as well as compensation approaching $15,000 for alleged out-of-pocket expenses. Whether that is, as I perceive it to be, a generous approach is a matter that may need to be determined elsewhere. In view of the position adopted by the defendants, I do not propose to make any formal orders in that regard, lest it be considered that the defendants are thereby forbidden from seeking compensation in an amount to which they believe they are entitled.

ORDERS

1. For those reasons, I make the following orders: 1. Judgment for the plaintiff for possession of the land comprised in the Folio identifier to 242/1006984, being the land situated at, and known as, 10A Mason Street Thirlmere NSW 2. No order as to costs.

Endnotes

1. Transcript of hearing on 6 April 2017 ("T") 85-86.
2. See for example the plaintiff's chronology (MFI 2) and the affidavit of Frank and Louisa Kozak dated 23 March 2017 (MFI 1).
3. Court Book (Exhibit A), p 40.
4. T 18-19.
5. T19 and 60.
6. See, for example, T 71.
7. T 71.
8. T 76.
9. T 76.
10. T 74.
11. Swan v Uecker [2016] VSC 313.
12. Whitlock v Brew (1968) 118 CLR 445 establishes the uncontroversial proposition that the payment of rent is an indication that the parties entered into a lease.
13. Cf Lace v Chantler [1944] KB 368 at 370-1; Mangiola v Costanza [1980] ANZ ConR 331; Bishop v Taylor (1968) 118 CLR 518; Prudential Assurance v London Residuary Body [1992] 2 AC 386; Legune Land Pty Ltd v Northern Territory Land Corporation and Anor [2013] NTCA 7 at [208]-[211].
14. See s 127 of the Conveyancing Act 1919 (NSW), s 119 of the Residential Tenancy Act 2010 (NSW), s 2AA(5) of the Landlord and Tenant Act 1899 (NSW) and the Landlord and Tenant Act 1948 (NSW).
15. Waltons Stores v Maher (1988) 164 CLR 387; [1988] HCA 7 at 542.
16. Buono v Mazzella [2016] NSWSC 659 at [164] citing Walton Stores (supra).
17. Supra.
18. Plaintiff's submissions, paragraph 89.
19. This is the sixth matter referred to by Brennan J in Waltons Stores.
20. Compare, for example, the analysis of unjust enrichment by Deane J in Muschinski v Dodds (1985) 160 CLR 582; [1985] HCA 78 at 615. 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: 28 April 2017