Peter Geoffrey Edmonds by his tutor Jason Dean Edmonds v Simms

Hearing dates: 08 October 2025

Date of orders: 08 October 2025

Decision date: 08 October 2025

Jurisdiction: Common Law

Before: Elkaim AJ

Decision: 1. Judgment for the plaintiff for possession of the land known as XXX, Raymond Terrace in the State of New South Wales and comprised in Folio Identifier XXXX.
2. The cross-claim is dismissed.
3. The defendant is to pay the plaintiff’s costs of the proceedings.

Catchwords: LAND LAW — possession of land — application by plaintiff as registered proprietor — where plaintiff has prima facie right to possession as registered proprietor — where defendant asserts de facto relationship with plaintiff as a defence — no evidence filed by the defendant

Cases Cited: Brylewski v Maclean [2022] NSWSC 1654
Holder v Zeiher [2014] NSWSC 556

Category: Principal judgment

Parties: Peter Geoffrey Edmonds by his tutor Jason Dean Edmonds (Plaintiff)
Brenda Mary Simms (Defendant)

Representation: Counsel:
T Boyle (Plaintiff)
B Holland (Simms)(self-represented Defendant)
Solicitors:
Carroll & O'Dea Lawyers (Plaintiff)

File Number(s): 2024/17456

Publication restriction: No

JUDGMENT

Introduction

1. The plaintiff lives in an aged care home in the Hunter region. He is also the registered owner of a residential property in Raymond Terrace (the property). The defendant lives at the property. The plaintiff wants possession of the property so that it can be sold and in turn fund his ongoing residential and medical needs.

2. The plaintiff has dementia to the extent that his son, Mr Jason Edmonds, acts as his tutor under a power of attorney executed in 2012. I will generally refer to the tutor as Jason to avoid confusion with his father.

Procedural background

3. In order to obtain possession, the plaintiff, through his tutor, filed a statement of claim on 15 January 2024 seeking a possession order.

4. The defendant filed a defence on 28 February 2024 and then a cross-claim on 14 March 2025. A defence to the cross-claim was filed on 29 April 2025.

5. Two affidavits have been filed on behalf of the plaintiff. There is an affidavit of the tutor, Mr Jason Edmonds dated 30 October 2024, and an affidavit of Ms Debbie Young also dated 30 October 2024. Both affidavits have exhibits attached to them (JDE 1 and DY 1 respectively). Ms Young is the plaintiff’s daughter.

6. No evidence has been filed on behalf of the defendant.

7. The matter was case managed by Lonergan J. The court file indicates the following orders and directions have been made:

8. On 15 May 2024 Lonergan J listed the matter for mediation which occurred on 26 July 2024. It was unsuccessful.

9. On 6 August 2024 consent orders were made noting that the defendant was to bring any application in respect of the property in the Federal Circuit and Family Court of Australia by 23 August 2024.

10. On 28 August 2024, the matter was back for directions before Lonergan J. Her Honour stood the matter over to 4 September 2024 with a direction that the defendant’s solicitor was required to appear in person and explain the position in respect of the Federal Circuit and Family Court application. It appears no such application has ever been filed.

11. On 4 September 2024, Lonergan J ordered the plaintiff to file and serve all affidavit material on which he relied by 25 September 2024. The defendant was to respond by 23 October 2024. The court noted that the order sought in the defence that the matter be transferred to the Federal Circuit and Family Court was no longer pressed.

12. On 7 November 2024, the plaintiff’s time limit was extended to 30 October 2024 to allow for the affidavit material which had been filed on that date. The defendant was then given until 6 December 2024 to respond.

13. On 11 December 2024, the timetable was extended by Lonergan J to allow the defendant until 18 December 2024 to file her material. In addition, any cross-claim by the defendant was to be served on the plaintiff’s solicitor by 18 December 2024.

14. On 25 February 2025, Lonergan J ordered the defendant to file and serve her evidence by 14 March 2025. An additional order was made that any material filed after 14 March 2025 “cannot be relied upon without leave of the Court”. The matter was listed for directions before her Honour on 25 March 2025 “at which time it is expected that Ms Smith, solicitor, will either physically appear before the Court or attend Court with counsel briefed regarding the full parameters of the matter”.

15. On 25 March 2025, the defendant was given leave to rely on the cross-claim that had been filed on 14 March 2025. In addition, the defendant was directed to file and serve her evidence in support of her defence and the cross-claim by 29 April 2025 “and is not permitted to file any evidence after that date without leave of the Court”. Lonergan J also directed the parties to return to court on 11 June 2025, armed with potential hearing dates and a hearing estimate. 11 June 2025 was vacated, and the parties returned to Court on 20 June 2025.

16. On 20 June 2025, the matter was listed for hearing on 7 October 2025 with the usual order for a hearing in accordance with Annexure A to Practice Note SC CL 1.

17. On 3 October 2025, the matter was listed before me at the request of the defendant’s solicitor, Ms Smith. No evidence had been filed on behalf of the defendant up to this date.

18. Ms Smith requested leave to withdraw her representation of the defendant, and an adjournment, because she said that she had discovered a conflict of interest which prevented her from continuing to act for the defendant. Ms Smith said she discovered the conflict of interest on 22 September 2025. The date is important because it is after the dates on which evidence should have been filed. In other words, the discovery of the conflict of interest is irrelevant to the evidence not having been filed.

19. Ms Smith told the court that another solicitor, located in the Central Coast, had agreed to take over the conduct of the matter. The other solicitor was Mr Mereniuk of Peninsula Law. I allowed Ms Smith to withdraw on the basis that Ms Smith told me Mr Mereniuk was “in a position to take over”.

20. The hearing was due to commence on 7 October 2025, with an estimate of three days. Counsel for the plaintiff told me that if there was no evidence on behalf of the defendant the estimate would be significantly shorter. Accordingly, in order to give the defendant’s new solicitor a little more time, I ordered that the matter commence on 8 October 2025.

21. After the hearing of the motion my Associate contacted Mr Mereniuk, asking him to file a notice of appearance. Mr Mereniuk responded at 1.25pm on 3 October 2025:

“We advise that as at today’s date, Peninsula Law has not been retained to act on behalf of the defendant.

If the matter is to proceed to hearing on the dates listed, we advise that the writer is not available and the defendant will need to seek alternate representation.

The writer will advise Miss Smith of the above.”

13. Assuming that Mr Mereniuk did advise Ms Smith of his unavailability, Ms Smith, despite the condition on which I allowed her to withdraw, has taken no further action on behalf of the defendant. Ms Smith had also indicated that a barrister had been briefed. My Associate emailed the parties, including the barrister, on 7 October 2025 to inform them of the details of the hearing. The barrister responded that he was not briefed to appear.

14. This left the defendant in a very unsatisfactory position having no representation in a case which could see her evicted from the property.

15. When the matter came on for hearing the defendant appeared and asked for an adjournment in order to obtain legal representation. She said she had been told to do so by Ms Smith. She also said that she had never spoken to Mr Mereniuk.

16. The difficulty facing the defendant however is not just the recent events concerning Ms Smith whose recent conduct may be somewhat questionable. However I have not heard from Ms Smith and therefore will not reach any conclusions about her conduct.

17. More important are the lapses in filing of any evidence despite the benign orders of Lonergan J. If the problems facing the defendant had only arisen in the last few days, I would have been much more sympathetic to her application for an adjournment. But the whole history of the case run on behalf of the defendant is one in which there have been persistent failures. I also note, as will be described below that even before proceedings were commenced the defendant ignored the plaintiff’s solicitors attempts to engage with her.

18. The plaintiff has been waiting for his case for some time. The case has been in the system since January 2024, and other than a week’s delay in filing affidavits in support of the claim, the plaintiff has otherwise complied with all orders of the court. The plaintiff requires funds from the sale of the property to enable him to pay his residential and medical bills.

19. In addition, again as will be seen below, even taking the defence at its highest there would be little scope for the defendant to have successfully opposed possession on the basis of her being in a de facto relationship with the plaintiff.

20. For the reasons above I refused the adjournment. I did ask the defendant if she wished to read the plaintiff’s affidavits. She said she had previously seen them and did not wish to read them again. She did not wish to ask the deponents any questions and made no submission other than that she had been in a de facto relationship with the plaintiff for a very long time.

The claim for possession

21. There is no dispute that the plaintiff is the registered proprietor of the property.

22. Based on the defence and cross-claim the defendant’s position seems to be that she and the plaintiff commenced living together in 1993. They shared expenses relating to the property including mortgage repayments. They also both made non-financial contributions in maintaining the property. The intention was said to be that the “cross-claimant would be entitled to obtain an interest in the property.”

23. On 27 October 1995, the plaintiff and the defendant purchased, as tenants in common in equal shares, a property in Raymond Terrace (the ‘T Street’ property).

24. The T Street property was sold in November 2006, with the net proceeds of sale going in equal shares to each of the plaintiff and the defendant. The defendant asserts that she applied her share “in furtherance of the joint endeavour”. The joint endeavour, commencing in 1993, is said in the cross-claim to include the following purposes:

“a. To secure accommodation for themselves; and

b. the discharge [of] Peter’s obligations under the Mortgage.”

25. The mortgage over the property was discharged on 13 March 2003.

26. Because of the joint endeavour, the defendant asserts that:

27. It would be unconscionable for the plaintiff to deny that the defendant has a beneficial interest in the property.

28. The plaintiff holds his interest in the property subject to a constructive trust in favour of the defendant as to a one-half share.

29. The defendant is entitled to an order for equitable compensation.

30. In the defence to the cross-claim the plaintiff denies the existence of the joint endeavour. He says that the defendant has had the benefit of occupation of the property but otherwise has no entitlement to be there.

31. The evidence filed by the plaintiff is to the following effect, firstly from Mr Jason Edmonds:

32. The plaintiff was born in 1943. He had four children, Jason, Kim, Debbie, and Darren. They were all born well before 1993.

33. The property was purchased by the plaintiff in November 1987 for $47,000. A loan, secured by a mortgage, was required to make the purchase.

34. A discharge of the mortgage was registered on 17 March 2003.

35. The plaintiff and the defendant started living together in the property in about 1993. They never married.

36. In about 2008, after suffering episodes of forgetfulness, the plaintiff started to consult a geriatrician, Dr Walsh. In 2012 Dr Walsh advised the plaintiff to put in place a power of attorney and a will “while he still had capacity to make his own decisions…”

37. On 25 July 2012, the plaintiff appointed Jason and Ms Young as his attorneys. On 11 January 2013, the plaintiff executed a will appointing Jason and Ms Young as his executors and trustees. Under the will the defendant is given $30,000 and the plaintiff’s motor vehicle, and there is this provision:

“I GIVE DEVISE AND BEQUEATH unto my partner BRENDA MARY SIMS a right to reside in my house at [the property] for a period of two years from the date of my death subject to her paying all outgoings including but not limited to house insurance, council rates, water rates and household maintenance. Evidence of payment shall be provided to my Executors. Should she fail to pay for these outgoings then my Executors may take possession upon giving sixty days’ notice in writing to vacate.”

7. On 15 March 2018 Dr Walsh gave a letter to the plaintiff’s solicitor confirming a diagnosis of “Moderate Dementia”. The letter stated that “any existing Power of Attorney or Guardianship paper could realistically be enacted on the basis of this loss of capacity”.

8. In September 2018 the plaintiff moved into an aged care home, initially in Rutherford and then, in January 2023, he moved to his current aged care home in Raymond Terrace.

9. The relationship between the plaintiff and the defendant had ended by the time the plaintiff entered the aged care facility in September 2018. Jason recalls instances of the plaintiff referring to having been abandoned by the defendant from about 2015.

10. According to the records held at both aged care facilities, the defendant has not visited the plaintiff since 2019.

11. Since the plaintiff went into the aged care facility all his bills have been paid by Jason and Ms Young. This has included all land rates and insurances on the property.

12. Carroll & O’Dea, the plaintiff’s solicitors, wrote to the defendant on 27 February 2023, stating that the property needed to be vacated and sold to enable the plaintiff to pay the funds necessary for his residence in the aged care facility. There was no response to the letter.

13. A second letter was sent by Carroll & O’Dea on 2 June 2023, stating that instructions had been received to commence proceedings for possession if the defendant did not respond to the letter. The defendant did not respond.

14. On 19 December 2023, another letter was sent by the solicitors to the defendant asking her to vacate the property. Again, there was no response, and there was also no response to a further demand on 10 January 2024.

15. Based on the affidavit of Ms Young:

16. Ms Young does not think that the defendant has paid any monies towards the property “including paying rates, maintenance costs, and general outgoings”.

17. When Ms Young returned to the property with her father after the appointment with a solicitor to draft the power of attorney, the defendant confronted the plaintiff, slapped him with an open hand across his face and said, “I should have been your Power of Attorney”.

18. It is about 3 km from the property to the aged care facility in Raymond Terrace. This information is included to show the ease with which the defendant could have visited the plaintiff but apparently has not done so since 2019.

19. Since 2013, Ms Young kept a diary in order to record incidents which she felt indicated a strained relationship between the plaintiff and the defendant. The entries refer to the defendant leaving the plaintiff alone while she went out “drinking” and, on one occasion, a request that Ms Young phone the police because the plaintiff was being bashed into by the defendant. On a number of occasions there are entries relating to assertions of the defendant treating the plaintiff badly, not ensuring he was taking his medication or was leaving the plaintiff. Ms Young’s affidavit contains a summary of her diary entries, at [58].

20. In early 2018 Ms Young and Jason discovered that the defendant was taking the plaintiff to his bank on a daily basis, and withdrawals were being made from his account. Ms Young and Jason then exercised their powers of attorney to prevent “excessive withdrawals”.

Consideration

30. In the final analysis the plaintiff is the registered proprietor giving him a prima facie entitlement to possession (as described by Basten JA in Brylewski v Maclean [2022] NSWSC 1654 at [52]). Davies J stated, in Holder v Zeiher [2014] NSWSC 556, a case involving an allegation of a de facto relationship, at [42]-[43]:

“42 The Plaintiff establishes that he is the legal owner of the property and is entitled to possession of it. The Defendant's evidence is contradictory about whether there was a de facto relationship. The two significant matters suggesting that there was not such a relationship are the Defendant's joining in the assertion in the Family Court that there was no such relationship and her sworn testimony in that Court that there was no genuine relationship.

43 Whether or not there was such a relationship, there is no evidence at all that the property was bought for her solely nor evidence that she is entitled to possession of the property to the exclusion of the Plaintiff. Even if she is entitled to a share in the proceeds of the sale of the property as a result of amounts paid towards the mortgage (as her caveat suggests) or because a de facto relationship existed, that is not an entitlement to possession against the registered proprietor.”

31. The absence of evidence from the defendant means the prima facie entitlement referred to by Basten JA becomes certain. While the affidavits of Ms Young and Jason suggest the existence of a de facto relationship, perhaps for a number of years, that relationship arguably had ended before the plaintiff went into the aged care facility in 2018, and there is no evidence of contributions by the defendant to the property. The defendant obviously contemplated proceedings in the Federal Circuit and Family Court and was given the opportunity, by Lonergan J, to commence those proceedings, but did not. Lonergan J also gave the defendant more than ample opportunity to file evidence.

32. There is no basis upon which I could find any entitlement by the defendant to remain in the property.

33. As to the provisions in the will, they were made when a de facto relationship apparently existed and do not arise until the plaintiff’s death. Neither the defence nor the cross-claim make an assertion of any right arising from the terms of the will. The cross-claim was filed after the will was disclosed in Jason’s affidavit. In addition, whatever may be included in the will, it is an indication of an intention expressed in January 2013 and was always liable to change.

34. I am sympathetic towards the defendant both because she will need to vacate the property having lived there for many years and because she seems to have been left without legal representation through no fault of her own. I do not however see that I have any choice but to make the orders sought.

35. As to the cross-claim there is no evidence to support it and therefore it will be dismissed.

36. In respect of costs, again I do not think I have any option other than to award costs in favour of the plaintiff.

Orders

37. I make the following orders:

38. Judgment for the plaintiff for possession of the land known as XXX, Raymond Terrace in the State of New South Wales and comprised in Folio Identifier XXXX.

39. The cross-claim is dismissed.

40. The defendant is to pay the plaintiff’s costs of the proceedings.

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