Togias v State of New South Wales

Forfeiture and Occupation of Properties in the Name of Mr Subakti - 2010 to 2023

1. This judgment should be read with Sackar J's judgment and the Court of Appeal's judgment. The Court sets out here the essential facts relevant to the issues for determination.
2. Mr Subakti and Ms Togias were in a de facto relationship between 1998 and January 2010. The Glenwood property and the Seven Hills property were acquired in Mr Subakti's name during the relationship. The Glenwood property was purchased in 2003 and the Seven Hills property in 2008. But on 29 January 2010, Ms Togias ended the relationship when she became aware of Mr Subakti's arrest on drug-related charges. Mr Subakti was subsequently convicted of the charges and sentenced to a period of imprisonment.
3. On 5 May 2014, on the application of the NSW Crime Commission, this Court in its Common Law Division made a forfeiture order, pursuant to the Criminal Assets Recovery Act 1990 ("CAR Act"), in relation to Mr Subakti's interest in property, including both the Glenwood property and the Seven Hills property. Although both properties came under the control of the NSWTAG because of the forfeiture order, Mr Subakti remained the registered proprietor of each property until December 2022 when they were transferred to the NSWTAG. In the proceedings before Sackar J, Ms Togias contended that the forfeiture order did not cover her beneficial interest in the two properties.
4. Sackar J concluded that a remedial constructive trust arose by reason of the indirect contributions that Ms Togias had made, through homemaking and domestic duties as well as work that she undertook in Mr Subakti's business. On appeal NSWTAG contended that the primary judge had made several errors. NSWTAG's primary contention was that Sackar J had erred in finding that the respondent had established a joint relationship and endeavour to which she had contributed, to give rise to a remedial constructive trust of the type described by the High Court in Baumgartner v Baumgartner (1987) 164 CLR 137; (1987) 76 ALR 75; (1987) 62 ALJR 29; [1987] HCA 59 ("Baumgartner").
5. The Court of Appeal did not consider that Sackar J had erred in concluding that there was a joint endeavour between Ms Togias and Mr Subakti of a nature that could give rise to a remedial constructive trust with respect to the Glenwood Property. But the Court of Appeal found that Sackar J had erred in concluding that the maxim "equity is equality" applied to confer on Ms Togias a beneficial interest in that property as to 50 per cent, concluding that it was 25%. The Court of Appeal also considered that Sackar J had erred in concluding that the Seven Hills Property was acquired as part of and for the purpose of a joint endeavour between Ms Togias and Mr Subakti, to give rise to a constructive trust with respect to that property.

The Possession Issue

1. The Parties' Submissions. The NSWTAG initially submitted on the February 2023 motion that it was entitled to possession of the Glenwood property on the basis that it was the registered proprietor of the property. But it emerged during submissions on 11 April 2023 that NSWTAG was not the registered proprietor of the Glenwood property as late as 16 December 2022. Mr Subakti was then still the registered proprietor. NSWTAG became the registered proprietor of the property on 31 January 2023. Ms Togias occupies the Glenwood property.
2. NSWTAG submitted that although it holds the Glenwood property as to a one quarter interest on trust for Ms Togias, that does not give her any right to possession of the property: DKLR Holding Co (No. 2) Pty Ltd v The Commissioner of Stamp Duties (1980) 1 NSWLR 510 per Hope JA at pages 519 - 520, with whom Glass JA agreed ("DKLR").
3. NSWTAG contended that Ms Togias was not paying any occupation fee for her use of the Glenwood property and that the mortgage to Perpetual was not being paid, so the equity of both NSWTAG and Ms Togias in the property was reducing. This issue was dealt with by the Court making interim orders requiring Ms Togias to make mortgage payments.
4. Ms Togias put the following submissions in reply. She submits that the NSWTAG holds the Glenwood property on bare trust as to a one quarter share for Ms Togias and as to a three-quarter share for NSWTAG. Ms Togias qualifies as a "co-owner" of the Glenwood property within the meaning of Conveyancing Act 1919, s 66(1), which provides that "[c]o-ownership means ownership whether at law or in equity in possession by two or more persons as joint tenants or as tenants in common; and co-owner has a corresponding meaning and includes an incumbrancer of the interest of a joint tenant or tenant in common". The orders of the Court of Appeal recognised that Ms Togias had not just a charge in her favour (order 3(b)) but also that she held a quarter interest in the property itself (order 3(a)).
5. She submits that as a co-owner she is entitled, under Conveyancing Act, s 66(1) to purchase the Glenwood property. She can resist the orders for possession that might negate or diminish that entitlement to purchase. She further submits that because the Glenwood property has been her home for 20 years, she should be given a real opportunity to acquire the property: Angius v Salier [2017] NSWSC 198 at [34]-[44]. And she says that Conveyancing Act, s 66(1) does not fetter the Court's discretion to do justice between the parties.
6. She further submits that the Court should be mindful to preserve her "real opportunity" to acquire the property. This brings with it a collateral consideration of preserving her possession of the property if that makes the exercise of that right real rather than theoretical.
7. Ms Togias submits that her present right to occupy the Glenwood property arises from two sources: (1) as an equitable co-owner with a right to call for the legal title to reflect her co-ownership; and (2) as a tenant at will.
8. As to (1), Ms Togias submits that because NSWTAG holds Ms Togias's interest in the Glenwood property as a bare trustee, NSWTAG must, at the demand of Ms Togias, transfer its legal ownership of that interest to her: Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 281 per Gummow J (as his Honour then was). Ms Togias's right in equity to call for the conveyance of the legal interest in the Glenwood property (in the exercise of her Saunders v Vautier [1841] EWHC Ch J82 (1841) Cr & Ph 240, (1841) 4 Beav 115 8; 41 ER 482 rights) is, she submits, sufficient to defeat any claim for exclusive possession by the trustee, NSWTAG, in circumstances where all legal owners of a property (including owners as tenants in common) have an undoubted right of occupation: see Bull v Bull [1955] 1 QB 234 at 237, Biviano v Natoli (1998) 43 NSWLR 695 ("Biviano") at 700; and Owners Strata Plan 50276 v Thoo (2013) 17 BPR 33,789; [2013] NSWCA 270 at [143].
9. As to (2), Ms Togias submits the following in the alternative to characterise her relationship with NSWTAG as that of tenant at will and landlord. She submits that she has at all relevant times occupied the Glenwood property by reason of a tenancy that Mr Subakti granted to her. She submits that NSWTAG derives its legal title to the Glenwood property through Mr Subakti pursuant to the forfeiture order. Where Ms Togias is in actual possession at the time that NSWTAG becomes the registered proprietor, she submits that NSWTAG acquires its title not just as the owner of the Glenwood property, but also as a lessor to Ms Togias. She says that a person holding property on trust for another, as NSWTAG does here, may hold that property subject to a tenancy: DKLR at 520A-B (per Hope JA, Glass JA agreeing). Ms Togias submits that her tenancy has not been terminated by a notice to quit.
10. Therefore, Ms Togias submits that her occupation remains lawful until NSWTAG in future issued a notice to quit to Ms Togias, giving her the one month's notice required by Conveyancing Act, s 127 for the termination of a tenancy at will. Such a notice to quit has not yet been issued. But should that occur, the NSWTAG would become entitled to possession after the expiry of the notice period: Conveyancing Act, s 127 and Sze Tu v Jam Studios Pty Ltd [2018] NSWSC 868 at [167].

Consideration

1. The parties' submissions raise two principal questions relevant to NSWTAG's claim to judgment for possession as registered proprietor: (1) what right to possession if any of the Glenwood property does Ms Togias have as a co-owner in equity; and, (2) whether Ms Togias is a tenant at will of NSWTAG such that NSWTAG needs to issue a Conveyancing Act, s 127 notice to quit to bring Ms Togias's tenancy to an end before judgment to possession could be entered.
2. The Court of Appeal has declared Ms Togias has a 25% interest in the Glenwood property. As NSWTAG is now the registered proprietor of the Glenwood property, it holds that 25% on trust for her. She is therefore an owner in equity of that interest.
3. Ms Togias does not have a right to possession of the Glenwood property as a co-owner in equity. In support of the contrary contention, Ms Togias relies upon statements of Denning LJ (as his Lordship then was) in Bull v Bull (1955) 1 QB 234 at 237 ("Bull") as authority for the proposition that the rights of equitable tenants in common are the same as those of legal owners in common. That was a case in which one of two co-tenants in equity (a son) who was also the legal owner of the property sought to evict the other co-tenant (his mother). Lord Justice Denning said in two related passages the following: "The judge has found that the mother did contribute a substantial amount towards the house and that she did not intend to make a gift of that money to her son. There was therefore no presumption of advancement, but a resulting trust in her favour. Furthermore, the judge has found that, when the house was bought, it was the intention of both mother and son that it, although taken in the son's name, should be a home for them both. He has held that in these circumstances the son cannot turn the mother out now as if she was a trespasser; and that his only remedy is by application to a court of equity. The son appeals to this court. Similar circumstances must often arise in families, but strangely enough there is no authority on the point. The son is of course the legal owner of the house; but the mother and 237son are, I think, equitable tenants in common. Each is entitled in equity to an undivided share in the house, the share of each being in proportion to his or her respective contribution. The rights of equitable tenants in common as between themselves have never, so far as I know, been defined; but there is plenty of authority about the rights of legal owners in common. Each of them is entitled to the possession of the land and to the use and enjoyment of it in a proper manner. Neither can turn out the other; but if one of them should take more than his proper share the injured party can bring an action for an account. If one of them should go so far as to oust the other he is guilty of a trespass: see Jacobs v. Seward.[3] Such being the rights of legal tenants in common, I think that the rights of equitable owners in common are the same, save only for such differences as are necessarily consequent on the interest being equitable and not legal. It is well known that equity follows the law; and it does so in these cases about tenants in common as in others. … My conclusion, therefore, is that, when there are two equitable tenants in common, then, until the place is sold, each of them is entitled concurrently with the other to the possession of the land and to the use and enjoyment of it in a proper manner; and that neither of them is entitled to turn out the other."
4. Ms Togias derives further support from Tobias AJA's application of Bull in the following passages in Owners of Strata Plan 50276 v Thoo [2013] NSWCA 270 at [143] - [145] as follows: "143. Thus, the circumstance that the lot owners have equitable interests as tenants in common of the common property does not of itself impose any duty upon the owners corporation. Rather, it has significance as among the owners themselves. It is their status as equitable tenants in common that gives them rights of enjoyment of the common property. In Bull v Bull at 237, Denning LJ suggested that the rights of equitable tenants in common are the same as those of legal owners in common so that '[e]ach of them is entitled to the possession of the land and to the use and enjoyment of it in a proper manner. Neither can turn out the other; but if one of them should take more than his proper share the injured party can bring an action for an account.' 144. As the discussion by Meagher JA in Forgeard v Shanahan (1994) 35 NSWLR 206 at 222-223 demonstrates, the concept of "proper share" and a common law action for account relates to rents and profits; while a case of ouster attracts common law liability in ejectment and for mesne profits: see also Biviano v Natoli (1998) 43 NSWLR 695 at 700 per Beazley JA, with whom Powell and Stein JJA relevantly agreed. Equity will no doubt award like remedies in the case of a dispute between equitable tenants in common. 145. The important point for present purposes is that the rights and obligations of equitable tenants in common as regards the use and enjoyment of land exist only among themselves. Their status as equitable owners is not the source of any right against or obligation of the trustee who holds the land upon trust for them. The rights that they have against the trustee and the obligations the trustee owes to them derive from the trust and the relationship of trustee and beneficiary. It follows that if the owners corporation, duly and faithfully performing the terms of the trust as embodied in the 1973 and 1996 Acts, acknowledges the interests of the lot owners as a body in the common property and performs the functions otherwise imposed upon it by statute, any complaint that the activities of one owner impair another owner's enjoyment of the common property is a dispute to which the owners corporation, as trustee, is a stranger."
5. But broad though Denning LJ statements appear to be, as Young AJA explained in Frankel v Paterson [2015] NSWSC 1307 at [90], Bull should be read cautiously in this respect. "Mr Einfeld QC and Mr Kerr submitted written submissions based on the English Court of Appeal's decision in Bull v Bull [1955] 1 QB 234 for the proposition that equitable tenants in common have a right to possession in common with their co-owners. Gzell J in Lin v Owners Strata Plan 50276 (2004) 11 BPR 21.463 at [9] and, seemingly, Tobias AJA in Thoo at [143] accepted this proposition. However, with respect, that is the result of a misreading of Bull. The English Court of Appeal merely said that because in England legal tenancy in common was abolished and nowadays tenants in common hold equitable interests behind a statutory trust, they now must hold the same rights as they did before the 'reform'. NSW has not introduced that 'reform'. In NSW, an equitable tenant in common does not have a right of possession unless that right is specially conferred."
6. In the UK a legal tenancy in common could not exist after the introduction of the Law of Property Act (UK) 1925: ss 1 (6), 34 (1) and 36 (2). As a result, a tenancy in common can now only exist in equity in that jurisdiction and the only form of legal co-ownership possible after 1925 was a joint tenancy. The change occurred in UK because, although tenants-in-common was the most desirable kind of ownership for beneficial owners, it was inconvenient for conveyancing because a purchaser who bought the land as a whole was compelled to investigate the title of all the co-owners. To eliminate such difficulties substantial changes in the law were made to reduce the varieties of legal estates and eliminate the need to investigate the title of legal and equitable co-owners. Between 1925 and 1997 the UK legislation achieved this by imposing a statutory trust for sale upon all persons beneficially entitled as tenants-in-common and after 1997 by a statutory trust of land: S. Bridge, E. Cooke and M Dixon, Megarry and Wade, The Law of Real Property (9th ed 2019, London, Sweet & Maxwell) at [12-034] and [12-051]. It is understandable given this regime that Denning LJ would equate the rights to possession of equitable tenants-in-common with legal tenants-in-common.
7. Absent the effect of the Law of Property Act, the position in New South Wales is that equitable tenants-in-common do not have a right to possession. This was stated by Hope JA in the following passage in DKLR (at 519B - 520B). "(16) Several consequences follow. Firstly, an absolute owner in fee simple does not hold two estates, a legal estate and an equitable estate. He holds only the legal estate, with all the rights and incidents that attach to that estate. If he were to execute a declaration that he held the land in trust for himself absolutely, the declaration would be of no effect; C it would give him no separate equitable rights; he would remain the legal owner with all the rights that a legal owner has. At least where coextensive and commensurate legal and equitable interests are concerned, "… a man cannot be a trustee for himself.": Goodright v Wells (10a), per Lord Mansfield. "You cannot have a legal estate in trust for yourself.": Harmood v Oglander (11a), per Lord Eldon. Secondly, although the equitable estate is an interest in property, its essential character still bears the stamp which its origin placed upon it. Where the trustee is the D owner of the legal fee simple, the right of the beneficiary, although annexed to the land, is a right to compel the legal owner to hold and use the rights which the law gives him in accordance with the obligations which equity has imposed upon him. The trustee, in such a case, has at law all the rights of the absolute owner in fee simple, but he is not free to use those rights for his own benefit in the way he could if no trust existed. Equitable obligations require him to use them in some particular way for the benefit of other persons. In illustrating his famous aphorism that E equity had come not to destroy the law, but to fulfil it, Maitland, op cit, at p 17, said of the relationship between legal and equitable estates in land: "Equity did not say that the cestui que trust was the owner of the land, it said that the trustee was the owner of the land, but added that he was bound to hold the land for the benefit of the cestui que trust. There was no conflict here." (17) This relationship can, perhaps, be usefully illustrated by reference F to the possession, and the right to possession, of land which is held by a trustee subject to a private trust. As legal owner, and subject to any disposition of the right, such as would occur upon the granting of a lease, the trustee has at law the right to possession of the land and, unless somebody else is in possession, under him or adversely to him, he also has the legal possession of the land. He may maintain trespass against anyone who infringes that possession, and ejectment against any person who, without his consent, takes possession. At law a cestui que trust has G no right to possession. He cannot sue the trustee at common law in ejectment: Roe d Reade v Reade (18a). If the trustee holds as a bare trustee for a beneficiary absolutely entitled, that beneficiary is, in equity, entitled to be put into possession if he so wishes, but he cannot sue the trustee in ejectment. His right can be enforced only by an order made in the exercise of the equitable jurisdiction of the court. If necessary, the A court will, upon an appropriate indemnity being given, compel the trustee to allow the beneficiary to use his name to bring ejectment. When placed in possession by the trustee, at law the beneficiary is merely tenant at will of the trustee, the tenancy being determinable at law at any time on demand of possession by the trustee: Garrard v Tuck (9a); Melling v Leak (14a). As a corollary, the trustee might at law determine the beneficiary's tenancy and recover the land from him in an action for ejectment, and the beneficiary would have no legal defence. He would, of B course, have an equitable defence which he has long been able, by statute, to plead in the action at law."
8. It is clear from this passage that a trustee of real property may at law determine the beneficiary's tenancy and recover the land in an action for ejectment. That is what NSWTAG seeks to do here and DKLR authorises that course of action.
9. This leads to consideration of whether before pursuing its rights in ejectment the NSWTAG must issue a notice to quit under Conveyancing Act, s 127 which is requires one month's notice in writing to determine a tenancy at will.
10. Although DKLR at 520 A - B suggests that "when placed in possession by the trustee, at law the beneficiary is merely a tenant and will of the trustee" and tenancies at will can arise from domestic situations, the facts here imply a slightly different outcome. A tenancy determinable at the will of either party arises from an express or implied contract created and confers on the lessee a right of exclusive possession for an indefinite period but not for a fixed term or as a periodical tenancy: Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47.
11. NSWTAG did not put Ms Togias in exclusive possession and it is difficult to imply here a contract to give her exclusive possession. Upon becoming registered proprietor in January this year, NSWTAG inherited a situation in which she was already on the land. But the evidence indicates that at that time she did not have exclusive possession of the land as might have been the case with a tenant at will let into possession by NSWTAG. In January 2023 she was sharing occupation of the land with another person, Mr Subakti, who happened to be the prior registered proprietor.
12. From the time that NSWTAG became registered proprietor it should be inferred that NSWTAG also licensed Mr Subakti, as the previous registered proprietor, also to occupy the property on a non-exclusive basis with Ms Togias. As soon as NSWTAG became the registered proprietor, Mr Subakti had no interest in the Glenwood property but was also in occupation, with the implied consent of NSWTAG. NSWTAG has an independent right to seek his removal. But Mr Subakti is not part of Ms Togias' domestic household. They are no longer in a personal relationship. The evidence supports the inference that he lives separately from her under the one roof. Notice should be given to him of NSW TAG's claim to possession.
13. These circumstances lead to the inference that Ms Togias is a mere licensee of NSWTAG. It is not obliged to issue a Conveyancing Act s 127 notice in writing to her to seek possession. In the Court's view, sufficient notice of revocation of that license was given to her by the service of NSWTAG's February 2023 motion. But the Court is not yet satisfied on the evidence that notice of the NSWTAG's claim has been given to Mr Subakti. Judgment for possession will be able to be entered once the Court is satisfied he has notice and does not raise any other defence.
14. The only other obstacle raised to the entry of judgment for possession, is Ms Togias's submission that she is entitled, under Conveyancing Act, s 66(1) to purchase the Glenwood property and can resist the orders for possession that might negate or diminish that entitlement. But Angius v Salier [2017] NSWSC 198 at [34]-[44] does not go so far as to state that. Conveyancing Act, s 66I gives a right to possession before sale. It is merely an example of the Court exercising its discretion to regulate the sale process fairly.
15. The Court will accordingly give leave to the second defendant to enter judgment for possession, upon satisfying the Court that notice of these proceedings has been served on Mr Subakti. This can be done in chambers. This leads to the question of whether and when a writ for possession should be issued, once judgment for possession is entered, It is convenient to deal with this issue now even though judgment for possession has not yet been entered.

A Writ for Possession

1. NSWTAG requires leave to issue a writ of possession to enforce a judgment for possession: Uniform Civil Procedure Rules, 39.1(1)(d) ("UCPR"). And Civil Procedure Act 2005, ss 67 and 135 give the Court power to stay a judgment for possession until a property is sold, a power the Court also has in its inherent jurisdiction: Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at 344-345 and see Black J in Re Webuildem Pty Ltd [2012] NSWSC 708. This power is commonly exercised in a practical manner to provide a result that is just and convenient and preserves the rights of all with an interest in the outcome of the sale.
2. Ms Togias' interest in the Glenwood property may be enforced and realised by way of a judicial sale: King Investment Solutions v Hussain [2005] NSWSC 1076 at [82]; (2005) 64 NSWLR 441 ("Hussain"). In the exercise of this equitable jurisdiction, the Court has considerable discretion as to the manner and conduct of the sale and an owner is usually given an opportunity to redeem before sale: Hussain at [111]-[119]. This discretion may include setting the terms of occupation before the sale that appears to be most beneficial to the parties: the authority Lucas v Lucas [1962] Qd R 205 at 209 per Gibbs J supports the imposition of such terms in a partnership context.
3. The NSWTAG says that no judicial sale is being sought here. That proposition does not yet need to be tested. But if a judicial sale were to occur notice would have to be given to the first mortgagee.
4. There is a compelling argument here to stay any judgment for possession that is entered in chambers for a further period for several reasons. First, the Glenwood property has been Ms Togias' home for the last 20 years. The dislocation involved in her leaving the property would be great and the disadvantage to NSWTAG in her occupying the property in the short to medium term is not great. She has a compelling argument to stay in possession until sale unless her possession somehow undermines the benefits to be secured by the sale. And there is no persuasive evidence of that.
5. Second, Ms Togias will only realistically be equipped to decide whether to exercise her intention to purchase the Glenwood property, once the set-off issue has been decided and any necessary calculations of the quantum of such set-off have been completed. Ms Togias needs to know with as much precision as reasonably possible, what her financial resources will be to fund that acquisition. This will take some time and when complete will afford Ms Togias capacity to approach financiers.
6. Third, the Court is not persuaded on the present evidence that NSWTAG requires possession of the Glenwood property to make necessary repairs before sale. The usual correspondence that might indicate the need to make particular pre-sale repairs does not stand out here. Indeed, the main evidence about the repairs that may be needed comes from Ms Togias herself. Moreover, Ms Togias has offered to provide NSWTAG access to complete any necessary repairs. Both parties seem to agree that an expeditious sale is required. This implies that Ms Togias is likely to cooperate in pre-sale preparations. It is not uncommon for properties to be marketed whilst occupied.
7. Fourth, leaving Ms Togias at the Glenwood property pending sale may have advantages. Having the property unoccupied before sale increases the risk of damage to the property and may involve additional expense in security and insurance expenses in relation to the property which would weigh as disadvantages in taking that course.
8. For these reasons and on the present evidence, the Court will not issue a writ for possession of the Glenwood property at this time as requested by NSWTAG in the February 2023 motion. The issue of a writ will be stayed but upon terms that she continues to pay mortgage instalments to Permanent and co-operates in giving access to NSWTAG to the property.
9. But in conclusion, the present evidence is unsatisfactory that Ms Togias is in a position to purchase the property. The numbers may be shortly stated. The market value appraisals of the Glenwood property indicate a sale price of approximately $1.6 million. Ms Togias has not yet indicated a source of funds to purchase the property other than her 25 per cent interest in the property. NSWTAG has calculated that her 25 per cent interest in the property would at settlement, after the deduction of her proportion of the first mortgage and other expenses amount to $279,113 on a purchase price of $1.6 million. The NSWTAG submits with considerable force that this is unlikely on the present evidence, because it would require her to obtain a loan of approximately $1,320,887. Her taxable income since 2019 has been $13,862 and since 2015 has not been above $61,059. During the pandemic Ms Togias' companies have appeared to have suffered losses. But Ms Togias says she is working every day to build up her business and that its financial position has improved in 2022-2023, and that she now has income of about $6,200 per month. She is dealing with a mortgage broker.
10. But whatever prospects to acquire the Glenwood property she has, they cannot really be tested until the other set off and related issues in these proceedings are determined. But as soon as those issues are resolved Ms Togias can anticipate that the Court will closely scrutinise her financial capacity and resources to acquire the Glenwood property in deciding whether to continue a stay on the writ for possession.

The Set Off Issue

1. The Court originally proposed that the possession issue and the set off issue would be dealt with in chambers on written submissions. But the issues raised by the parties on the set off issue make that issue unsuitable for determination in chambers. The parties' submissions engage in a contest about how the orders of the Court of Appeal should be construed. Resolution of this question depends in part upon analysis of the issues that were in contest before Sackar J and on appeal and how those issues were disposed of on the appeal. Because this proceeding is not now before the trial judge but another judge who was not involved either in the trial or the appeal, it is desirable that these issues of the proper construction of the Court of Appeal's orders be elaborated in oral submissions so that the Court can ask the parties questions arising out of their submissions.
2. The parties should be assisted by the following observations, that are made in anticipation of that oral hearing of the set off issue. If the orders of the Court of Appeal are construed in the manner to which Ms Togias contends and no occupation rent should be charged to Ms Togias, then the parties should in their submissions focus upon any factual issues relating to ouster, which would be raised in those circumstances. As Meagher JA stated in Forgeard v Shanahan (1994) 35 NSWLR 206 ("Forgeard") at 223D-E, where one co-owner has been in exclusive occupation of the co-owned property that party may only be charged with an occupation rent if the party has ousted the other co-owner or co-owners or if the occupying party is seeking an allowance for improvements, but there is no authority beyond that authorising the charging of an occupation rent. The parties should therefore consider whether there is any evidence of ouster by Ms Togias of Mr Subakti when he was co-owner in equity.
3. The parties should also bear in mind two other matters. The first is that the success of the NSWTAG's submission on the possession issue that Ms Togias is not a tenant at will of the Glenwood property may have implications for the calculation of market rent for the Glenwood property, because she occupies it under licence as her occupation is not exclusive. And finally when calculating an occupation fee the parties should be mindful of the observations of Beazley JA (as Her Excellency then was) in Biviano v Natoli (1998) 43 NSWLR 695, at 703E - 704E, that an appropriate occupation fee for an ousted co-tenant would not ordinarily be the full rental value of the property in question but a letting on the basis that there is already a co-tenant in occupation, which situation would not ordinarily attract a market rental based on full occupation and may not even attract 50% of the market rental.

Conclusions and Orders

1. For these reasons the Court makes the following orders and conclusions: 1. In respect of the relief claimed in Order 2 of the second defendant's motion dated 13 February 2023, the second defendant may apply in chambers for the entry of judgment for possession against the plaintiff for the whole of the land contained in [address not published], Glenwood, NSW 2768 ("the Glenwood property"), upon satisfying the Court by evidence that Mr Wayan Subakti, an occupant of the Glenwood property, who is not part of the plaintiff's household has been served with notice of these proceedings and does not otherwise oppose the entry of judgment for possession. 2. The Court notes that when issued the second defendant's writ for possession of the Glenwood property will be stayed until further order. 3. If the plaintiff fails to pay the monthly instalments due to the first mortgagee of the Glenwood property, Perpetual Trustees Victoria Limited or fails reasonably to cooperate with reasonable requests for inspection of or access to the Glenwood property to facilitate its sale, then the second defendant is at liberty to re-list the proceedings to apply to lift the stay imposed by Order (2). 4. The set off issue identified in the Court's orders dated 11 April 2023 is adjourned for hearing for an estimated time of 1 hour commencing at 9.30am on Monday, 4 September 2023 or on such other date and time as may be arranged for the convenience of counsel and solicitors with the chambers of Slattery J. 5. Costs reserved. 6. Grant liberty to apply.

Amendments 12 September 2023 - Decision - changed "Plaintiff granted leave" to "Second defendant granted leave". changed - "her former defacto" to "that the plaintiff's former de-facto". Catchwords - changed "whether the defendant" to "whether the second defendant". Paragraph [1] - changed "the first" to "one". Paragraph [6] - changed "claim" to "claimed". Paragraph [9] - changed "first" to "second". Paragraph [22] - changed "Ms Togias" to "she". Paragraph [23] - changed "Ms Togias" to "her". Paragraph [24] - deleted "submissions". Paragraph [28] - changed "and" to "such". Paragraph [53] - changed "is not" to "was not". 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: 12 September 2023