Parslow v NSW Land & Housing Corporation; NSW Land & Housing Corporation v Parslow

Issues for determination

1. In the equity proceedings, Ms Parslow seeks a declaration that she is entitled, by estoppel against the Housing Corporation, to remain a tenant of the property for as long as she lives. Her contention is that there was an understanding to this effect going back to when she first began operating the property as a boarding house in 1976. Counsel for Ms Parslow argued the case on two bases. First, the circumstances were said to amount to an estoppel by convention giving rise to rights at law. Alternatively, counsel argued that Ms Parslow is protected by a proprietary estoppel giving her rights in equity.
2. The Corporation denies that the elements of estoppel are made out, on either basis. In addition, the Corporation has raised defences under the Act, or alternatively (if Ms Parslow's claims are not covered by the Act), the Corporation relies on the equitable defence of laches and also on a defence of waiver. The Corporation also contends that its title to the property is indefeasible under the Real Property Act 1900 (NSW), s 42.
3. It is common ground that, should Ms Parslow succeed in the equity proceedings, the possession proceedings will be dismissed. By the same token, should Ms Parslow's claim in the equity division proceedings fail, orders terminating her tenancy and giving possession to the Corporation must follow in the possession proceedings. But in the event that she faces eviction, there is an issue as to how much time she should be allowed to vacate.

Analysis of evidence

1. Evidence was given in Ms Parslow's case by Ms Parslow herself and by Beverley Sutton, who is a former proprietor of another boarding house in the Millers Point area.
2. Evidence was given in the Housing Corporation's case by Christian Knight and Nathan Cureton. Mr Knight is an engineer who is responsible within the Department of Housing for managing the sale of the Millers Point properties. Mr Cureton is the solicitor responsible for the conduct of the Corporation's case. His evidence was essentially formal. He exhibited documents from the Housing Corporation's files and also gave evidence of the steps taken since 2014 which led to the institution of the possession proceedings.
3. In 1985, the Ombudsman initiated an investigation into the way in which the tenure arrangements for the Millers Point residentials had been handled. The Ombudsman interviewed a number of residential tenancy holders as well as officers of the MSB, and reviewed over seventy MSB files. In 1986 the Ombudsman issued a report setting out his provisional findings and recommendations, and inviting submissions and further evidence from interested parties. The provisional report contained some historical information about the residentials and a chronology extracted from the files of the Housing Commission and the MSB, both of which were received into evidence by consent. Some further paragraphs were tendered by consent. One paragraph of the report, which recorded concessions made in the course of his interview by one of the MSB officials, was contentious. I consider the admissibility of this paragraph at [52] - [68] below.
4. According to uncontentious parts of the Ombudsman's report, the system of residentials operating under lease from the MSB went back to the early twentieth century (the MSB was established in 1935; before then, the system was operated by its predecessor body, the Sydney Harbour Trust). At the turn of the century, several hundred properties in the area were resumed by the State Government. Title to some of the properties was vested in the Minister for Public Works and title to others in the Sydney Harbour Trust. Sixty of those properties were terrace houses built between 1840 and 1860, which became the residentials.
5. Under the system administered by the MSB, the residentials were leased out to tenants to operate as boarding houses. The idea was that they would be sub-let as accommodation for workers on the waterfront. The tenancies were usually granted to operators who were themselves former workers, or otherwise had some connection with the area, such as being family members of waterfront workers.
6. The residential tenancies took the form of leases from week to week, but in practice the MSB allowed them to continue for years or even decades, provided the tenants complied with the lease terms. Over time they came to change hands at a significant premium, or were "inherited" by being passed down from one member of the family to another. The MSB's approach is recorded in a letter from its responsible Minister to the Premier in January 1979, as follows: … tenancies are negotiated as normal business transactions for which commercial rentals are charged. The tenant owns all furniture and furnishings and services rooms which are sublet as a business enterprise. The sale of such a business is a private matter between the vendor and the purchaser, but for the Board's part it is considered a normal property management procedure to grant a fresh tenancy of the premises to the purchaser of the business provided he is judged to be a suitable tenant.
7. Of the sixty residentials, forty-three were owned, and administered directly, by the MSB. The property at Lower Fort Street which is the subject of the proceedings was one of these. The other seventeen were administered by the MSB on behalf of the Housing Commission; they were part of a larger group of properties known as the Observatory Hill Resumed Area ("OHRA"). The MSB officials responsible were located at the MSB's headquarters at Circular Quay West.
8. All of the residentials appear to have been administered in the same way. The weekly tenancy agreements in evidence in these proceedings, one of which is for an MSB-owned residential, and one of which is for an MSB-administered residential, appear to be in identical form except for the name of the lessor.
9. As mentioned, Ms Parslow came to Sydney in 1976 looking to be involved in the conservation movement in the Millers Point area. After she started living at Millers Point, Ms Parslow joined the Millers Point "Residents Action Group" ("RAG"). Other residential tenancy holders who were active in the Group were Shirley Ball and Sally Clough. Ms Sutton was also a member.
10. In 1980, Ms Parslow had a daughter, Arana. Ms Parslow appears to have raised Arana as a single mother. She has never married.
11. At the time Ms Parslow started living there, the residential tenancy for the Lower Fort Street property was held by Tom Ball (whether he was related to Shirley Ball is not revealed by the evidence). Mr Ball did not live at the property but he had grown up in the area and he had apparently "inherited" the tenancy of the property from his father. According to Ms Parslow, she took over management of the boarding house soon after she started living at the property. Mr Ball remained the holder of the tenancy until a formal tenancy agreement was issued to Ms Parslow in November 1981.

Documentary evidence up to 1985

1. The chronology in the Ombudsman's report contained an extensive summary of correspondence concerning the residentials between 1978 and 1985. The chronology began with the decision of the MSB in March 1978 to increase the rentals charged to the head lessees following what was described as a "major review" of the basis on which such rentals were fixed. This led to representations being made to the MSB on behalf of pensioners living (presumably as subtenants) in the residentials. The MSB's response, as reflected in the letter to the Premier quoted at [22] above, was that the rents charged by the MSB to residential tenancy holders and by residential tenancy holders to sub-tenants, were matters for commercial agreement and were not subject to Government control.
2. In September 1979 the following advertisement appeared in the Australian Financial Review: The Rocks, Sydney Professional People Are you fed up with the city hassle and high rents! We have business premises with dwelling 2 offices, 3 bedrooms, 2 bathrooms sandstone terrace Maritime Services Board weekly lease Key money $35,000
3. This advertisement, and particularly the idea of a tenancy to a publicly owned property being transferred to "professional people" for "key money" of $35,000 (which in today's terms would be around $150,000), appears to have sparked political interest in the residentials. The Minister for Housing (responsible for the Housing Commission) wrote to the Minister for Ports (responsible for the MSB) asking for details of the lease arrangements on the properties in question. In his letter the Minister referred to a general survey being undertaken within his Department to gather information on State Government residential holdings that might be available to meet current public housing problems. The Minister for Ports initiated a review into the leasing arrangements for properties owned and administered by the MSB in Millers Point and instructed the MSB that until the investigation had been completed no transfer of any lease should be approved and any surrendered tenancy should be retained by the MSB.
4. The review appears to have begun in February 1980. Even before this, in January 1980, the Minister for Housing wrote to the Minister for Ports seeking to take over full responsibility for the residentials in the OHRA. By February 1980, the Minister for Housing indicated that his interest was not only the OHRA residentials: he wanted all of the residentials owned by the MSB in Millers Point to be acquired by the Housing Commission as well.
5. The review involved the questionnaires being sent to holders of residential tenancies. The possibility of the leasing arrangements for residentials being changed became, or was already by this stage, publicly known. The Ombudsman's chronology records a letter in June 1980 from the Millers Point/Dawes Point Residents Action Group ("RAG") protesting against any move to place the area under the control of anybody other than the MSB.
6. The Ombudsman's chronology also summarises correspondence between the MSB and some of the individual residential tenancy holders which casts light on the MSB's practices at the time. In particular, the chronology refers to a number of requests made by Sally Clough, who held a number of residential tenancies in Lower Fort Street, for approval of alterations to those premises. The earliest of these is from July 1978. In each case approval was given, but subject to the work being carried out without cost to the MSB and all new work becoming the property of the MSB.
7. In January 1980 solicitors acting for the proprietors of another residential wrote to the MSB advising of their plan to auction the business and asking whether the MSB raised any objection to the auction. Eventually the Minister for Ports wrote back advising of the review being undertaken and stating that: It is quite likely that in the near future the weekly tenancies of these premises will be terminated. The Minister's letter asked that the information in the letter be brought to the notice of the owners and anyone bidding at the auction. The auction was held a few days later and no bids were made.
8. In June 1980 the transfer of another tenancy at Lower Fort Street was approved, but subject to the prospective tenant having been notified of the review and the likelihood that tenancies might be terminated.
9. The correspondence concerning individual residential tenancies summarised in the Ombudsman's chronology included correspondence concerning the very property at Lower Fort Street which is the subject of these proceedings. In August 1980 the Minister for Ports replied to a request from a solicitor, Douglas Knaggs, requesting a tenancy transfer for the property. Ms Parslow confirmed in her evidence that Mr Knaggs acted for her. According to the chronology, the Minister's reply advised that the leasing of residentials was under review and that, while the MSB could not unreasonably withhold its consent to an assignment of the lease (this was apparently a reference to the Conveyancing Act, s 133B), the MSB's policy could be changed as a result of the review, and it might be that the weekly tenancies could be terminated at short notice.
10. In July 1981 Mr Knaggs renewed his request but was advised by the MSB that it was unable to consider an application for assignment of the lease until the review was completed. Mr Ball then himself wrote to the MSB notifying that he wished to terminate his tenancy due to ill-health. He stated that Ms Parslow (described as a "subtenant"), was willing to take over the tenancy and that there would be no monetary exchange involved. Mr Knaggs then wrote again asking for the MSB to agree to the transfer of the tenancy and repeating that no money would be changing hands. The chronology then contains the following entry for 26 November 1981: Board offers tenancy of [Lower Fort Street property] to previous sub-tenant nominated by the former head tenant for use as a residential. Letter also advises "It should be noted that the tenancy may be terminated at short notice in the future." New Tenancy agreement dates from 17/11/81.
11. The residential tenancy agreement between the MSB and Ms Parslow is in evidence. The agreement was a standard form of deed between the MSB and Ms Parslow and headed "WEEKLY TENANCY". It provided for a weekly tenancy at a weekly rental of $47.00 (cl 1). It was actually dated 2 November and provided for the tenancy to begin on that date. The premises were to be used only for "the purpose of a Residential". The tenant was obliged not to assign or sub-let or part with the possession of the premises without the MSB's written consent (cl 7). The MSB was entitled to re-enter on non-payment of rent or on breach of any condition by the tenant (cl 11). The tenant was subject to an obligation to keep the premises in proper condition (cl 4). Clause 6 in effect put the financial responsibility for repair of the premises on the tenant. It provided: The Board or any person duly authorised on behalf may enter and view the state and condition of the premises and all necessary repairs and cleanings of which notice shall have been given to the Tenant by the Board or any such person as aforesaid shall forthwith be carried out by and at the expense of the Tenant and if such repairs and/or cleansings shall not be carried out within such time as the Board may deem reasonable the same be effected by the Board at the expense and cost of the Tenant and such expense and cost (of which the certificate of the Board's Engineer-in-Chief shall be conclusive evidence) shall be repaid by the Tenant to the Board on demand and if unpaid for a period of seven days after such demand the same shall be deemed to be rent overdue and unpaid and may at the option of the Board be recovered by distress or otherwise in like manner as rent in arrears.
12. According to the Ombudsman's chronology, as early as May 1980 the Housing Commission had formally resolved to resume the OHRA properties for its own purposes, including the seventeen OHRA residentials being administered by the MSB. But this was delayed as a result of financial and legal issues, including the question of compensation. Ultimately, the Commission decided it would itself take over the administration of the properties from the MSB. In September 1982 a letter was sent from the MSB to the proprietors of the seventeen residentials advising of the transfer of control and management and responsibility to the Commission as from October. The letter stated: It is the Board's understanding that established tenancies will be continued, initially at existing rentals and that normal Housing Commission tenancy conditions will apply to the residences after the Commission's acquisition. However, officers of the commission will shortly visit you and other tenants affected by the changeover to fully discuss matters of management etc, and the procedure for payment of rental.
13. These arrangements did not, of course, apply to the forty-three residentials owned by the MSB including the one at Lower Fort Street occupied by Ms Parslow. But in August 1982 the Minister for Ports asked the MSB to develop a new plan of management for those residentials which was to include the establishment of a management committee comprising representatives of the MSB, the Housing Commission and residents; the termination of all head leases; and the offering of leases to sub-tenants.
14. In November 1982, there was a meeting between officers of the MSB and representatives of the RAG, including Shirley Ball, at which those representatives were told of the management committee plan. According to the chronology, Mrs Ball alleged that they were also told that the Minister had directed that the proprietors of the forty-three residentials were to vacate their businesses by the end of the month and that no compensation would be paid, but this was disputed and there was no documentary evidence of such a directive having been issued. Shortly afterwards, the MSB formally wrote to the RAG, requesting the nomination of a representative to act on the proposed management committee. Mrs Ball was nominated. But ultimately the Minister's plan did not go ahead. Representatives of the MSB proposed instead that the MSB lease the properties to the Housing Commission so that the Commission could manage them. The Minister agreed to this proposal in January 1983. A formal offer was made to the Minister for Housing which was accepted in February.
15. By this time, a new lobby group, known as the Millers/Dawes Point Residential Proprietors Group ("RPG"), had been formed. Mrs Ball was the secretary of this group. In March 1983 Mrs Ball wrote to the Minister on behalf of the RPG protesting at the proposal to lease the forty-three residentials to the Housing Commission and asking that the properties be leased to the current proprietors. The Minister for Ports put the lease proposal on hold for a period of time but lifted it at the end of August. The Minister notified Mrs Ball of this on 1 September.
16. Later in September 1983 the Minister for Ports wrote in response to a request for information on future plans for the area from the holder of another residential tenancy in Lower Fort Street. The Minister advised that the hold had been lifted but the letter went on to state: Let me assure you that there is no possibility of you losing your home as a result of these transfers. Your continued occupancy, together with that of your existing subtenants is guaranteed.
17. In November 1983 the Housing Commission wrote to the sub-tenants, the RPG, and "other community groups" advising that it had established a "project office" in Argyle Street, Millers Point. The letter referred to a survey of the residentials being undertaken when the Commission's leasing arrangements with the MSB were finalised.
18. On 1 March 1984, a circular letter was sent by the Minister for Housing (Mr FJ Walker MP) addressed to "The Resident" at each of the residential properties. The letter relevantly stated: I am writing to you and all other sub-tenants and head tenants in the sixty Millers Point rooming house properties for which the Housing Commission has, or will shortly have, management responsibility. I have received a number of representations from individuals and groups in Millers Point who are concerned about the Commission's involvement in these properties. I have also been fully informed of the discussions which took place at the public meeting organised by the Millers Point/Dawes Point Residential Proprietors Group on 30th November, 1983. There have been many issues raised in these forums, several of which I now wish to address. It has been suggested that the transfer of these properties to the Housing Commission signifies an intention by the government to redevelop the sites for other purposes. This is most definitely not the case. As the State's Public Housing Authority, the Commission is primarily concerned with providing low and medium income earners with secure, affordable and well managed housing, maintained to a high physical standard. No commercial development or other action which may alter the principally residential nature of Millers Point is planned. I am equally disturbed by the persistent rumour that residents of the rooming houses will be displaced from their homes as a result of the Housing Commission assuming management responsibility for these properties. I can assure you that all existing residents of the properties in question are guaranteed of [sic] their right to continue to live in rooming house accommodation in Millers Point.
19. On 16 and 19 March 1984 the Commission sent letters to the head tenants formally notifying them of the transfer of the administration of the forty-three MSB residentials as from 26 March, and advising that a review of the administration of the residentials was planned.
20. On 26 March 1984 formal leases over the residentials were executed by the MSB in favour of the Commission. The leases were for a twenty year period. The Ombudsman's chronology states that the registration of ten of the leases was delayed because the MSB could not locate its title documents and the Registrar-General had to issue new certificates of title. It appears that the Lower Fort Street property the subject of these proceedings was one of these. A fresh Deposited Plan covering the property (along with three other properties in Lower Fort Street) was lodged, and a new folio created, in April 1985. The lease was not actually registered until December 1986 (see [73] below).
21. By February 1985 Minister Walker had decided on a new system of tenancy for the residentials. The old MSB leases to head tenants were to be formally terminated. Direct tenancies would then be offered to all residents of the boarding houses. A residential tenancy holder who lived in the boarding house was to be offered a tenancy agreement over part, but not the whole, of the boarding house (presumably only the part he or she actually occupied). A system of management contracts was to be set up under which there would be a rooming house manager to manage the operation of the boarding house. Existing residential tenancy holders would be entitled to apply for such management contracts. The Commission was also to assume responsibility for maintenance of the properties, and there was to be a program for upgrading them and perhaps purchasing new furniture. The Minister wrote to the RPG on 6 February informing the RPG of this new system.
22. The Commission then proceeded to issue notices to quit to the residential tenancy holders. The notices were issued in batches. The notice to Ms Sutton is in evidence. It was issued on 12 February as part of the second batch. It was accompanied by a letter from the Commission to Ms Sutton explaining how the new system would affect her tenancy arrangements. The notice to Ms Parslow is also in evidence. It was dated 5 March and was part of the third batch of notices to quit issued. Although there was no accompanying letter from the Commission to Ms Parslow in evidence, it is clear that there would have been one offering her a tenancy agreement over the part of the house in which she was living and advising her of an opportunity to apply for a management contract.
23. On 26 March Minister Walker wrote a further letter to "The Resident" of the properties. The letter stated: There is a lot of inaccurate information circulating throughout the Millers Point community about what will happen to you and your accommodation. Last Friday (15th March, 1985) a publication called On-Side! appeared in the local community. It was totally inaccurate in its advice to residents on what is proposed in Millers Point. I am writing to you again to set the record straight about what the Housing Commission proposes to do with the 60 rooming houses that have been transferred to its control. Firstly, I wish to emphasise that no resident will be asked to leave. The Housing Commission will enter into tenancy agreements with all sub-tenants and resident head tenants. These agreements will ensure security of tenure for all residents. I can only reiterate that once you sign a tenancy agreement, you are guaranteed a continuing right to live in the rooming house accommodation in Millers Point. The only eviction that has occurred up to date was carried out by a resident head tenant. If your continuing occupation of your room(s) is threatened by a head tenant, I advise you to contact the local Housing Commission office immediately. Secondly, the rent that you will pay to the Housing Commission will be a maximum of 20% of your income (or 18% of your income if you are a pensioner) up to the ceiling rent set for the particular part of the property you occupy. For example, if you receive an aged pension of $193.80 per fortnight, you will pay $17.50 per week rent, For the majority of tenants, this will be a significant reduction in the rent payable. Thirdly, the Housing Commission plans to spend $4.5 million renovating the 60 rooming houses. They are being upgraded to provide quality and accessible kitchens, bathrooms, laundries and toilet facilities. There are rumours circulating that the Commission plans to either upgrade and sell or change the rooming house into "high class residentials". I wish to emphatically deny both suggestions and tate again categorically that the rooming houses will be provided in both the short and long term for existing residents, and eligible Housing commission applicants as vacancies occur. Finally, negotiations with the head tenants are, in the main, proceeding smoothly. Many have already agreed to enter into tenancy agreements and management contract with the Commission. In the event of a head tenant not wishing to take up a management contract in a particular property, the Commission is keen to discuss management options with sub-tenants. A small group continue to campaign against the management changes, and are using questionable tactics to get their point across. In particular, I am deeply concerned that some head tenants have, in some instances, withheld information and have distorted the truth to further their own ends.
24. It is clear from the Ombudsman's chronology that there was continued resistance to the Commission's attempts to implement the new system. As with the issue of the notices to quit, the Commission appears to have proceeded with litigation on a staged basis. Eventually in September 1985 proceedings for possession of nine of the residentials were issued.

Admissibility of Ombudsman's report

1. The Ombudsman's investigation formally began in April 1985. The complainants included numerous members of the RPG, including Mrs Ball, Ms Clough, Ms Parslow and Ms Sutton. The complaint was made against the Housing Commission; the complainants alleged that the Commission failed to give proper consideration to the disadvantage they had suffered as a result of the transfer of the properties to the Commission which had resulted in the abrogation of the previous lease arrangements with the MSB. The Ombudsman's report recorded: The complainants alleged that officers of the Maritime Services Board, through personal contact prior to and following the signing of leases, led the complainants to reasonably expect that their leases (though formally weekly tenancies) would only be terminated if the lessee was found to be breaking the terms of the lease or was allowing criminal activity on the premises. On the basis of that expectation, and in the knowledge that for decades, proprietors of these residentials had enjoyed undisturbed tenancies and had been able to transfer and bequeath their interests in the residential businesses with the approval of the Board, the Complainants expended considerable sums of money born in purchasing the 'goodwill' of residential businesses and in upgrading the premises after being granted a tenancy by the Board.
2. The Ombudsman's provisional report was issued in October 1986, with responses required by November. The report included the following paragraphs: 5.1.5 In a response to the Ombudsman's initial enquiries to theBoard, the General Manager in describing the procedure for tenancy transfers stated that at the time intending purchasers were interviewed by an officer of the Board's Property Section they were "always advised that the weekly tenancy afforded no real security of the tenure and that such tenancy could be terminated by the Board on a week's notice". The evidence, however, does not support this statement. 5.1.6 Members of the complainant Group, in written statements and following detailed questioning, have given consistent evidence that representations were made to them at different times by officers of the Board, including various property officers and a former Secretary of the Board, which led them to believe that they would be able to run their businesses with long-term security. The substance of such representations were comments to the effect that intending purchasers should not be concerned about weekly tenancies as all the Board's commercial properties, such as the shops, were also on weekly tenancies and the Board had been operating like that for eighty years; that the tenancy would not be revoked unless for reasons of gross misbehaviour or refusing to pay rent; that in the whole history of the Board there was only one or two cases where this had happened; that the accepted thing was for head tenants to leave their businesses to their children in their wills; and that they could expect a life tenancy if the conditions of the tenancy were complied with. 5.1.7 While most of this evidence related to past property officers of the Board, when as part of the investigation, these alleged representations were put to Mr B. Wright, the current property officer, he said they were in his experience "fair comment". When further questioned on why the Board did not question proposals by head tenants to spend substantial amounts on alterations to their leased residentials (a condition of approval being that all such work became the property of the Board), Mr Wright said that he believed it was because of the general accepted policy of the Board that the tenancies would go on for long periods, despite being weekly tenancies.
3. Counsel for Ms Parslow sought to have the Court receive these paragraphs in evidence. The first two paragraphs were not objected to, but counsel for the Housing Corporation objected at the hearing to receipt of the final paragraph. Counsel for Ms Parslow submitted that the business records provision in the Evidence Act 1995 (NSW), s 69, made the disputed paragraph admissible as evidence of the truth of the statements attributed to Mr Wright. Counsel for the Housing Corporation submitted that the statements attributed to Mr Wright were statements of opinion which were not admissible under s 69. But counsel also submitted that even if the statements attributed to Mr Wright were properly characterised as statements of fact, the report was not evidence of the truth of those statements.
4. I ruled at the hearing that I would receive the disputed paragraph, to the extent that it contains representations of fact rather than opinion, as evidence of the truth of those representations. This ruling preserved the ability of counsel for the Housing Corporation to argue that the statements attributed to Mr Wright were opinion and hence inadmissible, but otherwise overruled the objection. I indicated that I would give reasons for my ruling in my decision, and those reasons now follow.
5. Section 69 is one of the exceptions to the hearsay rule. It relevantly provides: Exception: business records (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or (ii) at any time was or formed part of such a record, and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. (3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or (b) was made in connection with an investigation relating or leading to a criminal proceeding. … (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).
6. The investigations which resulted in the report may have been carried out by staff assisting the Ombudsman rather than the Ombudsman himself, but it was not suggested that anything turned on this. In what follows I refer to the Ombudsman and his staff collectively as "the Ombudsman".
7. For the purposes of s 69 the term "business" is defined to include activity by the holder of a statutory office: Dictionary Part 2 cl 1(d). This would include the Ombudsman. Counsel for the Housing Corporation did not suggest that the information gathered as part of the Ombudsman's investigation was excluded by s 69(3).
8. The report is undoubtedly admissible as evidence of what Mr Wright in fact told the Ombudsman. The report records Mr Wright's statement, and the making of that statement was within the personal knowledge of the Ombudsman (s 69(2)(a)). But the argument by counsel for Ms Parslow went further. Counsel contended that the report was a statement of facts observed by Mr Wright working for the MSB. Although the Ombudsman did not have personal knowledge of those facts, Mr Wright did. The Ombudsman's report was thus, so counsel contended, based on information supplied by a person with personal knowledge of those facts, and admissible under s 69(2)(b).
9. At the hearing, I had some doubt whether this analysis could be correct. It struck me as surprising to think that the mere recording by the Ombudsman of something he was told by someone else, and which the Ombudsman did not himself know to be true, would become evidence of the fact asserted merely from being so recorded. But I was also concerned about the circumstances in which the objection came forward.
10. I was told, without any demur from counsel for the Housing Corporation, that the report was tendered in Ms Sutton's proceedings against the Corporation (in which the same counsel appeared on both sides) and that no objection was taken on that occasion. No objection to the report was notified in the objections which the Corporation's counsel were required to lodge in advance of this hearing. The objection only emerged in its full force after I had queried what the report was evidence of.
11. In these circumstances, I thought it unfair to allow the objection to be pursued. I make no criticism of the conduct of counsel for the Corporation, but it is quite understandable that counsel for Ms Parslow were lulled into the belief that it would be unnecessary to justify the admission of the report. Had the issue been raised prior to the hearing, it might have been possible to prove the accuracy of Mr Wright's statements in other ways. In particular, Mr Wright may no longer be available to give evidence and the statements attributed to him might therefore have been admissible under s 64.
12. On further reflection for the purpose of preparing this judgment, my doubts about the admissibility of Mr Wright's acknowledgments of evidence of the truth of those acknowledgements have deepened. The question comes down to identifying the "asserted fact" contained in the Ombudsman's report. Is the "asserted fact" the fact that Mr Wright said what he said, or does it extend to the accuracy of his acknowledgements? The term "asserted fact" is defined in s 59(2) as a "fact that it can reasonably be supposed the person [who made the "previous representation"] intended to assert by the representation". In this case the person making the "previous representation" was the Ombudsman. It is also relevant that the "previous representation" must have been "made or recorded in the document in the course of, or for the purposes of, a business". The "business" is the performance of the Ombudsman's statutory function in investigating the conduct of the Housing Commission. That is quite different from the "business" which was being conducted at the relevant time by the MSB.
13. In my view, these considerations suggest that, in recording Mr Wright's statements in his report, the Ombudsman may only "be reasonably supposed" to have intended to assert that this was what Mr Wright had said. That was the way it was expressed in the report. For these reasons, I doubt that, had objection been taken in a timely way, Mr Wright's acknowledgements would have been admissible as evidence of the fact. But as will be seen, the admission of that material makes no practical difference to the outcome of these proceedings.
14. My decision to admit the relevant paragraph of the Ombudsman's report still leaves open the question whether the acknowledgements attributed to Mr Wright were statements of "asserted fact" or opinion. There were two acknowledgements. The first was that the statements by residential tenancy holders alleging that the MSB made representations to them that their tenancies would continue were "fair comment". The second was an acknowledgement as to the MSB's "generally accepted policy" with respect to residential tenancies.
15. The form of these acknowledgements, and their lack of context, make them hard to analyse for the purpose of distinguishing between fact and opinion. As to the first acknowledgement, it is certainly possible that Mr Wright might have himself made such representations on behalf of the MSB to residential proprietors and other members of the public, or that he was present when such statements were made. If so, then on my earlier ruling his acknowledgement would have been one of fact. But I am not satisfied that this was what Mr Wright was acknowledging. To my mind, the laconic response that the allegations were "fair comment" may be nothing more than Mr Wright's conclusion, based on what he assumed or had been told about the MSB's practices, that such promises might well have been made. The conditions for such a conclusory statement (often referred to as a "lay opinion") in s 78 are not, in my view, satisfied. For one thing, it was not necessary to receive Mr Wright's evidence in the form of an opinion to obtain an adequate account or understanding of what Mr Wright witnessed: Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 at [48].
16. Similar observations apply to the acknowledgement of the MSB's practice as put to Mr Wright by the Ombudsman. Again, I am not satisfied from the exiguous contextual material in the Ombudsman's report that Mr Wright, in giving that acknowledgment, was referring to a policy of which he had personal knowledge. The acknowledgment may be no more than a conclusion by Mr Wright based on what he had assumed the MSB's policy was.
17. The temporal context for the acknowledgements must also be considered. The MSB's general manager (whose name is not identified in the parts of the report in evidence) had given evidence to the Ombudsman which suggested that, while the sort of conduct which the subject of the complaints might have reflected the Board's approach in the past, the Board had tightened up its procedures. The Ombudsman relied on Mr Wright's acknowledgments to refute this. But the fact is that the properties in question were transferred to the Housing Commission more than a year before the Ombudsman's investigation began. On no view could the acknowledgements by Mr Wright be understood as a statement of the practice being followed in 1985. I think this calls into question whether, despite the apparent view of the Ombudsman, Mr Wright was really describing contemporary practice, or at least if he was doing so, whether he was describing a uniform practice. In the end I do not think it matters: see [188] below.

Documentary evidence from 1986

1. The Ombudsman's chronology ran out in September 1985. The documents exhibited by Mr Cureton only begin in 1989, so there is a period of approximately four years where the documentary record is very limited and it is not easy to tell what was going on.
2. In October 1985, a caveat was lodged in Ms Parslow's name on the title to the property. The interest claimed by the caveat was as follows: A proprietary interest in and claim against the property and a long-term lease over that part of the subject property known as xx Lower Fort Street, Millers Point.
3. The caveat was lodged on Ms Parslow's behalf by a firm of solicitors, Michie Shehadie & Co. It was signed by Ms Parslow and witnessed by a solicitor at Michie Shehadie, Ms Kym Monnox. Ms Parslow confirmed in her evidence that Michie Shehadie acted for her. She said that Michie Shehadie at the time were representing a group of residential tenancy holders who were in dispute with the Commission and who contributed funds to pay Michie Shehadie's fees.
4. It is not clear when the retainer commenced, but Michie Shehadie appears to have continued to act up until 1991 at least.
5. The twenty year lease from the MSB to the Housing Commission which had been executed in March 1984 (see [47] above) was registered in December 1986. Ms Parslow's caveat was partially lapsed to allow for the registration of the lease. The dealing which partly lapsed the caveat is identified on a title search in evidence as a "request". It is not itself in evidence but was presumably consented to by Ms Parslow or by Michie Shehadie on her behalf.
6. The Housing Act 1985 reorganised the administration of public housing in New South Wales. The Act established the Housing Corporation, and provided that reference to the former Housing Commission was to be taken as a reference to the Corporation. The Act also established a government department named the Department of Housing and provided that the Department and the Corporation should act in a complementary manner so as to achieve a unified administration of the Housing Acts. These changes took effect from 1 January 1986.
7. Soon afterwards it was formally agreed between the Minister for Ports and the Minister for Housing that the forty-three residentials, then under a twenty year lease from the MSB to the Commission, would be transferred to the Department of Housing. According to a postscript in the Ombudsman's report, the agreement was announced in June 1986 and the transfer was affected in July. I assume that this means that the transfer was affected for financial and administrative purposes; as will be seen below, the transfer of Ms Parslow's residential from the MSB to the Housing Corporation was not registered on the title to the property until 1994.
8. The Ombudsman's chronology contains another postscript noting that the possession proceedings previously instituted by the Commission had been set down for hearing in February 1987. There is no evidence before me as to the fate of those proceedings. Nor is there any evidence as to what happened with the Ombudsman's investigations after the provisional report was issued in October 1986. But it does appear that the Department's approach changed.
9. In September 1987 resumption notices were gazetted so as to resume the residential properties. On the day of the resumption, the Department sent a further letter to "The Resident" of each of the residentials which emphasised that the resumption did not involve a departure from the new management regime which the Minister had been seeking to introduce since February 1985 (see [50] above). Indeed the resumption was said to be a consequence of that regime. The letter re-offered to each resident a tenancy of the part of the residential in which he or she lived. It stated that existing management contracts were not affected, and invited applications where there was no current management contract. The letter also stated that the resumption had the effect of converting any legal or equitable interest in the residentials into an entitlement to compensation. It stated: Whilst the Department considers that any interest you may have had would entitle you to little or no compensation you are most certainly encouraged to discuss this matter with your own independent adviser whenever you wish. Whilst the Department cannot give legal advice, it will certainly assist you in your enquiries in whatever way I can.
10. This new approach by the Department continued to meet resistance. The resumption was successfully challenged in proceedings in this Court brought by Mrs Ball. The decision of Lee J was delivered in April 1988. His Honour concluded that the resumption notices were invalid because they were expressed to be "for the purposes of" the Housing Corporation and this did not sufficiently identify the requisite public purpose for the resumption.
11. This decision did not, on the face of it, prevent a fresh, properly worded, resumption notice being gazetted. Ms Parslow's evidence was that she herself thought that the residents had succeeded on a technicality. Still less did the decision affect the notice to quit issued to Ms Parslow, which was based on the Commission's status as the holder of a twenty year lease granted by the registered proprietor, the MSB. Nevertheless, in July 1988 the Minister (Mr J Schipp, MP) wrote a letter to Ms Parslow which relevantly stated: You are aware of the undertaking I gave to Shirley Ball and others that I would restore the management structure of those Millers Point rooming houses, to its position as existed prior to 11 September 1987. This includes the rooming house of which you are a head lessee. I should however make it clear that there is no intention by the Department to offer any of the rooming houses for sale. Nor am I prepared to agree to any succession rights being granted to you in relation to your tenancy.
12. The Minister's letter went on to say that he had established a Departmental team to commence interviews and negotiations with a view to "seeking a resolution of all issues outstanding between the subject head lessees and the Department". The letter invited Ms Parslow to contact a member of the team to arrange a meeting and stated that when all interviews were concluded a recommendation would be submitted to the Minister. A letter from Ms Monnox of Michie Shehadie dated January 1989 is in evidence. The letter relevantly stated: The Department of Housing has submitted a number of proposals for your consideration in relation to the above matter. These proposals are set out as follows. TERM The Department proposes a ten (10) year lease with two (2) option of five years each. This provides the opportunity to rent the premises for a total of twenty (20) years. You would have the right to transfer the lease with the consent of the Department. However the Department would maintain a right of first offer. RENT The Department proposes a rental assessment based on the premises being conducted as a rooming house, that is, where a head tenant sublets the premises as rooms let in lodgings. The rental assessment is $140.00 per week for the first year for your premises. The Department proposes to review the rent annually. LESSEE'S RESPONSIBILITIES Under the terms of the proposal you as the Lessee would be responsible for the following: (1) Obtaining within a reasonable period and maintaining current a licence under Ordinance 42 of the Local Government Act 1919. (2) Any costs of internal work required for the issue and maintenance of such a licence. (3) Normal excess water, electricity, gas and heating. (4) Public risk work cover and common law insurance. DEPARTMENTAL OF HOUSING'S RESPONSIBILITIES The Department would be responsible for: (1) Any costs of external structural work required for the rooming house licence. (2) Rates and Taxes. (3) Building Insurance. As an alternative to the above scheme, the Department has assessed the rent for your premises on a single residence basis. The rental assessment of your premises is $400.00 per week.
13. In August 1989 a meeting took place between Minister Schipp and representatives of the RPG. There is no record of the meeting itself in evidence, but it is referred to in subsequent correspondence. It appears that proposals were put forward at the meeting which were then formally approved by the Minister on 24 August as the basis for leases of the properties in question. The rentals under the leases were to be fixed on the basis of boarding house rentals previously determined by the Department. This represented a significant increase above what was being paid under the MSB leases, and was to be phased in over the first eighteen months of the leases. But a concession was to apply to a number of the residential tenancy holders, including Ms Parslow, so as to limit the amount payable by them to twenty per cent of social security income plus twenty five per cent of other income. These concessions were to be reviewed annually.
14. Later that year, a formal lease between the Housing Corporation and Ms Parslow was executed. Ms Parslow's signature on the lease was witnessed by Ms Monnox of Michie Shehadie. The lease bore the date 1 December, but was expressed to commence on 1 October. The lease term was ten years with two five year options. The annual rent was $5,980, payable in weekly instalments of $115. The rent was to be reviewed annually as at 1 October in accordance with the CPI, with further reviews to market at the beginning of the fourth and seventh years of the lease and in the event of the exercise of the option.
15. The lease provided that the Housing Corporation, as landlord, was to be responsible for council rates, water rates (except excess water charges), land taxes and the like; and also for repair of the premises. Ms Parslow's obligations were to pay for electricity, gas and excess water, a public risk insurance policy and the cleaning of the premises. Ms Parslow was not to make any alterations or additions without the Corporation's consent. The lease provided that the property was to be used as a boarding house and required Ms Parslow to obtain, and keep in force, the necessary statutory licence for that purpose.
16. For some reason not revealed in the evidence, the registration of the lease was delayed for more than four years. In the meantime, the title to the property was formally transferred from the MSB to the Housing Corporation. The transfer was dated September 1992 but was not registered until January 1994. This resulted in the previous twenty year lease to the Commission merging in the transfer and being taken off the title. At the same time a fresh deposited plan was lodged, and a further folio created for the property. The 1989 lease to Ms Parslow was also registered.
17. Somewhere in all of this the caveat which had been lodged in 1985 on behalf of Ms Parslow disappeared from the title. There is in evidence a letter from the Department to Ms Parslow from April 1993 requesting her consent to the transfer of the property from the MSB to the Housing Corporation, which consent was said to be necessary because of Ms Parslow's caveat. There was no evidence of consent being given, but it presumably was because the transfer was later registered. Ms Parslow's lease as ultimately registered contained, in the Registrar-General's Office Use section, a direction for the removal of the caveat. It appears that with the grant of Ms Parslow's lease it was considered that the caveat had been satisfied, but there is no evidence as to whether a formal withdrawal of caveat was lodged or the removal happened as a result of administrative action within the Registrar-General's Department.
18. Meanwhile, problems had arisen about Ms Parslow's concessional rent. The lease was being administered on the Department's behalf by an external agent. The rent concession based on Ms Parslow's income was not being reflected in the rent statements issued by the agent. In March 1993, at the Department's request, Ms Parslow submitted tax records for the years ended 30 June 1990, 1991 and 1992. These show that she was receiving some income by way of salary or wages but making a loss on the boarding house operation. She was also receiving welfare payments, in the form of a single mother's allowance.
19. Despite the provision of this information, the rent issue dragged on. In August 1994 the Department's Commercial Manager for the Central Sydney Region, Mr Roger Sutton, wrote to Ms Parslow providing her with statutory declarations to be completed for the twelve month periods ended 30 September 1990, 1991, 1992, 1993 and 1994 (this was presumably to align the financial information to the lease, which had begun on 1 October, instead of the tax year beginning on 1 July). In October 1994 Ms Parslow submitted the statutory declarations setting out welfare receipts, boarding house income and other income for each of those periods. These showed that the losses from boarding house operations were continuing.
20. While the to-ing and fro-ing about rent took place, there were regular requests by Ms Parslow to the Department and its agent to deal with maintenance issues. This included such matters as replacing floorboards, making the hot water system work, replacing downpipes and checking the slates on the roof.
21. In October 1995 Ms Parslow wrote to the Regional Director of the Department complaining that she was shown in the agent's records as being $135,000 in arrears. She stated: This "debt" against my name has also created extreme difficulty in able to establish a loan in order to upgrade the property to provide adequate facilities. To date I remain on the Sole Parents Pension and restore and maintain the property with my own labour and value my role as caretaker of this Heritage building. I do however find it impossible to invest further till this matter is dealt with and would appreciate your immediate attention.
22. In November 1995 Mr Sutton calculated Ms Parslow's concessional rent up to 30 September 1994. It was significantly more than the payments Ms Parslow had made, leaving arrears of approximately $5,600. The evidence does not reveal why it took so long to perform the necessary calculations and adjust Ms Parslow's rent statement.
23. After this point, there is a gap in the documentary evidence until 1998. It appears that Ms Parslow's rent payments remained, or had fallen back into, arrears. There was a meeting between Mr Sutton and Ms Parslow in August 1998. The Departmental file contains statutory declarations from Ms Parslow, dated on the day of the meeting, setting out her welfare and income details for the twelve month periods ending 30 September 1995 to 1997 inclusive. These showed little or no boarding house income but showed continued expenses, resulting in further losses. A further statutory declaration from Ms Parslow on the file, of the same date, stated: During the period 1994 - 1998 inadequate facilities and family circumstances prevented income.
24. At the meeting in August, Ms Parslow undertook to reduce her rental arrears by $5,500 by 31 December. On 13 October, the Department's agent wrote to Ms Parslow noting that only $500 had been paid since August, her rent for the period being $377.68. The agent pointed out that there were only twelve weeks left before 31 December and invited Ms Parslow to "make some special efforts to accommodate the generosity of the Department of Housing" by increasing her payments and making payments on a weekly basis.
25. In October 1998, Ms Parslow approached another law firm, Gilbert & Tobin, for pro bono assistance. A solicitor from that firm discussed Ms Parslow's case with Mr Sutton in November. Mr Sutton's note recorded: Lease Renewal: I indicated the lease provides for an option of renewal in 1999 with notice of between 3-6 months notice conditional upon there being no breach of lease. However, Rental is outstanding in the sum of at least $8,000 for the period of 1989 to 1997 following statutory declarations. The SD for 1998 has yet to be completed. I advised him that I conveyed to Parslow at our meeting that if she was in arrears of rental, the Department would consider that a breach of lease. This would jeopardise her lease renewal. She committed to reduce her arrears by $5,500 by end of 1998. I stated that from advice from our agent that no attempt has been made to reduce arrears and it was probable that she has not even contacted our agent on the matter. I emphasised that the Department has been more then generous in the treatment of her, although she has made no effort to help herself. She pays on average $40 per week rental on a property valued between $500,000 to $1 million. He sought what the attitude of the Department would be in respect to non use of the property as a boarding house. I explained that the lease does not specify the number of tenants, rental to be charged or the social mix that should apply to the property. If she had one tenant, she would be complying with the lease. She has had occasional tenants residing there as well as her daughter. If daughter is paying rent, then she is complying. The latter would be paying a nominal rental & this would be reflected in her statutory declarations & rental calculated. Lease buy back: He inquired as to whether this was an option although he had not discussed this with his client. I stated this may be an option and is provided for in the lease, however, I was not sure how this related when a concessional rental applied. Also the concessional rental applied to Parslow & not the property. I also explained that she could not sell the leasehold interest then expect the Department to house her. I also stated that an option available was to surrender her lease at no cost to the Department in return for allocation of public housing in Millers Point, say a 2 bedroom unit, subject to meeting criteria. She probably would meet this. Calculation of concessional rental: Concessional rental is determined by 20% of social security and 25% of other income. Her signed lease states a market rental with normal review provisions, but this has not been applied. The reasoning for concessional rental applying possibly related to a form of compensation back in the late 1980's when the Department attempted to resume the properties even though the properties belong to DOH. The concessional rental is confirmed in separate correspondence and is not tied to the lease. Parslow stated to the solicitor that she wants to spend $10,000 on the property so she can lease as boarding house. I advised him that she wanted to do this some years ago but nothing eventuated. She also does not want to spend money if she cannot guarantee her lease. No commitment given in this regard.
26. In December 1998 Ms Parslow delivered a cheque for approximately $4,700 to the Department's agent as a payment towards her rent arrears. In March 1999 Gilbert & Tobin forwarded on Ms Parslow's behalf the remainder of the $8,000 or so in arrears for the period up to 30 September 1998. This was done with unnecessary ill-grace, Gilbert & Tobin having previously alleged that the Department's agent had agreed to remit the balance and that Ms Parslow had committed herself to borrowings on that understanding, only to abandon that position when the Department refused to back down.
27. In June 1999, Ms Parslow wrote to the Department asking for the Department to nominate a rent for the first five year option period, commencing on 1 October. This was the first step in the procedure prescribed by the 1989 lease for exercising the option. But the next step required a revaluation and Ms Parslow (along with, it appears, other holders of other residential tenancy holders) objected to the valuation obtained by the Department. Eventually a deed was entered into in July 2000 providing for the appointment of a valuer and setting out a procedure for renewal of the lease after the valuation had been determined.
28. The revaluation resulted in a significantly higher rent being fixed for the property. But Ms Parslow maintained that the rent concession arrangements granted at the time of the ten year lease in 1989 applied to the option period as well. The Department did not agree. In November 2000, Ms Parslow signed a notice purporting to exercise the option but on the footing that the rent concession would continue. This was not acceptable to the Department, which indicated, however, that it was prepared to convert the tenancy of the property to a standard public housing tenancy. On Ms Parslow's behalf Gilbert & Tobin made a number of time-consuming attempts to have the Department agree to Ms Parslow having life tenure for herself and her daughter, Arana, or at least for herself. Predictably, the Department would not agree to this. For her part Ms Parslow was not prepared to pay the increased rent.
29. Ms Parslow's attempt in November 2000 to exercise the option on a different basis to that provided for by the lease (i.e with a rent concession) was ineffective legally. It appears that the option was never formally exercised and the lease was never formally renewed. Eventually the matter was referred to the Department's Legal Services section with instructions to seek possession of the property and recovery of the arrears, then said to be more than $20,000. This happened in August 2002.
30. After the matter was referred to Legal Services, a further attempt was made to have Ms Parslow agree to the conversion of the tenancy. By this point Gilbert & Tobin's pro bono assistance period had expired and they were no longer acting for her. There is a letter in evidence from Mr Knaggs in March 2003 seeking a meeting for the purpose of finalising the dispute.
31. The evidence from this point becomes fragmentary and does not indicate whether any such meeting ever took place. But, if it did, it did not result in any agreement. It is not hard to see why. Ms Parslow was not prepared to accept the consequences, in terms of rent, of leasing the property to use it as a commercial boarding house. Equally she was not prepared to accept the loss of control involved in accepting a public housing tenancy.
32. Despite the impasse the officers of the Legal Services section did not take any recovery action. A further valuation was undertaken in 2004 which would have been the date for the second renewal if the first renewal had taken place. Ms Parslow apparently wrote seeking a "further five year term" from 1 October 2004, although the letter itself is not in evidence. Ms Parslow, however, objected to the rent increase resulting from the valuation and again it seems that no formal renewal ever took place. Eventually, having allowed the issue to drag on for seven years, in September 2009 the Department wrote to Ms Parslow giving notice that the lease would end on 30 October, 30 days after the 1989 lease would have expired if the options had been exercised.
33. The Department wanted Ms Parslow to move to alternative public housing nearby in Kent Street, Millers Point, on the termination of the Lower Fort Street lease in 2009. She refused. Eventually in September 2010 the Department granted a formal Residential Tenancy Agreement to her. This followed negotiations between the Department and Mr Robert Mowbray, a publicly funded tenant advocate for the Older Persons Tenants Service ("OPTS"), who was assisting Ms Parslow. Mr Mowbray witnessed Ms Parslow's signature on the Agreement. This lease was in the Department's standard form. The term was ten years. But the lease provided as follows in clause 36: UNDER OCCUPANCY The tenant acknowledges that the landlord may give a notice of offer of alternative premises on the basis that the premises are not fully used and occupied having regard to, among other things, the number of persons residing at the premises, the size of the premises and the nature of the premises.
34. A further set of terms in the lease, headed "Notes", provided as follows in cl 12: Alternative Offers 1. The landlord may give the tenant a notice of termination on the basis that the landlord has offered the tenant alternate social housing premises to those currently occupied by the tenant. 2. Before giving such a notice of termination, the landlord is to notify the tenant in writing of the landlord's decision to end the tenant's tenancy. The tenant then has 14 days in which to request the landlord to review this decision. No notice of termination can be given until any such review has been completed. 3. Unless the landlord and the tenant have agreed to a shorter time, the notice of termination is to give the tenant at least 30 days in which to vacate. 4. The notice of termination is ineffective unless the alternative premises, which are related to the notice, are available no later than 7 days before the existing premises are required to be vacated. 5. The notice of termination may relate to under occupancy in accordance with clause 36.
35. In March 2014 the Department wrote to Ms Parslow advising her of the decision to sell the government owned properties in Millers Point, including the property at Lower Fort Street. The letter invited Ms Parslow to contact a relocations officer for the purpose of assessing alternative accommodation. Further follow up requests were made over the ensuring months. Initially, Ms Parslow appears to have ignored the request for an interview. Eventually a meeting took place in February 2015 which was not a formal interview. By this stage, Ms Parslow was being represented through the free Tenants Advisory Service provided by Redfern Legal Centre. Further requests were made for an interview which appear to have been ignored by Ms Parslow.
36. Eventually, in June 2016, a formal relocation statement was issued to Ms Parslow identifying the criteria as assessed by the Department for Ms Parslow's alternative accommodation in default of any formal relocation interview. A first formal offer of accommodation in Campbell Street Glebe followed in September and then in November a second formal offer of accommodation was made in Kent Street, Millers Point, three hundred metres from the house at Lower Fort Street. Ms Parslow ignored or rejected these offers. She did not seek to appeal the offers to the Housing Appeals Committee under the procedure available to public housing tenants under the Residential Tenancies Act 2010. In January 2017, the Department issued a formal notice of intention to issue a notice of termination of her tenancy asking her once again to reconsider her position. She did not. A formal notice terminating her lease was issued on 3 March 2017.

Ms Parslow's witnesses

1. As mentioned, Ms Parslow and Ms Sutton gave evidence in support of Ms Parslow's case. Both of them were cross-examined.
2. Ms Sutton was born in November 1940. She was born, and grew up, in the Millers Point area; her father and both of her grandfathers were waterside workers. Her parents lived in a residential and she lived with them until she married in 1964. Thereafter she and her husband lived in a number of boarding houses in Millers Point. Ms Sutton gave evidence of her own experience in the 1960s and the first half of the 1970s which was consistent with the picture presented in the Ombudsman's report. Ms Sutton described how "Jack the rent man" would visit the MSB properties. She said she made arrangements through him to get her own property which she did, in Merriman Street in 1966, and was told that if she "kept her nose clean" she would be there for life.
3. Ms Sutton's marriage broke up and her husband moved out of the Merriman Street property in around 1973. She left in about 1975 and went overseas. In about 1976 or 1977 she was looking for a place of her own in Millers Point and moved into Sally Clough's boarding house. Through Shirley Ball, Ms Sutton found out that another residential tenancy holder wanted to "sell" her boarding house in Argyle Place. Ms Sutton negotiated a price of $12,000. She spoke to people in the MSB offices who told her that the MSB knew that money changed hands for goodwill but that the MSB was not involved in that and it was between her and the existing landlady. Eventually, in July 1978, the transaction went ahead and the MSB granted her a standard form tenancy for the Argyle Place property.
4. The Argyle Place property which was the subject of Ms Sutton's tenancy was in the OHRA. Ms Sutton therefore received a letter from the MSB in September 1982 advising that the Housing Commission was to take over management of the property (see [39] above). She said she was subsequently told by an MSB official that she should continue to pay "residential rent on your premises in order to keep open the option of resale as a residential at a later date".
5. Ms Sutton's evidence was only indirectly relevant. She gave her evidence straightforwardly and I accept her account of events up to 1978 so far as it goes, bearing in mind the usual limitations following from the fact that the events took place between forty and fifty-five years ago. I am less confident of Ms Sutton's evidence about the alleged conversation with an MSB official after September 1982, but that alleged conversation is not relevant to the resolution of these proceedings and I do not need to form a view on it.
6. Ms Parslow was born in May 1942. She grew up in country New South Wales before qualifying as a registered nurse in 1963 or thereabouts. About two years later she went to art school. From 1968 until the early 1970s she was involved in a restoration project on a cottage at Bungendore in the New South Wales Southern Tablelands.
7. Ms Parslow's evidence was that when she moved to Millers Point in 1976, she was from the outset looking to obtain a residential tenancy of a boarding house so as to do it up. She said that she looked at a number of residentials, including the property at Lower Fort Street which is the subject of these proceedings. At the time, one of the residents, Jock Marshall, was acting as "unofficial caretaker" on behalf of Tom Ball. Ms Parslow said that she moved in initially as a lodger but within a month or so was asking Mr Ball to transfer the head lease into her name. She said that Mr Ball would only do this if she would look after the existing tenants and that she undertook to do so. She said that within a few months of moving in, she was managing the boarding house and paying the utility bills. She also said that she asked the MSB to replace slates on the roof and a leaking pipe. She added: I spoke about my intention to do internal work to the property and no one told me that I couldn't do the work.
8. In her affidavit, Ms Parslow referred to her execution of the weekly tenancy agreement with the MSB in December 1981. She only did so at a high level of generality. She referred to Mr Knaggs assisting her and taking care of all of the negotiations. She said she attended the MSB with Mr Knaggs to sign the agreement and said there was no mention of it being a weekly tenancy or of any circumstances in which the tenancy might be terminated.
9. Ms Parslow said in her affidavit that she believed that by signing the lease she had "security of tenure indefinitely" and that she could only be evicted if she did not pay the rent or otherwise breach the lease. She said: I am not a fool, I wouldn't have undertaken the major works that I did if I thought I could be evicted out at a week's notice.
10. She also said that she was responsible for internal rectifications of the property but the MSB was responsible for external works.
11. In supplementary evidence in chief, Ms Parslow was asked whether she received any notice from the MSB after entering into the November 1981 tenancy agreement that the MSB might terminate the tenancy at short notice. She said she did not. At the time this evidence was given, the entry in the Ombudsman's chronology about a letter to this effect being sent at the time (see [37] above) had not been referred to by counsel and the significance of this evidence was not clear to me (in saying this, of course, I do not intend any criticism of counsel for Ms Parslow). At a later point in the evidence in the hearing Ms Parslow was recalled and cross-examined on the point. She said that such a letter would have been dealt with by Mr Knaggs and that she could not recall him telling her anything about any such letter. Ms Parslow gave no evidence, either in her affidavit or orally, about the other entries in the Ombudsman's chronology referring to dealings between the MSB and Mr Knaggs and Mr Ball on her behalf (see [36] and [37] above). Nor was she cross-examined on those entries.
12. I do not accept Ms Parslow's evidence as an accurate or reliable account of the events leading up to her execution of the weekly tenancy agreement. The Ombudsman's chronology shows that repeated efforts were made by Mr Knaggs, with the assistance of Mr Ball, to get the MSB to depart from the policy which it had adopted (at the Minister's direction) of not approving any transfers (see [36]-[37] above). Clearly Mr Knaggs, at least, regarded it as important to have the MSB issue a fresh tenancy agreement to Ms Parslow. It is likely that this was the subject of specific advice to Ms Parslow. But Ms Parslow's evidence did not refer to this and did not seek to explain how she came to enter into the tenancy agreement at all.
13. Furthermore, it was obvious on the face of the agreement that it provided for a weekly tenancy. Ms Parslow did not explain how this was consistent with security of tenure. Merely to say, as she did, that there was no express mention of the lease being terminated does not answer the question. Ms Parslow's recollection of her maintenance obligations was also inaccurate, having regard to the terms of cl 6. Given the importance which appears to have been attached by Mr Knaggs to obtaining the residential tenancy agreement, it is hardly likely that he would not have explained the terms in general, and the warning given by the MSB about tenure in particular, to Ms Parslow.
14. It is fair to say that Ms Parslow could have been cross-examined about these matters and was not. But the onus lies on Ms Parslow to present a convincing case in support of her estoppel claim. She has not addressed critical questions about her case which arise out of the evidence. I am not saying that her evidence on this subject was deliberately misleading or inaccurate. Ms Parslow may simply have forgotten the detail of the relevant events. But on any view her account is unreliable.
15. Ms Parslow appears to have joined the RPG when it was formed in 1982. She said in cross-examination that members of the community were very upset by what she characterised as the Commission's "heavy handed tactics".
16. Ms Parslow's evidence was that Shirley Ball was a rather domineering character and she (Ms Parslow) did not play a prominent role in the group's activities because she had a baby daughter to look after at the time. She did however attend meetings at Ms Clough's house. Ms Parslow said: I don't remember the exact outcome of these meetings but I felt that what was going on wasn't right.
17. In her affidavit, Ms Parslow deposed to having "received" the Housing Commission's notice to quit on 5 March 1985, which was the date on which it was issued. In her oral evidence, she said that that was incorrect. She said she had never "formally" received the notice. She said she did not answer the door when an attempt was made to deliver the notice to her. She described a scene where those who were delivering the notice were knocking on the door; one of the residents who was at home was afraid and distressed; Ms Parslow sent her daughter, Arana (then aged four or five) to the door to say that her mother could not come; and some glass was broken.
18. Ms Parslow's evidence about the events leading up to the notice to quit was again superficial. The documentary record shows that there was an intense conflict going on about the future of the residentials. The scene over the notice to quit described in Ms Parslow's oral evidence illustrates the lengths to which she was prepared to go in resisting the takeover by the Housing Commission. Ms Parslow's feelings were obviously far deeper than a simple perception that what was going on "wasn't right".
19. Even if Ms Parslow did manage to evade formal service of the notice, I am satisfied that she was aware that it had been issued and that the Commission had formally terminated any existing legal tenancy she had previously had from the MSB and was seeking to obtain formal possession of the premises so that it could establish its own tenure arrangements for the property. Ms Parslow said in cross-examination that the notice to quit marked the point at which she realised that the Housing Commission did not recognise that she had any tenure in the property. I suspect she was actually aware of that from the beginning.
20. In her affidavit, Ms Parslow referred to briefings being given by Michie Shehadie to members of the RPG, and in particular a briefing about the Departmental proposal of February 1989 for a ten year lease with two five year options (see [80] above). She said: I didn't have much of an opportunity to ask questions about what this would mean. There were other people who had louder voices and asked more questions.
21. Concerning the lease ultimately executed in late 1989 she said: I didn't feel as though I could negotiate any terms of the lease with the Department. It felt like a take it or leave it situation and it had been a long battle. We were all exhausted and completely burnt out. I didn't feel I had a choice but to sign the lease. … I thought the lease meant continuity. I thought that I would lose some independence and that there would be more intrusive management by the Housing Commission, but I didn't think that my right to be here would change. I thought my lease would continue long after the twenty years had passed. I didn't think that by signing the lease I would be giving up my right to live here indefinitely and I still believed it was my responsibility to do the internal maintenance of the property.
22. Again I think that this evidence was too generalised and superficial to be reliable. It did not mention the caveat lodged by Michie Shehadie on Ms Parslow's behalf over the property, or the partial lapsing of the caveat in December 1986 to allow registration of the Housing Commission's twenty year lease from the MSB. Nor did Ms Parslow mention the Department's subsequent request in 1993 for consent to removal of the caveat to allow the transfer from the MSB to the Housing Corporation to proceed (see [85] above). The caveat was lodged to protect the interest claimed by Ms Parslow and one would expect that Michie Shehadie gave advice to Ms Parslow on the strength or otherwise of her alleged interest and the function of the caveat in protecting it.
23. Again, Ms Parslow's recollection of the supposed lifetime tenure and of being responsible for internal maintenance is not an accurate reflection of the terms of the lease she actually entered into. Michie Shehadie may well have given the advice collectively to the group they were representing but the advice would presumably have covered Ms Parslow's position and there is no doubt that Ms Parslow received a letter from Michie Shehadie which summarised the Department's proposals (see [80] above). It may be that Ms Parslow is now simply unable to remember what she was told at the time, but on any view I think her evidence is unreliable.
24. Ms Parslow gave evidence of work she did on the house after 1976. Ms Parslow paid for the materials and for the hire of any necessary equipment. Where possible, she undertook the labour herself, or with friends, but in some instances she paid a tradesman to do the necessary work.
25. Ms Parslow said that the major problems with the house were the state of the walls and the floors. Some of the floors were badly affected by damp and the plaster and mortar in the walls were crumbling. The work on the floors involved taking up the existing floor coverings and painting or sanding the floor boards. The work on the walls involved patching the holes, drying out the damp areas, stripping old paint, sealing and painting.
26. The work was done in stages. The earliest work was on the lowest level of the building which was below ground level on the street frontage and was referred to in the evidence as the basement. It consisted of a bedroom and a kitchen. Ms Parslow restored the bedroom first. The floor required additional work, in the form of removing damp earth under the floor, replacing damp joists and removing and drying out and reinstalling the floor boards. Ms Parslow also installed a new gas stove and hot water in the kitchen. She also had an electrician install a power point, and at the same time he installed a power point on each other level in the house. Work on the basement bedroom was done between 1977 and early 1980 and work on the basement kitchen was "largely" done by 1980.
27. The next area done was the attic room, involving both the floors and walls. This work was done between 1978 and 1981.
28. Work on the second floor began after the tenant who had been there in 1976 (and was Tom Ball's brother-in-law) moved out. This happened after Ms Parslow obtained the residential tenancy for herself in December 1981. The work appears to have been completed by about 1982 and 1983. It also consisted of two bedrooms and a verandah.
29. Work on the first level of the house, which was at street level, and consisted of two bedrooms and a balcony was begun in about 1982 and took place similarly over a period up to 1986. Work on the walls and skirting boards of the halls and stairways appears to have been done over the same period.
30. Ms Parslow had the whole of the lowest (basement) floor sanded by a friend (using hired equipment which she paid for) in 1986. She had all the floors (except for the attic) professionally sanded in 1992. Ms Parslow also whitewashed the walls in the backyard. Between 1985 and 1990 she laid solid stone blocks in the backyard.
31. Not all the maintenance and repair work which was done on the house was done by Ms Parslow. I have already referred to the requests by Ms Parslow in the Departmental files relating to slates, downpipes and the like (see [88] above). Ms Parslow also referred to the Housing Commission fixing leaking sewerage pipes at her request in about 1985 (the sandstone blocks in the backyard were apparently a replacement for asphalt which was removed for the purpose of doing this work). She also said that at some point the Department had the house completely rewired. In cross-examination, Ms Parslow referred to the Department providing internal bathrooms, undertaking repairs to the floors and re-slating the roof.
32. In cross-examination, Ms Parslow said that she worked, at least part time, as a teacher or lecturer until 1979. She was not asked about the salary income referred to in her tax returns from the early 1990s (see [86] above).
33. Ms Parslow said that when she took over the lease of the Lower Fort Street property, the sub-tenants were retired workers who lived there on a permanent, or at least a long term, basis. The last of these long term sub-tenancies ended in the mid-1990s. Ms Parslow did refer to a number of "short term" sub-tenancies after that, but it is not clear whether these were arms-length arrangements. At one point she spoke of getting members of her family in, and she also said that her daughter, Arana, received a government benefit (AusStudy) from about 1996 from which she paid rent. I suspect that in light of the Commission's attitude as recorded in Mr Sutton's note (see [93] above), that these arrangements were put in place by Ms Parslow only so that she could say that she was complying with her obligation under the lease to operate the property as a boarding house.
34. Ms Parslow accepted that after 2000 even the "short term" tenancies ceased. She claimed that she was unable to offer tenure to sub-tenants because of the dispute with the Department. She characterised this (unjustifiably, on the evidence) as "government interference". The documentary evidence records suggestions by Ms Parslow that she wished to spend money on doing up the house so that she could expand the rental operations, but these all apparently came to nothing (see [93] above). At various stages of her cross-examination Ms Parslow made it clear that she had never been a person who was interested in financial matters. She may well have convinced herself that she was performing a useful social function in providing accommodation for her long-term tenants and in undertaking restoration work on the property, but I am not satisfied that she ever treated running the boarding house as a business venture.
35. Ms Parslow said that in 1999 she received a "termination notice" and approached Gilbert & Tobin for assistance at that time. There is no "termination notice" in evidence and Ms Parslow's evidence may refer to what Mr Sutton had said at the meeting in August 1998 about the need to clear the arrears before the option could be exercised (see [93] above). Ms Parslow said she was shocked to receive the "termination notice" because she believed when she signed the 1989 lease it lasted for twenty years. She said: It was a very difficult time. There was a lot of pressure on me and the other landladies to sign over to the Department. A lot of people did sign over at that time. I thought it was wrong and that I shouldn't have to leave. I left things in the hands of Gilbert & Tobin to fight the termination notice. I do not ever remember being told specifically by Gilbert & Tobin at the time that I had a life tenancy.
36. Again, the documentary evidence shows that Ms Parslow's affidavit evidence on this subject was superficial and unreliable. She did not refer to the arrears which had accrued by the end of 1998 as a result of her failure to keep up with the (concessional) rental being charged by the Department. Nor did she refer to her execution of the July 2000 deed which provided for a revaluation and increased rent on the premises as a prelude to exercising her option to renew the lease. Nor did she refer to the repeated but unsuccessful efforts by Gilbert & Tobin on her behalf to obtain a commitment from the Department which would allow her and her daughter, Arana, to live in the property. One would expect that Gilbert & Tobin regularly reported to her on their negotiations with the Department and on her entitlements under the 1989 lease.
37. Similar observations apply to Ms Parslow's evidence concerning the public housing lease which she entered into in September 2010 with the assistance of Mr Mowbray. She said she did not want to become a public housing tenant because she "knew that the Department's management style was very intrusive". However: In the end I felt as though if I wanted the Department to stop trying to make me leave I had to become a public housing tenant so I signed the ten year lease. I viewed this action as a way of continuing to give effect of the right I had to live in the property. I believed that at the end of the ten years I would continue to live there.
38. This evidence failed to refer to the clause in the lease which explicitly provided for the Department to terminate the lease and allocate other alternative accommodation to Ms Parslow. It is hardly likely that Mr Mowbray did not advise her of this.
39. A handful of relevant documents were attached to Ms Parslow's affidavit (these include the documents referred to at [112] and [113] above). But it emerged in the course of Ms Parslow's oral evidence that this was only part of a much more extensive collection of documents in her possession. The letter from the Housing Commission to Ms Parslow in 1983 requesting her consent as a caveat holder to the registration of the transfer from the MSB to the Housing Corporation (see [85] above) was produced and tendered in the course of the hearing. This apparently came from what Ms Parslow described as a "huge file of documents" she had, covering the last forty years. It appears that discovery was never sought, or ordered, in the proceedings, so there was no requirement for Ms Parslow to disclose the documents prior to the trial. But the existence of a large cache of potentially relevant documents which Ms Parslow has not looked at does underline the superficiality of her affidavit and oral evidence.
40. I have referred above to a number of areas where I think Ms Parslow's affidavit evidence was unreliable. I thought this impression was confirmed by her cross-examination. Her already vague evidence tended, to my observation, to become vaguer under cross-examination. She appeared to me to have developed a fixed conviction that she is, and always has been, entitled to occupy the Lower Fort Street property on her own terms. I think that, in general, it would be unsafe to rely upon her evidence unless there is some persuasive extraneous reason to accept it.

Housing Corporation's witnesses

1. Mr Knight and Mr Cureton were both cross-examined on the Commission's sale of the Millers Point properties in accordance with the policy announced in 2014. Mr Knight's evidence was that the sales have been more successful than had first been expected. Initial estimates had been that the sales would raise $500 million. Almost that much has been raised now and the revised estimate is that $700 million will ultimately be received. Counsel probed the question of whether the proceeds had all been spent on public housing. Mr Knight said that more than half the money raised so far had been spent or earmarked for spending, mainly in western Sydney, Wollongong and Coffs Harbour. Counsel did not ultimately suggest that the monies had been, or would be, applied for any purpose other than public housing, although Mr Knight conceded (inevitably) that no particular program of the Department depends on the sale of the Lower Fort Street property.
2. There is no formal valuation of the property in evidence but Mr Knight gave evidence, without objection, that, based on sales of similar properties in the area as part of the Commission's disposal program, the property might be expected to sell for between $2.5 million and $3.5 million.
3. There was no challenge to the evidence of Mr Knight or Mr Cureton, which I accept.

Expert evidence

1. Expert evidence was given by quantity surveyors on both sides. Ms Parslow's expert was Michael Hedley Sanig. The defendant's expert was Steven Bregovic of Newton Fisher Group.
2. In their letter of retainer, Ms Parslow's solicitors asked Mr Sanig to advise on three questions. The first was the extent to which the renovations undertaken by Ms Parslow improved the current value of the property. The second was the cost of undertaking the renovations. The third was whether the works preserved or diminished the "heritage value" of the property.
3. In his report, Mr Sanig only answered the second question. He explained that he had no expertise sufficient to answer the first or third questions. Mr Bregovic responded only to Mr Sanig's answer to the second question concerning the cost of the renovation. There is thus no evidence before the Court as to the extent, if any, that the renovations undertaken by Ms Parslow contributed to the current value of the property in the Commission's hands. But it was clear from Mr Sanig's evidence that some of the painting work, in particular, did not last forever and regular repainting needed to be done. His figures assumed that the areas originally renovated by Ms Parslow had been repainted by her at ten year intervals thereafter.
4. Mr Sanig's figure for the cost of the works was approximately $78,000. Mr Bregovic's was approximately $34,000. Both of these figures were in today's currency values (less GST, which did not exist when Ms Parslow did the work). It was too difficult to try to estimate what the costs would have been at the time when the work was done. But counsel for the parties agreed that I could use the CPI as a rough guide.
5. The only significant difference between Mr Sanig's and Mr Bregovic's figures was the costing of work done by Ms Parslow. Mr Sanig included a labour component for all work, whether done by Ms Parslow or not. Mr Bregovic only included a labour component for work which Ms Parslow had done by a tradesman. Mr Sanig indicated that where the work had been done by Ms Parslow he had applied a somewhat discounted figure to reflect the fact that Ms Parslow was not a professional. By the same token he pointed out that had the work been done by professionals it would likely have been more expensive, because, on his instructions, Ms Parslow worked around the residents. This would not have been feasible had the work been professionally done. Although Mr Sanig did not fully explain his discounting process, I am content to accept his figure as an appropriate one if allowance is to be made for Ms Parslow's labour. But whether or not that should be done is a question for the Court rather than the experts. I deal with it at [198] below.

Analysis of Ms Parslow's claim

1. Ms Parslow's Statement of Claim in the equity proceedings seeks a declaration that she: Is entitled on the ground of estoppel by convention, or in the alternative, a proprietary estoppel, to a tenancy for her life or such other period as the Court determines in the [Lower Fort Street] property upon such conditions as the Court thinks fit.
2. The Statement of Claim also seeks orders preventing the Housing Corporation from interfering with Ms Parslow's quiet enjoyment, and in particular from pursuing the possession proceedings. Alternatively, equitable compensation or damages are claimed.
3. The basis for the alleged estoppel by convention is pleaded as follows: It was a common assumption of fact shared by both [Ms Parslow] and the [MSB] in entering into and implementing the 17 November 1981 Deed that despite the Deed providing for a weekly tenancy, [Ms Parslow] had security of title or a tenancy for life in [the Lower Fort Street property] subject to complying with the terms of the lease in paying rent.
4. The pleaded basis for the alternative claim of proprietary estoppel is as follows: During the period from 1976 until about 1986 the [MSB] and the [Housing Commission] as the case may be, were informed that [Ms Parslow] proposed to carry out the [renovation work undertaken by Ms Parslow] but acquiesced in the carrying out of that work by [Ms Parslow] because of the policy that tenancies over boarding houses in Millers Point were long term, despite being weekly tenancies and/or because it knew or should have known [Ms Parslow] had acted on the assumption she had security of tenure and a tenancy for life in [the Lower Fort Street property].
5. Despite the reference to conduct up to 1986, the Statement of Claim pleaded that the issue of the notice to quit in March 1985 was a breach of the plaintiff's "entitlement to a tenancy for life". Further breaches of that alleged entitlement were the Housing Corporation's alleged conduct in "requiring" Ms Parslow to enter into the 1989 lease, the notice issued in September 2009 that the lease would come to an end on 30 October, "requiring" Ms Parslow to enter into the 2010 public housing tenancy and issuing the March 2017 notice of termination.
6. The plea concerning the notice to quit is consistent with Ms Parslow's concession that from the time of the issue of the notice to quit, at the latest, she was aware that the Housing Commission did not accept that she had any entitlement to a lifetime tenancy. Accordingly, only conduct of the MSB up to March 1984, and conduct of the Housing Commission up to March 1985, could sustain a claim of estoppel.
7. In supplementary submissions, counsel for Ms Parslow set out the terms of the tenancy said to arise from the estoppel on which she relies. The term of the lease was said to be for Ms Parslow's lifetime or until she decides to vacate the property. The rent was said to be the current rent (twenty five per cent of Ms Parslow's pension), subject to annual CPI adjustments. The lease was also to include a term that Ms Parslow keep the premises "in good order and repair, fair wear and tear excepted". The lease is otherwise said to include the terms of the deed of 17 November 1981 excluding clause 1 (which provided for a weekly tenancy and a rental of $47 per week) and clause 3 (which required that the premises be used only for the purposes of a "residential"). Although not referred to by counsel, I think that clause 6 (quoted at [38] above) would also have to be excluded.
8. Counsel's submissions characterised the "estoppel by convention" as a "legal" as opposed to an "equitable" estoppel. At other points in the submissions counsel relied upon what is described in older authorities as estoppel in pais and is referred to by Mr Handley QC (KR Handley, Estoppel by Conduct and Election (2nd Ed, 2016) at [1-001]) as "estoppel by representation". It appears that counsel was seeking to characterise the estoppel as giving some rise to some form of legal, as distinct from equitable, entitlement. The reason for this appears to have been because of a perceived requirement that some knowledge on Ms Parslow's part of her legal rights would be necessary if she were to relinquish such a legal interest.
9. I do not accept the distinction between "legal" and "equitable" estoppel which counsel sought to draw. Estoppel by representation is a doctrine which depends upon a representation of an existing state of fact (as the wording of Ms Parslow's Statement of Claim quoted at [155] - [156] above accepts). The doctrine may be of equitable origin, but it now applies both at law and at equity: Handley at [1-004]. It does not of itself give rise to proprietary interests, whether legal or equitable. All it does is prevent the party bound from departing from the representation. Other forms of estoppel, whether characterised as promissory estoppel or proprietary estoppel, are different. They are not limited to representations of existing fact, but include representations or promises as to future conduct. They also operate as a direct source of legal obligation rather than just compelling adherence to an assumed state of affairs: see Handley at [1-009]-[1-013].
10. For the purpose of an estoppel by representation an existing state of fact may include the nature or terms of a legal relationship. If the parties have entered into a transaction and one party makes a representation that the transaction had a particular legal effect, an estoppel may arise which prevents that party from departing from that representation even if, in law, the transaction did not have that effect: see Handley at [1-012]. This is conceptually different from an estoppel based on a promise to act in a particular way in future, although the effect for practical purposes may be similar.
11. For present purposes, I do not find the label of "estoppel by convention" a useful one in distinguishing between the relevant types of estoppel. Handley's view (at [8-001]) is that estoppel by convention must be based on a statement of fact (in the sense just discussed). In any event, the critical distinction in this case is between an estoppel based on a statement of existing fact and other types of estoppel which are not so limited. Labelling an estoppel as arising out of a conventional basis of dealing does not assist in making this distinction.
12. The representation pleaded in Ms Parslow's Statement of Claim was that Ms Parslow "had a tenancy for life". But although this is expressed in terms of an existing state of fact (in the sense discussed above) that is purely semantic. On its face, the November 1981 deed provided for a weekly tenancy. There is no foundation in the evidence for suggesting that the MSB represented (or the parties adopted as the conventional basis of their dealing) that the deed actually provided for something which on its face, it did not, namely a lifetime tenancy. Any representation arising from the conduct of the parties could only have been a representation that the MSB, although legally entitled to terminate the tenancy on one week's notice, would not do so, or at least would not do so except in certain circumstances. Such a representation would have been a representation as to a future matter, not an existing state of affairs. In my view, Ms Parslow's only available claim is an equitable claim based on equitable estoppel.
13. It is also important to note that, for Ms Parslow to obtain the relief that she seeks she must establish representations going beyond the mere non-termination of the November 2001 lease from the MSB. Hers is a wider case not tied to the particular terms of that lease and in some respects inconsistent with them.
14. It follows that the relief sought by Ms Parslow is equitable in nature. If Ms Parslow is entitled to any relief, it will be in accordance with her primary claim, namely a declaration and injunctions restraining the Housing Corporation from acting inconsistently with the lifetime interest which she claims. Although damages are claimed, I see no basis for any such claim.

Limitation, laches and waiver

1. The Housing Corporation pleads by way of defence the statutory bar in the Limitation Act 1969, s 27(2), which applies to an action for the recovery of land or an interest in land. The section applies also to analogous equitable interests: s 36. In reply, Ms Parslow pleads that because she is in possession, no cause of action has yet arisen: see s 38. Alternatively, she pleads that the cause of action only arose at the time when notice of termination was given in March 2017.
2. To the extent that equitable relief is claimed, the Housing Corporation relies on the defence of laches. The Corporation also pleads a defence of waiver.
3. It is convenient to address laches first. It is available whether or not there is a statutory limitation period applicable by analogy and whether or not any such statutory limitation period has expired: CSR Ltd v Amaca Pty Ltd [2016] VSCA 320 at [259]-[262]. The defence requires an "inordinate delay" on the part of a plaintiff in bringing the claim. In the present case, the delay is undoubtedly a long one. As we have seen, Ms Parslow's claim is based on conduct up to March 1985 when the notice to quit was issued. On the logic of the plaintiff's case, her entitlements by estoppel had crystallised at that time, and at any time thereafter proceedings might have been brought to vindicate her claim. The fact that a caveat reflecting the claim which is now made was filed as long ago as October 1985 underlines the delay.
4. It is clear, however, that "mere" delay, consisting of nothing more than a failure to mount a claim, is not, of itself, enough to give rise to the defence of laches. Something more is required. That may be supplied by detriment as a result of the delay. It may also be supplied by conduct of the plaintiff amounting to acquiescence in the violation of the plaintiff's alleged equitable rights.
5. Counsel for the Housing Corporation contended that its defence of the proceedings had been prejudiced by the delay as a result of loss of evidence which might otherwise have been deployed to meet Ms Parslow's claim. This is a recognised category of prejudice, but it is not at large. It is not enough that evidence may have been lost. The Court must be satisfied that evidence has actually been lost which might have made a difference, although it is not necessary to demonstrate that evidence would definitely have altered the result: Orr v Ford [1989] HCA 4, (1989) 167 CLR 316 at [330].
6. Laches is an affirmative defence and the onus of establishing the necessary prejudice lies on the defendant. In this case it is easy to see how relevant evidence might have been lost. Had the proceedings been brought in good time then evidence, both documentary and testimonial, could relevantly have been given by the MSB officials responsible for administering the residentials, and from Ms Parslow's solicitors, Mr Knaggs and Michie Shehadie. Further evidence on the subject could no doubt have been from Ms Parslow herself and from other members of the RPG, including but not limited to Ms Sutton.
7. No evidence was led for the Housing Corporation to demonstrate affirmatively that these sources of evidence were no longer available. That would not have been difficult to do; indeed, it might even have been the subject of a notice to admit facts. Of course in some situations the lapse of time might be so great that the prejudice can be inferred. This could be a case of that type. But in the end I do not need to determine whether it is. There are other factors at work.
8. In my view, there is conduct by Ms Parslow which amounts to acquiescence in the relevant sense. In the first place Ms Parslow withdrew the caveat to the extent necessary to allow the registration of the Housing Commission's twenty year lease. She also entered into the 1989 lease and then the 2010 lease. The terms of those leases were inconsistent with the terms of the lifetime residential entitlement which Ms Parslow now claims. But Ms Parslow's conduct goes further. Ms Parslow and her solicitors on her behalf negotiated, and re-negotiated, with the Department on the footing that the 1989 lease governed the relationship (see [80]-[84] above). The Housing Commission and the Department undertook, often at Ms Parslow's express request, repair and refurbishment work on the property. Ms Parslow also negotiated a public housing lease in 2010. All of this happened without Ms Parslow ever asserting the lifetime interest now claimed. In my view Ms Parslow's conduct from 1989 onwards was a form of acquiescence which would make it inequitable to grant her the relief which she now claims.
9. In my opinion the defence of laches has been made out. It is therefore unnecessary to consider the application of the statutory bars in the Limitation Act. It is also unnecessary to consider whether Ms Parslow's conduct gave rise separately to a defence of election or otherwise of "waiver" (I use inverted commas because of the notorious lack of precision of that term).

Indefeasibility

1. Ms Parslow's Statement of Claim pleads that the Housing Commission "as successor in title" was on notice of the "common assumption of fact" which had allegedly arisen between Ms Parslow and the MSB. That cannot be correct. Both the MSB and the Housing Commission were (and are) statutory authorities of the NSW Government. But the knowledge of one is not, merely because of that fact, knowledge of the other.
2. The Statement of Claim does also rely on the letter from the Minister for Housing dated 1 March 1984 which stated that residents were "guaranteed" a right of residence following the takeover by the Housing Commission. Such a statement could of course be relied upon as a representation by the Housing Commission which could give rise, on ordinary principles, to an estoppel based on subsequent conduct. But the question for present purposes is whether the Housing Corporation is bound by an estoppel based on prior reliance by Ms Parslow on representations by the MSB.
3. Counsel for Ms Parslow did not submit that the letter amounted to an undertaking to protect Ms Parslow's interests (as, for example, in Bahr v Nicolay (No 2) [1987] HCA 32; (1987) 163 CLR 490). I do not think it did. To the extent that any head lessees were in residence, the letter referred to them. But it was not an undertaking to head lessees in that capacity. To the extent that it referred to continued residency by a head lessee, it was limited to the particular area occupied by the head lessee. It could not reasonably be seen as some sort of promise to protect head lessees' existing interests.
4. The argument of counsel for Ms Parslow was that it would be unconscionable for the Housing Corporation, as successor in title of the MSB, to depart from an estoppel established as a result of dealings between the MSB and Ms Parslow. This was said to give rise to a personal equity against the Housing Corporation which was not affected by s 42. Counsel relied on a passage of the judgment of Neuberger J (as his Lordship then was) in PW & Co v Milton Gate Investments Ltd [2004] Ch 142 at [187]-[201]. In that case the sub-tenants alleged an estoppel by convention as against the head tenant of a property based on dealings between the head tenant and the landlord under the head lease. His Lordship found that the convention was established and that the estoppel arising from it would ordinarily operate as between the head tenant and the sub-tenants as well as between the landlord and the head tenant, but he dismissed the claim on the basis that there was no unconscionability in resiling from the convention.
5. His Lordship reviewed a number of authorities and stated (at 196): The general thrust of the authorities to which I have referred tends to support the proposition that, once an estoppel (perhaps other than an estoppel by representation) is established as between a landlord and a tenant, then it would normally bind their respective successors in title.
6. PW & Co was a case of estoppel by convention which is a type of estoppel which is developed from the rule that the parties to a deed are estopped from denying matters set out in the recitals to the deed: Handley at [8-002]. It was also a case as between sub-tenant and head tenant, where there is an established rule that the holder of a subordinate estate is estopped from denying the title of the holder of the estate from which the subordinate estate derives. Whatever rules may apply to assignees or sub-tenants with respect to an estoppel by convention, would not, in my opinion, necessarily apply to an estoppel by representation or an equitable estoppel. In any event, to allow an equitable estoppel based on the conduct by the MSB to be enforced against the Housing Corporation merely on the footing that it is a successor in title would unacceptably undermine the principle of indefeasibility: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [193] to [198].
7. For these reasons I conclude that the Housing Corporation's title is indefeasible except to the extent that an estoppel by conduct arises from the Housing Commission's own actions between March 1984 and March 1985.

Estoppel claim

1. There are a number of elements which Ms Parslow must establish to sustain her claimed estoppel. For present purposes there are three significant ones. First, Ms Parslow must establish conduct after March 1984 by the Housing Commission (or, if I am wrong on indefeasibility, by the MSB prior to that date), amounting to a representation that she would be permitted to stay in the premises for her lifetime on the terms that she now asserts. Second, Ms Parslow must show that she relied on that representation in undertaking the works she undertook on the property. Third, Ms Parslow must establish that those works involved detriment in the relevant sense.

Promise of life tenancy

1. I do not think the Minister's letter of 1 March 1984 amounted to a representation that Ms Parslow would be entitled to a lifetime tenancy of the property on the terms alleged. For reasons given at [178], I consider that the letter did not address Ms Parslow's position as the holder of a residential tenancy at all. In fact the surrounding circumstances showed that the Commission was proposing to do away with the previous tenure arrangements and that, if Ms Parslow was to continue to operate the boarding house, it would be under a management contract only.
2. The letter also did not guarantee any permanency even to the existing residents. It did not say that residents were entitled to remain in the premises in which they were living but only that they were entitled to remain in Millers Point. More importantly, the letter was written in the context of an existing system of residentials administered by the MSB. What the letter was saying was that that system would continue, so far as the residents were concerned, unchanged. Residents had at most a weekly tenure under those arrangements. All that the letter was saying was that the weekly tenure would continue, in accordance with the rules which applied generally to public housing tenants. The letter could not reasonably be interpreted as a statement that residents would be entitled to indefinite tenure with rent and other conditions unchanged. Still less could it have reasonably been understood as a promise of tenure even after the property in question ceased to operate as a boarding house.
3. I therefore do not accept that there was any relevant promise of tenure by the Housing Commission to Ms Parslow. But in case I am wrong on indefeasibility I will consider whether any such promise was made by the MSB.
4. The evidence referred to in the Ombudsman's chronology does suggest that the MSB adopted the policy of allowing the weekly tenancies issued to the head tenancy of residentials to roll over virtually indefinitely, and of permitting the surrender and re-grant of such tenancies in the knowledge that money was changing hands. Such an approach is confirmed by Ms Sutton's evidence about the grant of the residential tenancy over the Argyle Place residential to her in July 1978.
5. Such conduct by the MSB would be capable of being seen as a representation which could give rise to some form of proprietary or promissory estoppel. It should be noted, however, that any such representation would not be sufficient to found an estoppel of the breadth for which Ms Parslow contends. The MSB's conduct related to the grant of a tenancy to the person applying for it. At most it could be understood as an undertaking not to terminate the applicant's tenancy except under certain conditions, although whether it could reasonably have been understood in a particular case as such an undertaking, and, if so, what the relevant conditions were, would have depended on the context of the MSB's dealings with the particular applicant. It is not necessary to pursue this further. The evidence in the Ombudsman's chronology (see [33]-[37] above) shows that from 1980 the MSB, as one might expect, followed the direction imposed by the Minister and the policy ceased. The only tenancies granted after that date (including Ms Parslow's) were where money did not change hands and on the basis of a warning that the tenancy might be terminated on short notice. The acknowledgements by Mr Wright recorded in the Ombudsman's report do not overcome this evidence.
6. It is true that Ms Parslow appears to have commenced renovation work on the premises as early as 1977. But this can only have been on the basis of arrangements she made with Mr Ball, not the MSB. Ms Parslow could not reasonably have assumed that Mr Ball was in a position to make commitments on behalf of the MSB and Ms Parslow did not say that he purported to make any purported commitment.
7. I acknowledge that Ms Parslow claimed that she told (unidentified) MSB officials that she was doing work on the property and they raised no objection (see [111] above). Given the deficiencies in Ms Parslow's evidence I am not satisfied this actually happened, but even if it did it could not reasonably be understood as some sort of promise of an interest in favour of Ms Parslow who at that stage was only a sub-tenant of Mr Ball. It cannot reasonably have been understood that Ms Parslow would have any rights as a head tenant until and unless Mr Ball's tenancy was formally surrendered and a fresh tenancy granted to her.
8. The evidence shows (see [37] above) that when the MSB granted a tenancy to Ms Parslow in November 1981, it sent a letter to Mr Knaggs warning that the tenancy might be terminated at short notice. For the purposes of defeating the alleged estoppel, it would be sufficient that the letter was received by Mr Knaggs, who was acting for Ms Parslow at the time. Failure by Mr Knaggs to pass the warning on would not affect the MSB. In any event, all Ms Parslow said was that she could not recall receiving the warning. Given the lapse of time and the deficiencies in Ms Parslow's evidence, I am not satisfied that she was unaware of the warning at the time.
9. For these reasons, when the administration of the property was transferred to the Housing Commission in March 1984, I am not satisfied that there was any conduct by the MSB which could give rise to an estoppel in the terms claimed by Ms Parslow.
10. I have not overlooked the fact that, according to the Ombudsman's chronology, in September 1983 the Minister for Ports (who was the Minister responsible for the MSB) told another residential tenancy holder that her continued occupancy, together with that of her existing sub-tenancies, was "guaranteed" (see [50] above). But there is no evidence of any equivalent statement to Ms Parslow. In any event I think that such a statement by the Minister for Ports goes no further than the statement by the Minister for Housing in his letter of 1 March 1984 to which I have already referred, and which I consider does not reasonably support the estoppel claimed.

Reliance

1. Nor am I satisfied that in carrying out any work on the house Ms Parslow was relying on representations made to her by the Housing Commission (including, for this purpose, the Minister for Housing). Ms Parslow did not expressly make that claim in her evidence. At the time, she was in open and vigorous conflict with the Minister. There is no reason to think she would have placed any weight on his public statements.
2. However, in case I am wrong about indefeasibility, I will consider Ms Parslow's reliance on the conduct of the MSB. I have already referred to Ms Parslow's evidence that she believed, based on her dealings with the MSB, that she would be entitled to stay in the premises indefinitely and to the deficiencies which I see in that evidence. I am not satisfied that Ms Parslow had any such subjective belief. I think it is unlikely that she was unaware of the MSB's 1980 change of policy at the time. It was a significant change which I expect would quickly have come to the notice of residential tenancy holders. Indeed, the whole focus of the initial lobbying efforts of the RPG was to prevent the property being taken away from the MSB, no doubt in the hope of persuading the MSB to revert to its previous policy. But it is not necessary to make any affirmative findings about this. It is sufficient to say that Ms Parslow has not persuaded me that she was unaware of the change. Ms Parslow may have hoped that the change would be reversed, or thought that it should be reversed, but I am not satisfied that, whatever she may have known or thought about existing residential tenancy holders who had been granted tenancies in the past, she believed that any promise of tenure had been made to her.

Detriment

1. The question is whether the repair and renovation work undertaken by Ms Parslow amounted to detriment in the legal sense. That must be evaluated at the time the alleged estoppel would take effect and must take account of amortisation or depreciation of the relevant works in the meantime: Milling v Hardie [2014] NSWCA 163 at [55]. In this case, as has been seen, there is no evidence that the works in question have contributed in any significant way to the value of the property as it now is. In a house worth between $2.5 million and $3.5 million there is no reason to think that they do.
2. Furthermore, any detriment to Ms Parslow must take account of the fact that she had the use of the house at a discount from market value for a long period of time. The out-of-pocket cost of the works in present dollar terms, adding GST, was only $37,000. Spread over ten years this is about $3,700 per year. As a comparison, the initial rent under the 1989 lease was $115 per week and in October 1998 Ms Parslow was paying on average only $40 per week (see [93] above). The differential of $75 per week equates, using the Australian Bureau of Statistics CPI figures for Sydney, to $8,000 per year in today's dollars. This calculation takes no account of any tax benefit Ms Parslow may have received from deductions attributable to the maintenance expenditure on the property against her other income. It also takes no account of the fact that the rent under the 1989 lease would probably also have been higher, and the differential greater, in 1998 and later years.
3. For the purposes of this comparison, I do not think it is appropriate to take into account any labour component for the work done by Ms Parslow. She was not asked by the MSB or by the Housing Commission to do the work. She appears to have done it in her own time. It was not suggested that, had she not done the work, she would have undertaken paid work elsewhere. In any event, including Mr Sanig's figure for Ms Parslow's labour only results in a cost of about $8,600 per annum in today's dollars (including GST), which is not much more than the $8,000 figure for the differential I have derived above.
4. It must be borne in mind that Ms Parslow has had the benefit of a rental concession at least since the 1989 lease commenced on 1 October 1989, a period of more than 27 years. There is a suggestion in the evidence that the rent charged under the MSB lease was below market as well. By comparison, if I am correct about indefeasibility the relevant cost of renovation works is restricted to a single year, March 1994 to March 1995. Even if costs for the whole period of Ms Parslow's occupation from 1976 to March 1985 is taken into account, it still covers a period of less than ten years.
5. I am not satisfied that Ms Parslow has been left in any worse financial position as a result of having lived in the house and undertaken renovation work than she would have otherwise have been in.
6. It is also relevant that the Housing Corporation is not proposing to evict Ms Parslow from public housing, but only to move her to separate accommodation. Ms Parslow asserted that this accommodation was unsuitable to her, but I do not accept this. I do not believe that Ms Parslow has ever seriously considered moving. If she is compelled to move she will be deprived of her wish to continue to live in the Lower Fort Street house, but there is no evidence that she will suffer any concrete prejudice.

Conclusion

1. In my view, none of the three elements which I have discussed is made out. Failure to make out each of them is an independent reason why Ms Parslow's claim must fail.

Stay of possession order

1. The Residential Tenancies Act 2010, s 154G, provides: (1) If an order is made for termination of a social housing tenancy agreement, the order for possession must not specify a day that the order for possession is to take effect that is later than 28 days after the day on which the termination order is made unless the Tribunal is satisfied that there are exceptional circumstances justifying a later day. (2) The order for possession cannot be suspended for a period that would result in it taking effect later than 28 days after the day on which the termination order was made unless the Tribunal is satisfied that there are exceptional circumstances justifying a longer period of suspension.
2. Counsel for Ms Parslow asked, having regard to her forty year occupation of the property, for six months to vacate. Counsel accepted that this could not be granted unless "exceptional circumstances" could be established.
3. No doubt Ms Parslow will find it hard emotionally to move after forty years. But there is no evidence that there is any physical difficulty with moving within twenty-eight days.
4. The fact is that Ms Parslow has treated the property as her own for a very long time without any right (as I have now found) to do so. In the end, there was no dispute before me that the Corporation was within its rights under the 2010 lease to require Ms Parslow to move from 2014 onwards. Her intransigence resulted in a three year delay before the Department was forced to commence the possession proceedings, and the possession claim has now been delayed for a period of more than a year as a result of the bringing of the equity proceedings.
5. The fact that Ms Parslow has remained in possession of a publicly owned property for more than four years against the wishes of the Department is (one hopes) unusual, but in my opinion, it is not an exceptional circumstance which would cause the Court to exercise its discretion to postpone her eviction beyond the twenty-eight days provided for by statute.

Conclusion and orders

1. For these reasons, I have concluded that: 1. Ms Parslow's only available claim to a lifetime tenancy of the Lower Fort Street property is one based on equitable estoppel; 2. the claim is barred by laches; 3. to the extent that the claim is based on the conduct of the MSB up to March 1984, it is also barred by the Housing Corporation's indefeasible title pursuant to the Real Property Act 1900, s 42; 4. in any event, the claim, for both the periods before and after March 1984, fails on the facts.
2. For these reasons the equity proceedings brought by Ms Parslow fail and the Housing Corporation's possession proceedings succeed. There is no good reason to extend the statutory period within which Ms Parslow must vacate beyond twenty-eight days.
3. I see no reason why costs should not follow the event. On the face of it Ms Parslow should pay the costs of both proceedings on the ordinary basis. I will grant liberty to apply to the parties in case some different order is sought.
4. The orders of the Court in the Equity Division proceedings (2017/112924) are:
5. Judgment for the defendant.
6. Order that the plaintiff pay the defendant's costs on the ordinary basis.
7. The orders of the Court in the possession proceedings (2018/123505) are:
8. Order that the defendant's tenancy at [XX] Lower Fort Street, Dawes Point be terminated.
9. Order that the defendant provide vacant possession of [XX] Lower Fort Street, Dawes Point by 5 July 2018.
10. Order that the defendant pay the plaintiff's costs on the ordinary basis.

Amendments 27 June 2018 - typographical changes 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: 27 June 2018