HEARING DATES: 13 May, 17 November 2010, 9, 21 & 23 February 2011

Procedure - Supreme Court procedure - Tasmania - Practice under rules of court - Summary judgment - Leave to defend - No viable prospect of the claim being successfully defended demonstrated.

Supreme Court Rules 2000 (Tas), rr356, 357, 358 and 359.

Judgment Number: [2011] TASSC 8

DRAGA PORT by her lawful attorney TASMANIAN PERPETUAL

1 The plaintiff, who is the registered proprietor of a house at 6 Birngana Avenue Sandy Bay, has sued the defendant to recover from her possession of the premises. The plaintiff served a statement of claim and the defendant entered an appearance. The plaintiff has now applied for summary judgment.

3 The plaintiff is a widow in her late eighties residing in a nursing home. Her affairs are being administered by Tasmanian Perpetual Trustees Limited under an enduring power of attorney executed in 2003. In 2004 medical reports were received advising that the plaintiff suffered from dementia and was incapable of managing her affairs. Since that time her estate has been managed by Perpetual Trustees. The plaintiff has considerable assets and, as I have said, her real estate portfolio includes the residence at Sandy Bay.

4 In January 2005 the plaintiff's only son and his de facto spouse, who is the defendant, took rent free possession of the Sandy Bay residence. Perpetual Trustees consented to that arrangement.

5 In 2007 the couple separated and the plaintiff's son moved out of the house. Proceedings were commenced under the Relationships Act 2003 for a property settlement.

6 In October 2008 the couple agreed upon terms of settlement whereby the defendant was to remain in occupation of the residence rent free until 2017 when the couple's daughter would turn 21 years of age. It was part of the agreement that the defendant would be paid an initial sum of $75,000 and a further sum of $150,000 when the plaintiff's son received his expected inheritance following the death of his mother. The plaintiff's son and the defendant sought an order in terms of the agreement. An order giving the defendant possession of the house was not made as the Court had no authority under the Relationships Act to deal with the plaintiff's assets.

7 Perpetual Trustees, as the plaintiff's attorney, was asked to consent to the orders or otherwise enter into an agreement giving to the defendant the right to occupy the house until 15 January 2017. Perpetual Trustees sought the advice of the Guardianship and Administration Board under the Powers of Attorney Act 2000, s33(2)(g). On 19 February 2009 the Board advised that Perpetual Trustees could make for itself any decisions regarding the defendant's tenancy. Perpetual Trustees decided not to consent or submit to the proposed orders and not to enter into an agreement.

8 On 28 April 2009 consent orders were made finalising the rights of the plaintiff's son and the defendant for an adjustment of property interests under the Relationships Act. The orders made no reference to the Sandy Bay house.

9 On 4 February 2010 Perpetual Trustees issued a notice to the defendant's solicitors requiring the defendant to give vacant possession of the property by 12 February. Possession was not given and Perpetual Trustees, in the name of the plaintiff, issued a writ for the recovery of possession. The writ issued on 16 February 2010. The plaintiff seeks an order giving to her summary judgment.

10 The disposition of the application has had an unfortunate and tortured history. The original statement of claim wrongly contained an allegation that the defendant had entered the property without consent. The affidavit in support of the application contained no verification of that allegation. The result was that the hearing of the application which commenced on 13 May was adjourned so that the plaintiff might amend the statement of claim. The statement of claim was amended a few days later to substitute an allegation that the defendant had taken possession of the property as a tenant at will. It was not until October that a new supporting affidavit was filed. The hearing resumed in November, but the plaintiff's counsel decided after a short time that a further affidavit was required. The third affidavit in support of the application was filed and in December the plaintiff's solicitor issued a request for the application to be re-listed. The hearing resumed in early February whereupon the deponent of the plaintiff's affidavits was cross-examined at length. The cross-examination was not completed within the course of the day and so the hearing was adjourned for a further two weeks when court time would be available. When the cross-examination was completed the application was further adjourned so that counsel could review the transcript before presenting their submissions.

11 The submissions were heard today. Having listened to counsel for the defendant I considered that no matter had been raised which required careful analysis or reflective consideration and so I did not call upon counsel for the plaintiff to respond.

12 The operation of the rules as to summary judgment for the plaintiff is clear. If a statement of claim which discloses a cause of action has been served and the supporting affidavit verifies the allegations of fact which constitute the cause of action and contains a statement that the deponent believes that there is no defence to the claim, or the part of the claim the subject of the application, then the application is not liable to be dismissed. It is for the defendant to satisfy the Court that there is an issue to be tried or that there ought to be a trial for some other reason. If the defendant discharges the onus the Court will grant leave to defend. Leave to defend should only be withheld where there is no doubt that the plaintiff is entitled to judgment. See Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at par24.

13 There was no dispute that the amended statement of claim had been delivered and disclosed a cause of action. Counsel for the defendant submitted, however, that the supporting affidavits did not verify the allegation that the defendant was a tenant at will and that the deponent's statement of his belief that there was no defence should be rejected. There was a further submission that, in the event that these submissions failed, the defendant should be granted leave to defend.

14 The supporting affidavits verify that the defendant had occupied the house with the consent of the plaintiff given through her attorney Perpetual Trustees and that throughout the period of her occupancy she has not paid rent, rates or water charges. This position was allowed to continue until the demand for possession issued. In the text Australian Property Law by Sackville & Neave, 8th ed at 3.19, it is stated that a tenancy at will may be created where the holder of a fee simple estate allows another person to take exclusive possession of the land without any agreement as to the duration of the occupancy or any payment of rent. Counsel for the defendant considered this proposition and said that he did not dispute its accuracy. Here it has been verified by the supporting affidavits that there has been rent free occupancy for many years with the acquiescence of the attorney for the plaintiff. I can think of no reason why this is not a sufficient verification of the allegation that the defendant occupied the house as a tenant at will. Counsel did not advance his argument. There was no suggestion that any other allegation remained without verification. I find that the cause of action disclosed in the amended statement of claim has been verified by the supporting affidavits.

15 The submission that the deponent's statement contained in each of the supporting affidavits of a belief that there is no defence to the claim should be rejected is based on an answer given in cross-examination. I refer to the transcript at p93 where the deponent said: "I guess she can argue but I don't believe that there's the argument that she should be in the property". However, when the whole of the evidence on the subject given by the deponent in cross-examination is considered it is clear that he held the relevant belief. Further on at p93 the deponent said that he did not believe that the defendant had an argument. At p133, when questioned about his belief after he had seen the defendant's affidavit, which asserted that she had a right to stay in the house until 2017, the deponent reaffirmed that his belief was that the defendant's affidavit disclosed no defence. The affidavits contain the required statement of a belief that there is no defence. A defendant who challenges that statement must show that it should be rejected. No basis for rejection has been demonstrated.

16 There has been compliance with the rules governing the bringing of an application for summary judgment by the plaintiff and no ground for dismissing the application exists.

17 In support of the application for leave to defend counsel submitted that the notice determining the tenancy did not comply with the requirements of residential tenancy legislation. When questioned, counsel said that the legislation applied to rights of occupancy of residential premises granted for value. When asked where the evidence was that the asserted right of occupancy was for value counsel confined his submissions to a reference to par6 of the defendant's affidavit which is as follows:

"Our residence in the property and the Macquarie Street property was against the backdrop of in the sixteen years that Tony and I were together as a couple. Tony was the only child of Draga Port. Tony's father had died when he was nine years of age and Tony's belief was that he was to assist his mother in the management of her estate which consisted of a number of residential rental properties and a number of farms the [sic] he would inherit and that they would be our properties at that time. We sent [sic] our time together maintaining the houses and farms owned by Draga Port and did not accumulate and [sic] property in our own name as we assumed that on the death of Draga Port we would inherit the properties that she owned and we had helped maintain."

18 This evidence is consistent with the plaintiff's son and the defendant maintaining the residence to protect the inheritance which the plaintiff's son expected to receive. It does not disclose the existence of an agreement whereby occupancy was conditional upon the provision of household maintenance. I have not considered what the requirements of the residential tenancy legislation are for the termination of the residential tenancy. Counsel did not take me to them. Whatever they may be the defendant has failed to satisfy me that she has an argument that they apply. I will not give leave to defend on the basis that there is an arguable case that they have been breached.

19 Finally, it was submitted that there was evidence disclosing an arguable case that the defendant had been given a right of occupancy until 2017. Counsel on this point referred to the defendant's affidavit at pars14 to 17 which are as follows:

"14 Mr Clifford advised that TPTL was content with an order or an agreement that I reside in the property until 15 January 2017 being the day of Sarah's twenty first birthday as it was the intention of Draga Port to house her family which included her granddaughter Sarah. Notwithstanding TPTL's consent to the arrangement TPTL took the view that the Power of Attorney which had been granted to them did not give them the power to enter into an agreement for that to occur and TPTL would need an order of the Guardianship and Administration Board ('the Board') to clarify whether they had the power.

15 Given the advice of TPTL Tony, through his solicitor made an application to the Board seeking an order which would determine TPTL had the power to agree within the agreement reached in the Relationship Act proceedings. The nature of the application was to seek an order that TPTL had the power to permit Sarah and I to continue to reside in the property.

16 A hearing was held before the Board and I attended that hearing. Annexed here and marked 'C' is a copy of the order made by the Board advising that TPTL had the power to approve Sarah and I residing in the property until 15 January 2017.

17 At the hearing before the Board Mr Clifford on behalf of TPTL agreed that Draga Port had historically expressed an intention to house her family in the property and that we had lived in the Macquarie Street property with consent of Draga Port but Tony, Sarah and I moved into the property because the Macquarie Street property which we were occupying was deemed a danger due to electrical faults and that TPTL was content to continue this agreement. TPTL would like the matter settled for the benefit of the parties and that TPTL did not oppose what was being requested by the parties. At the hearing Mr Clifford primarily expressed the view that Senior Management of TPTL had determined that they did not have the power to grant what was requested by the parties and that they were seeking the Board to clarify or settle what was being asked but did not oppose what was being requested."

20 This evidence does not disclose an arguable case that the defendant has a right of occupancy until 2017. Although it may be true that Mr Clifford, acting on behalf of Perpetual Trustees, gave advice that Perpetual Trustees was content to submit to an order or enter into an agreement to the effect that the defendant would occupy the house until 2017, there is no evidence that Perpetual Trustees did either of these things. Absent an order or an agreement the claimed right to occupy until 2017 is not sustainable.

21 These were the sole grounds upon which leave to defend was sought. Neither have been made out. Leave to defend is refused.

22 Summary judgment is given for the plaintiff against the defendant for possession of the house and land owned by the plaintiff situate at 6 Birngana Avenue, Sandy Bay in Tasmania more particularly described in folio of the register volume 71825 folio 3 with costs except for the costs thrown away as a result of the adjournments of the summary judgment application on 13 May 2010 and 17 November 2010.