O'Neill v Robertson-Staton

Circumstances in which the claims are brought

1. Before 1995, the property was occupied by Ms Robertson-Staton as tenant under a lease from a third party. In late 1995, the landlord died and the property became available for sale for $85,000. Ms O'Neill and Ms Robertson-Staton spoke about purchasing the property. Their versions of those discussions differ.
2. According to Ms O'Neill's affidavit sworn 23 March 2015, Ms Robertson-Staton said to her: "Mum the property is for sale. I don't want to have to move again. I can't get the finance to buy it. You could buy it and I can rent from you. You can use it to negative gear for your tax."
3. Ms O'Neill states that she was nervous about buying the property but ultimately decided to do so.
4. Ms Robertson-Staton did not serve admissible evidence as to her version of the conversation. Pursuant to leave, she gave the following oral evidence (T8.5-T9.6): "Q. Do you have your defence with you? If you could just grab your copy of the defence. In paragraph 10 of the defence, you have stated, "I discussed the issue with my mother who agreed at the time to act as my agent in purchasing the property". Can you please say when did that conversation occur, where it occurred and what the conversation was? A. We had numerous conversations in regards to purchasing the property. It became available for sale just after Mr Baker had passed away in October. I was approached by Mrs Baker's son, Harold, and was offered first purchase on the property, and they did not want to do it through real estate agents, or anything like that. I went around to one of the local financial lawyer legal men in Lawson at the time, and I spoke to him, and he advised me, because I was in an abusive relationship, to find somebody to act as a Trustee for me, so that my name was not on the land deed title and therefore the fellow couldn't get any part of the property. I rang Mum and asked Mum if we could have a conversation in regards to her acting as an agent for me, as a Trustee, putting the property into her name. Q. This is where I need you to say, I said, she said. A. I said, I rang Mum and I said, Mum, would you please help me purchase this property so that [the partner] doesn't get any of it. Mum said, we will discuss it, this is as best as I can recall, your Honour, we're going back 20 years ago. We will discuss it. So I came down to Clovelly to Mum's residence [address given], and I spoke to Mum about it. The best I can recall, the conversation was along the lines of explaining I did not want [the partner] to get any chance of getting any of the property. Mum said she agreed, he wasn't entitled to any of it, if that was the case. I said to Mum, will you please help and act as an agent of purchase for me, please? Mum said we will find out about it and let's discuss it. So we had more discussions in regards to will it be safe in her name, will he be able to get any of it. We then did agree that Mum would help. We then discussed… Q. Again, could you please do your best to give the words that were said. A. Sorry. I can't remember the conversation verbatim, your Honour, to be perfectly honest with you. It's 20 years ago. We did agree, we then spoke, and Mum and I, I'm sorry, I'm trying to put it into words, your Honour. Q. Perhaps if you go to paragraph 11 of your defence, you've said, "Mum and I attended St George bank", so what conversation was had there? A. Yes, we did attend St George bank to arrange. Q. What conversation was had there? A. We had the conversation that I said to Mum "If we put all the house in your name then I think you should be able to negative gear it and we should get an investment loan because that will allow you to negative gear it". We also discussed that it would be 50% each and we would be going halves in our first purchase of a house together. From my recollection Mum and I were both excited at this situation. When we were in the St George Bank I remember that Mum was doing most of the talking with the St George people. Mum and I had a conversation. I said to Mum "I will arrange all the building reports, the pest reports. Meet with the previous owners and attend the bank with her. Mum said, "Yes, that would be fantastic, thank you". Mum was the signatory, yes."
5. Ms O'Neill denied that there was ever any discussion about her buying the property as agent or trustee for her daughter. She said the first time that was mentioned by Ms Robertson-Staton was in 2013 when she (Ms O'Neill) first commenced action to obtain possession of the property (through tenancy proceedings in the CTTT).
6. The purchase price was $85,000. Ms O'Neill paid the whole of the deposit of $8,500 and borrowed $76,500 to complete the purchase. She also paid all costs of the transaction including mortgage insurance, stamp duty and legal fees. Contracts of sale (naming Ms O'Neill alone as the purchaser) were exchanged in November 1995 and settlement took place on 18 December 1995.
7. A letter was sent that day from Ms O'Neill's then solicitors to Ms Robertson-Staton, noting that she occupied the premises as tenant and directing her "to pay any future rental payments to Ms O'Neill or as Ms O'Neill may direct" (annexure B to the affidavit of Ms O'Neill sworn 23 March 2015). Ms Robertson-Staton says she never received that letter. She nonetheless began paying Ms O'Neill $250 per fortnight from December 1995, initially by money order and later by direct payment into a jointly-held bank account (opened in May 1998). Handwritten notes accompanying the early payments (generally addressed "Hey Mum") described them as her "rent payment" or "rent".
8. Ms O'Neill said that the payments became irregular over the years and ultimately stopped altogether. Ms Robertson-Staton accepts that she stopped making payments in 2007 and has paid no money directly to her mother in respect of the house since then. It is her evidence that her mother called her in 2007 and told her to stop making payments. The mortgage had not been discharged by that stage. Ms O'Neill flatly denies that there was ever any such conversation. She says that she did not agree to waive rental payments but did not chase them at that stage.
9. Ms Robertson-Staton says that, although she has paid no rent, she and her husband have made contributions to the maintenance of the property since 2007. It will be necessary to return to that issue.
10. It is common ground that, since the inception of the loan, Ms O'Neill has paid all mortgage payments (the mortgage was discharged in 2011) and all land tax, council rates and utility rates. She maintains that she has also paid for all maintenance on the property, including building materials.
11. In July 2012, Ms O'Neill sent Ms Robertson-Staton a notice to vacate under the Residential Tenancies Act 2010 (NSW). She says that Ms Robertson-Staton promised at that stage to start paying rent but that no payments were received. Two further notices were sent. Ms O'Neill says that she received abusive phone calls from her daughter but no payments. Ms O'Neill filed an application in the Residential Tenancies Tribunal but the application was dismissed as the member was not satisfied as to whether a tenancy had been established.
12. Ms Robertson-Staton asserts that the property was registered in her mother's name alone on the advice of a solicitor, Mr John Shea. She says Mr Shea advised that if her name was on the title, her then partner might have a claim to the property after three months of their living together. Ms Robertson-Staton was not given any written advice to that effect, nor did she pay Mr Shea for the advice. Mr Shea did not give evidence.
13. Ms Robertson-Staton claims that she had the funds to purchase the property in 1995. However, she has provided no evidence to that effect and accepts she is unable to prove that assertion. She did not seek to have her name added to the title when her relationship with that partner ended in 1996.
14. At the hearing, Ms Robertson-Staton's evidence was that she initially offered to pay half of the deposit but that Ms O'Neill refused. Ms O'Neill denies that she purchased the property as an agent for Ms Robertson-Staton or that she purchased it jointly and held half of it on trust for her daughter. Ms O'Neill contends that the payments made by Ms Robertson-Staton were correctly described as rent as it was her property.
15. Ms Robertson-Staton's characterisation of the arrangement appeared to change throughout the two-day hearing. She initially said that her payments to her mother were described as "rent" in order to allow Ms O'Neill to claim to be the sole owner of the property and achieve a favourable tax outcome by "negatively gearing" the property. She described those payments as being her half of the mortgage. However, on the second day of the hearing, Ms Robertson-Staton claimed that the agreement was that Ms O'Neill would pay the whole mortgage and that she (Ms Robertson-Staton) would pay for all maintenance (T97.10-T98.22).

The joint account

1. The evidence included an incomplete set of statements for the joint account (exhibited to Ms O'Neill's affidavit sworn 16 June 2015). The most significant gap in the statements was between June 2002 and July 2003. There is no other reliable record as to what payments were made during that period.
2. The account was opened on 23 May 1998 with a balance of $15,561.78. Both parties were signatories to the account. It was common ground that Ms O'Neill deposited that amount as the amount she had received from Ms Robertson-Staton up to that point (the fact that it was not a round figure suggests either the accrual of interest or the debiting of expenses against that sum; it is less than the amount that ought to have been received for the relevant period). Ms Robertson-Staton said it represented her contribution to the mortgage whereas Ms O'Neill characterised it as rent. The mortgage was in fact being paid independently by Ms O'Neill from another account. If it was intended as a reflection of Ms Robertson-Staton's contribution to the mortgage, it was a notional fund.
3. From May 1998, Ms Robertson-Staton made payments into the account. Ms O'Neill says she understood the purpose of the account was as a deposit account for the payment of the rent. She understood that the funds in that account were hers. She said that the account was put in both names so as to allow her daughter to withdraw funds in an emergency or to pay funeral costs in the event of her death. Save in the latter case, she expected to be consulted before funds were withdrawn.
4. Ms Robertson-Staton claims that the account was established to enable her to use the funds for upkeep of the property and that all deposits into that account represent her contribution to the mortgage.
5. Aside from one withdrawal of either $2,000 or $4,000 in 2002, it is common ground that Ms O'Neill did not make any withdrawals from the account.
6. From the outset, reasonably regular amounts of $125 per week or $250 per fortnight were paid into the account but they were mixed with other payments and withdrawals; the account was never used by Ms Robertson-Staton in such a way as to provide a clean record of payments (be they rent or mortgage). The very first statement records a deposit of $1,025 followed immediately by a withdrawal of $775 giving a net deposit of $250 (the agreed payment figure). Other sundry deposits and withdrawals were made from time to time. In short, it is tolerably clear that Ms Robertson-Staton used the account for general purposes, not just as a deposit account for her contribution to the mortgage or for rent.
7. Over time, deposits into the account became more sporadic and significant withdrawals were made, often on the same day as a deposit.
8. Ms Robertson-Staton said that she had agreed with her mother that Mr Staton would provide the labour for maintenance and renovations of the property in exchange for a "rent holiday". Ms O'Neill accepts that there were some rental holidays granted on that basis. Ms Robertson-Staton calculated the value of the labour at $23,640 and various building supplies were paid for from the joint account. However, Ms Robertson-Staton also concedes that she paid for some personal items (such as a motor vehicle and a bike) from the joint account and that she owes her mother approximately $4,600 for other amounts withdrawn from the account.
9. The last deposit into the joint account was on 20 August 2007. The account had a closing balance at the end of that month in the sum of $20,034.16. Ms O'Neill's mother had died in June 2007. Ms Robertson-Staton put to Ms O'Neill in cross-examination that Ms O'Neill called her in August and told her to stop making payments until her mother's will had been "sorted". Ms O'Neill strongly rejected that and denied making any such call.
10. Ms Robertson-Staton further claims that, at this time, she and Mr Staton requested that "ongoing costs" (such as water rates and various taxes) be forwarded to them for payment but that Ms O'Neill refused. Ms O'Neill said that offer was not made until 2012 or 2013 and was refused because she was the sole owner of the property.
11. Between August 2007 and July 2012, Ms Robertson-Staton made many withdrawals from the account leaving a balance as at July 2012 of $8.32. Two withdrawals early in that period (in April 2008) were made with notations "I owe mum" and "I owe". The sum of those withdrawals was $2,200. There is then a two-year gap in the statements. Ms O'Neill says that is because Ms Robertson-Staton arranged to have the statements sent to herself instead of her mother. The statements in evidence went to a PO box in Lawson, a town also in the Blue Mountains. Ms Robertson-Staton asserts that all of the funds withdrawn from the account were used to pay tradesmen. There was no admissible evidence to confirm that assertion.
12. Ms Robertson-Staton eventually conceded that she paid none of the mortgage and that virtually all payments made into the joint account were withdrawn by her (T97). In other words, taking her case at its highest, the whole of her contribution (whether as mortgage repayment or rent) was consumed in renovations and maintenance.

Claim for a constructive trust

1. There is no instrument in writing to create the interest Ms Robertson-Staton claims in the property. Accordingly, there can be no suggestion that she has any legal title to the property: s 23C of the Conveyancing Act 1919 (NSW). The relief sought in the cross-claim is a declaration that the plaintiff holds the land as trustee for the first defendant as to one half of the property and a declaration that she has been an equitable owner of the property with the plaintiff. Mr Menadue, who appears for Ms O'Neill, apprehended the claim to be for a constructive trust in accordance with the principles stated by the High Court in Baumgartner v Baumgartner (1987) 164 CLR 137. That is the basis on which the hearing proceeded.
2. The decision in Baumgartner v Baumgartner was comprehensively and helpfully analysed in the judgment of Campbell J in West v Mead [2003] NSWSC 161. His Honour noted (at [52]) that Baumgartner v Baumgartner involved a significant extension of the law of constructive trusts concerning property acquired in the course of a domestic relationship. His Honour explained that the majority adopted the analysis put forward by Deane J in Muschinski v Dodds (1985) 160 CLR 583 which applied the principles developed in equity for the determination of property entitlements in the context of failed commercial ventures to the area of domestic relationships.
3. Justice Campbell observed that the majority in Baumgartner did not adopt the specific formula for the determination of proprietary claims applied in Muschinski v Dodds but rather looked at the contributions which had been made to the purchase price of the acquired asset, making adjustments (as dictated by the facts of the case) to the proportionate interests arising from those contributions. His Honour identified three ways in which principles familiar in the field of resulting trusts are "transmuted" when applied to this area of the field of constructive trusts. First, the Court extended the notion of a "contribution" to non-monetary contributions: at [56]. Secondly, the payment of mortgage instalments after a property has been acquired using money borrowed and secured by the mortgage is accepted as a "contribution" in that context: at [60], citing Baumgartner at [148]. Justice Campbell explained that the beneficial interest acquired as a result of payments of that kind is unlikely to be equal in value to the amount of the instalment paid but may nonetheless be taken into account in determining proportionate contributions: at [61].
4. Finally, Campbell J explained the role played by the intention of the parties in the context of a constructive trust on the Baumgartner basis, as distinct from the position in the case of a resulting trust. His Honour explained that the presumption of a resulting trust is one which seeks to give effect to the intention of the parties. In the case of a constructive trust on the Baumgartner basis, the parties may have had no explicit intention about how the legal title would be held in the event of breakdown in the relationship. A constructive trust is imposed in that circumstance to prevent an unconscionable assertion of legal title: at [62].
5. In a later judgment, Campbell J said that the fundamental question in determining whether a Baumgartner kind of trust exists is "whether it would be unconscionable that the rights of the parties, on determination of the relationship, should be simply what the bare legal right of the parties to the assets is": Hill v Hill [2005] NSWSC 863 at [45].
6. As Ms Robertson-Staton and Mr Staton were unrepresented and were unable to obtain legal advice, their submissions on those issues were primarily responsive to the submissions put on behalf of Ms O'Neill as to why no constructive trust arose. It must nonetheless be borne in mind that the onus of establishing the existence of a trust rests with Ms Robertson-Staton.
7. In order to establish the existence of a constructive trust, Ms Robertson-Staton must establish that she and her mother were in a joint relationship or endeavour and that the property was acquired in the course of, and for the purposes of, that joint relationship or endeavour: West v Mead (at [58]). It is then necessary to determine the respective contributions of the parties to that relationship so as to determine whether it would be unconscionable, following the breakdown in their relationship, for the property interests to lie where they fall.

A joint relationship or endeavour

1. It is accepted that the principles stated in Baumgartner v Baumgartner can apply to a domestic relationship between parent and child: Hill v Hill at [34] citing Swettenham v Wild [2005] QCA 264. However, each of those cases involved a relationship in which the parties to the relationship lived together, sharing the burdens and alleged benefits of domesticity.
2. In Hill v Hill, a son and his family moved into the mother's house, which she owned outright. The son paid no rent but had paid rates for part of the period and had made improvements to the property at his expense. The domestic arrangements ultimately became unworkable and the mother decided to sell the property. The son failed in his claim to establish that it would be unconscionable for the mother to retain the full benefit of her title to the property.
3. Swettenham v Wild was a case in which an elderly widower purchased a house intending to live there with his daughter on the understanding that he would be looked after by her. At a later point, the property was transferred into her name. The relationship broke down shortly afterwards and the daughter stopped taking care of the father and became hostile towards him. The Queensland Court of Appeal said in that case (at [31]) that the correct decision depended on the interplay of three equitable doctrines or principles: "the presumption of a resulting trust in favour of the person who provided the purchase price; the presumption of advancement in favour of the child who receives property from a parent; and the doctrine of a constructive trust arising where it would be unconscionable for one party to retain the benefit of the equitable as well as the legal interest in the property where the common endeavour between the parties failed without attributable fault.
4. Of those three doctrines or principles, only the third was addressed in argument before me. As the defendants were unrepresented, Mr Menadue was in effect left to discern and respond to the cross-claim on the strength of the witness statement annexed to the pleading. On the facts of this case, his apprehension that the real issue raised by Ms Robertson-Staton was a claim for a Baumgartner kind of constructive trust is understandable.
5. Mr Menadue submitted that there was no joint relationship or endeavour because: 1. Ms O'Neill and Ms Robertson-Staton did not live in a domestic relationship in which they pooled their resources; 2. Ms O'Neill and Ms Robertson-Staton agreed prior to the purchase of the property that Ms Robertson-Staton would continue her tenancy of the property and pay rent to her mother as owner of the property; and 3. Ms Robertson-Staton did in fact make payments described as "rent" to Ms O'Neill.
6. Ms Robertson-Staton maintained that she was not paying rent but rather her share of the mortgage in accordance with her perception of the agreement.
7. As explained by Campbell J in West v Mead, it is not necessary (in order to establish a constructive trust on the Baumgartner basis) to establish the express intention of the parties. If the parties have expressly agreed on an arrangement and the division of interests, courts would usually give effect to that intention (because there would be nothing unconscionable in holding the parties to their agreement): West v Mead at [63]. However, people in close relationships often form no intention as to how the legal title would be held in the event of a breakdown in their relationship. A constructive trust is imposed in that circumstance to prevent an unconscionable assertion of legal title.
8. I am not satisfied that there was any express agreement in the present case. As noted at the outset of this judgment, each of the parties gave an apparently sincere account of her recollection of the discussion that took place before Ms O'Neill decided to purchase the property. Neither struck me as being dishonest; I apprehend each genuinely believes her recollection is right. As recently observed by the Court of Appeal, that is the nature of human memory: see Nominal Defendant v Smith [2015] NSWCA 339 at [82] per Leeming JA. That was a case in which there was an issue as to whether a motor vehicle accident was caused by an unidentified black car two witnesses claimed had cut in front of their vehicle. Justice Leeming said: "Although to some it may seem counterintuitive, I see no real difference between Ms Callister wrongly but genuinely believing that she could not have missed the black vehicle, and Mr Smith wrongly but genuinely believing that he did see the black vehicle. That is the nature of human memory. Writing extra judicially (P McClellan, "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655) Justice McClellan has observed (at 664 and 665) that memories are unstable and malleable and vulnerable to suggestion. I do not regard that as controversial. Nor do I read his Honour as regarding it as controversial. It is supported not merely by one's ordinary experience but also by a body of psychological evidence: see for example Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [18]-[20] and R v Gittany (No 4) [2013] NSWSC 1737 at [334]-[341]."
9. The instability and malleability of human memory is perhaps nowhere more problematic than in litigation arising out of close relationships that have deteriorated. Where the deterioration occurs gradually over time, the risk of inadvertent revision (transmuting affection to ill-will) is high.
10. There were aspects of the evidence of both Ms O'Neill and Ms Robertson-Staton that suggest the possibility of unreliability or incompleteness in their recollection of their conversations 20 years ago. Ms Robertson-Staton's memories appear to have been influenced (to a degree) by an expectation of being looked after by her mother. Some of her cross-examination of her mother was directed in that way rather than to the factual issues in the proceedings.
11. Conversely, Ms O'Neill was oddly unemotional. In some questions during cross-examination, when her daughter directed a question to her in the second person, she responded by referring to her daughter (the cross-examiner) in the third person, as if she was not in the courtroom; see for example T10.20 and T10.45: "Q. Mrs O'Neill, how did you become aware of the property being up for sale in the first instance please? A. I was informed by the defendant that it was up for sale. … Q. Are you able to please tell us any conversations you recall to the best of your ability back to when we were discussing the purchase of the property? A. The defendant rang me and said, "Mrs Baker has passed away. I have the opportunity of buying it but I can't afford it. I cannot move again, Mum with these dogs and I've just put up the big fence. Can you buy it for me and I'll pay rent?" and I said, "I'll have to think about that because I've just started work myself". I hadn't been working that long and I didn't have a great estate at that stage so I had to think about that and then I did agree to purchase the property myself and have the defendant pay rent."
12. The sadness of both women during the hearing was palpable. Unfortunately, I think the degree of emotion each has experienced has, at least subconsciously, influenced their recollection of critical events. A more reliable indication of those early events is the objective structure of the arrangements and the contemporaneous documents.
13. Most aspects of the objective arrangements support the plaintiff's version. Before Ms O'Neill purchased the property, Ms Robertson-Staton paid $120 per week in rent to the previous landlord. As submitted by Mr Menadue, the similarity between that figure and the figure of $125 per week ($250 per fortnight) paid after Ms O'Neill purchased the property suggests a continuation of the rental agreement. Ms O'Neill's solicitor sent a direction to pay the rent to her. It was described as rent by Ms Robertson-Staton herself in notes that were clearly personal in nature and not the kind of note she would expect her mother to show her accountant. Ms O'Neill paid the whole of the deposit, all of the costs of the loan and repaid the loan entirely out of her own funds.
14. There are some considerations pointing the other way. Contrary to Mr Menadue's submissions, I do not find the suggestion that the house was put in the mother's name so as to put it beyond the reach of the abusive partner implausible. The concern about the partner may not have been well-founded (in law) but it does not follow that it was not honestly held. Further, while the payment amount was about the same as the previous rent, it was also more than half the mortgage repayment. That figure changed over time (presumably due to changes in interest rates) but was $746 per month at the outset of the loan; the payments of $250 per fortnight that were made (or supposed to be made) by Ms Robertson-Staton were more than half that amount (half the mortgage would have been $172 per fortnight).
15. It is entirely possible that the two women went into the arrangement with completely different understandings as to what their interest in the property would be. Certainly, on the evidence before me, I could not conclude that Ms O'Neill bought the house intending that it would be held beneficially for her daughter. Her evidence and the objective indications were directly to the contrary.
16. Ms Robertson-Staton maintains that she was intended have an equitable interest in half of the property. Mr Menadue suggested that if that were the case, she would have paid part of the deposit (if she were able to). Ms Robertson-Staton responded that she had offered to do so, but that her mother had refused the money because she wanted the transaction to be "neat and tidy". As suggested by Mr Menadue, if each party was to have a half interest in the property, the "neat and tidy" approach would be for each to pay half of the deposit.
17. The objective indications of the arrangements entered into in the present case favour the conclusion that there was no joint endeavour of the kind required to be established for a Baumgartner v Baumgartner kind of trust. It is, in my view, properly viewed as a rental arrangement. On the strength of that finding, the cross-claim would fail. However, in case that is wrong, it is appropriate to consider the respective contributions of the parties.

Contributions

1. A constructive trust would be imposed regardless of the intention of the parties if retention of the benefit that the claimant has conferred on the defendant would be unconscionable: Muschinkski v Dodds at 614, Baumgartner v Baumgartner at 148.
2. The contribution relied upon by Ms Robertson-Staton was the contribution made by her and her husband to the maintenance of the property. The benefit provided in that respect came in two forms: the provision of materials and labour supplied by the second defendant, Mr Staton.
3. There was no evidence to establish that materials were paid for from any source other than the joint account. Similarly, it was accepted that any labour supplied by Mr Staton was accounted for by rent relief expressly agreed to by Ms O'Neill or else by the non-payment of rent.
4. Mr Menadue submitted that Ms Robertson-Staton has conferred "little or no benefit" on Ms O'Neill since virtually all of the funds paid into the joint account have been withdrawn by her.
5. It has been difficult to reconcile the position reflected in the joint account in light of the fact that the statements in evidence were incomplete.
6. The real difficulty with this aspect of the cross-claim is that, on any analysis, even accepting Ms Robertson-Staton's estimate of the value of labour and materials provided, the entire sum came out of the joint account, which reflected rental payments. Accordingly, on any view, any contribution made by the defendants has been met by a concession as to rent. They have had exclusive occupation of the property since its purchase. Since 2007, they have lived there rent-free.
7. A separate difficulty with this aspect of the claim is Ms Robertson-Staton's own evidence that the property is now a "knock down rebuild" proposition. On that assumption, it could scarcely be thought that Ms O'Neill has been enriched by the valuable contribution made by the defendants. The improvements have not increased the value of the property: cf Hill v Hill at [40] to [41].
8. In all the circumstances, I am not persuaded that it would be unconscionable for Ms O'Neill to retain the whole of the legal interest in the property.

Conclusion

1. As already noted, the property is the home of the defendants and their two children. In such a case, where the party against whom possession is sought is the registered proprietor, it is usual to stay the execution of the order for at least six to eight weeks: Satchithanantham v National Australia Bank [2009] NSWCA 268 at [67] per Young JA; Giles and Hodgson JJA agreeing at [1] and [2] respectively. The defendants in these proceedings have no legal title to the land. It is nonetheless appropriate, in my view, to stay the execution of the order for a short further period so as to permit an orderly departure from the property, particularly having regard to the time of year.
2. For those reasons, I make the following orders: 1. That there be judgment for the plaintiff for possession of the land identified in the Statement of Claim; 2. That the plaintiff have leave to issue a writ of possession forthwith, such writ not to be executed before 1 February 2016; 3. That the cross-claim be dismissed; 4. That the defendants pay the plaintiff's costs of her claim and of the cross-claim.

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: 21 December 2015