//
[2025] NSWSC 937
General information, not legal advice.
Supreme Court of NSW
2025-08-18
Slattery J
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Togias v State of New South Wales [2025] NSWSC 937
Hearing dates: 13 March 2025
Date of orders: 18 August 2025
Decision date: 18 August 2025
Jurisdiction: Equity
Before: Slattery J
Decision: Second defendant entitled to set off a notional occupation fee for the Glenwood property against the plaintiff’s claim for reimbursement of mortgage payments and other outgoings. Notional occupation fee fixed at 25% of the market rent of the property. Costs orders of the original trial judge varied so that the second defendant pays 80% of the plaintiff’s costs of the proceedings. Directions made for the fixing of a specified gross sum instead of assessed costs.
Catchwords: LAND LAW – Co-ownership – co-tenants in occupation – one co-tenant, the plaintiff, claims reimbursement for outgoings expended by her on a residential property, the Glenwood property, she has occupied since 2010 – no evidence that the plaintiff/co-tenant has ousted the other co-tenant, represented by the second defendant, from occupation of the Glenwood property – whether the second defendant can set off a notional occupation fee for the Glenwood property against the plaintiff’s claim for mortgage payments – what evidence is sufficient to establish a notional occupation fee for the Glenwood property – what is the proper quantum of an occupation fee for the Glenwood property since 2010.
COSTS – proceedings in the Court of Appeal vary the trial judge’s determination of the equitable ownership of the Glenwood property – the trial judge retires – proceedings remitted to the Equity division to a different judge for the redetermination of relief, including the calculation, if required, of a notional occupation fee for the Glenwood property based on the decision of the Court of Appeal – trial judge’s cost orders left open the redetermination – what costs order is now appropriate.
COSTS - specified gross sum instead of assessed costs – Civil Procedure Act 2005, s 98(4)(c) – possible appointment of a single court expert in relation to costs pursuant to Uniform Civil Procedure Rules 2005 (UCPR), r 31.46 – parties negotiating to settle proceedings and for one party to buy out the other’s interests in the Glenwood property – whether the circumstances are appropriate for a specified sum to be fixed instead of assessed costs, or for costs to be fixed by a single court appointed expert – whether a maximum costs order should be made under UCPR, r 42.4.
Legislation Cited: Civil Procedure Act 2005, Part 6 and s 98(4)(c).
Cases Cited: Bellia v Colonial Sugar Refining Co Ltd (1961) SR (NSW) 401
Biviano v Natoli (1998) 43 NSWLR 695
Blatch v Archer (1774) 1 Cowp 63; 90 ER 969
Callow v Rupchev (2009) 14 BPR 27; [2009] NSWCA 48
Forgeard v Shanahan (1994) 35 NSWLR 206
Luke v Luke (1936) 36 SR (NSW) 310
Minister of State for the Interior v RT Company Pty Ltd (1962) 107 CLR 1
NSW Trustee and Guardian v Togias [2022] 406 ALR 254; [2022] NSWCA 225
Pascoe v Swan (1859) 27 Beav 508; 54 ER 201
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
Richardson v Richardson [2021] NSWSC 353
Ryan v Dries (2002) 10 BPR 19 [2002] NSWCA 3
Teasdale v Sanderson (1864) 33 Beav 534; 55 ER 476
Togias v State of New South Wales [2023] NSWSC 665
Togias v State of New South Wales [2024] NSWSC 703
Texts Cited: K Gray and S F Gray, Elements of Land Law, 5th Edition, Oxford University Press, 2009 at [7.4.44]
Category: Consequential orders
Parties: Plaintiff: Nicolitsa Togias
First Defendant: State of New South Wales
Second Defendant: NSW Trustee and Guardian
Representation: Counsel:
Plaintiff/Respondent: Mr N. Kabilafkas
Second Defendant/Applicant: Mr T S Hale SC (for Trustee)
Solicitors:
Plaintiff/Respondent: Fox & Staniland Lawyers
File Number(s): 2020/189689
Publication restriction: No
This is the Court’s third judgment in the post appeal applications in these proceedings. The Court gave its first judgment concerning this post-appeal phase of the proceedings on 20 June 2023 (Togias v State of New South Wales [2023] NSWSC 665) and its second judgment on 11 June 2024 (Togias v State of New South Wales [2024] NSWSC 703). This third judgment should be read with these two post-appeal judgments which deal with the legal arguments had consequent upon the decision of the Court of Appeal in NSW Trustee and Guardian v Togias [2022] 406 ALR 254; [2022] NSWCA 225 and assumes familiarity with them. Findings of fact and relevant legal conclusions are made in those two post-appeal judgments. Persons, matters, and events are referred to in the Court’s previous judgments are referred to in the same way in this judgment.
Since the second judgment, the parties filed supplementary evidence and conducted negotiations. The Court was informed in February of this year the parties had not resolved the proceedings, despite their shared expectations to the contrary. The Court proceeded to hear final submissions on the remaining contested issues on 13 March 2025.
At that hearing, Mr N Kabilafkas instructed by Fox & Staniland, solicitors, continued to appear appeared for Ms Togias and Mr T Hale SC, instructed by an employed solicitor by TAG, appeared for the second defendant.
The principal remaining issues resolved in this judgment are the following:
whether Ms Togias should be charged an occupation fee in relation to the Glenwood property and if so in what amount; and
what revised costs order should be made in the proceedings considering the decision of the Court of Appeal and the decisions on the remitter from the Court of Appeal.
A broader consequential issue, for which these reasons make some directions, is when all issues in these proceedings are resolved including costs, whether Ms Togias will be able to purchase the Glenwood property after credit is given for her 25% interest in the property, for the monies owed to her by TAG, and for any awards of costs in her favour.
The parties agreed that because of Sackar J’s retirement, I should conduct the matter as if I was the trial judge and could have regard to the evidence before Sackar J in my present determination notwithstanding I did not see the witnesses.
The primary contest between these parties is whether TAG should be permitted to set off an occupation fee for against Ms Togias’ claim for her payments for outgoings, including mortgage payments, over the Glenwood property from the date that her husband was arrested. Both parties adduced contested evidence, both lay and expert, about the occupation and market rental of the Glenwood property over the period in question.
On 19 December 2024, the Court directed that Ms Togias provide an updating affidavit with respect to the payments she made towards the mortgage for the Glenwood property by 6 February 2025. The plaintiff calculated her outgoings for the Glenwood property from the termination of her relationship with Mr Subatki upon his arrest on 29 January 2010 up to shortly before 6 February 2025 (namely 10 January 2025) as follows:
$502,399.24 for mortgage payments
$5,160 in respect of council rates; and
$7,232.21 in respect of fixed water rates.
The total outgoings Ms Togias paid out over this period for the Glenwood property were therefore $514,791.45.
The Court can give some indicative calculations of their competing contentions up to 6 February 2025. But subject to the Court’s later directions, the calculations will need to be updated and adjusted before any sale of the Glenwood property takes place or the proceeds of sale are distributed.
Ms Togias claims she is entitled to be compensated for 75% of $514,791.45, reflecting her 25% interest in the Glenwood property, namely the sum of $386,093, exclusive of interest. The parties both agreed that they would not seek to include interest in their calculations.
TAG acknowledges that the total mortgage rates and water and council rates payments made by Ms Togias to 10 January 2025 were $514,791 and that it must give credit to the plaintiff for $386,093 (being 75% of the plaintiff’s outlays of $514,791.45). But TAG submits that the rental value of the Glenwood property for the same period significantly exceeds the sum of $386,093.
TAG submits that the plaintiff has had the benefit of possession of the Glenwood property over the same period, which is worth a total rental value well exceeding the amount of $386,093 for which Ms Togias should be given credit. TAG says that the expert evidence establishes that the rental value of the Glenwood property up to January 2023 was $476,647, which exceeds the 75% of the mortgage and other outlays paid by the plaintiff.
TAG has undertaken a rough calculation of this to illustrate its case. TAG accepts the rental value of the premises up to January 2023 was $476,647. TAG then takes the available expert evidence of the weekly market rent between January 2023 and January 2025 of $800 per week (or $41,600 per annum), therefore TAG says a figure exceeding $80,000 in rent accumulated in the last two years. TAG says that Ms Togias’ total rental benefit is of the order of $556,000 (being $476,000+$80,000). This figure is approximate and can be rounded to $550,000 TAG says that this will completely neutralise the $386,093 representing the 75% of the any payments that Ms Togias has made over the same period for which she is seeking payment, or credit when she attempts to purchase the Glenwood property.
The financial merits of this argument turn on whether that figure of approximately $550,000 is correct. For the reasons which follow it is not. But before reaching those reasons there was a significant procedural argument about whether TAG should be permitted to rely upon its expert evidence from a valuer, Ms Lynette Savage, who was responsible for the rental valuation of the Glenwood property over the relevant period.
The proceedings have had a curious history. After the Court’s first and second judgments on the remitter, the proceedings were fixed for hearing on 8 October 2024 to decide questions which had been identified by orders made on 7 June 2024 mainly:
(a) whether or not there had been any ouster of Mr Subatki or the second defendant by the plaintiff from the Glenwood property; and (b) what is the appropriate measure of an occupation fee for the plaintiff's occupation of the Glenwood property:
(i) in the event there has been ouster of Mr Subatki or the second defendant from the Glenwood property, or (ii) in the event there has been no ouster of Mr Subatki or the second defendant, but equity and good conscience in the circumstances of this case nevertheless require the plaintiff to pay some occupation fee.
The Court ordered the parties on 22 July 2024 to serve their evidence and submissions for the 8 October hearing. But the second defendant failed to do so. Mr Hale SC explains this as arising from change of solicitors which occurred at about that time. This may be right, and the Court of course accepts what Mr Hale SC says from the Bar table on the subject. But TAG adduced no evidence to explain its default or how the change of solicitors led to this result. And TAG made no application for leave to extend time for submissions to be filed.
TAG’s failure to file evidence and submissions first meant that it did not identify any act of ouster by Ms Togias either of Mr Subatki or of the second defendant from the Glenwood property. Nor did Mr Hale SC attempt to identify any such act of ouster. Mr Kabilafkas submits on behalf of Ms Togias that it follows that the second defendant has failed to discharge its onus of establishing that she is liable to pay an occupation fee for any time prior to the undertaking she gave to the Court on 21 May 2021. The Court accepts that TAG has not established any act of ouster and has proceeded on the basis that Ms Togias did not oust Mr Subatki or TAG from the Glenwood property at any time since 29 January 2010. But as will be seen this is not decisive in the outcome of these proceedings.
TAG also failed to file evidence about the assessment of the quantum of an appropriate occupation fee for Ms Togias after her undertaking to the court on 21 May 2021. By orders made by consent on 3 July 2024, the parties agreed that the TAG’s valuation expert, Ms Savage, would be retained to provide expert evidence as to the value of Ms Togias' occupation of the property pursuant to the undertaking she had given on 21 May 2021.
No such evidence was filed or served. Mr Kabilafkas now submits on behalf of Ms Togias that TAG has failed to establish the amount of any occupation fee payable for the period after the undertaking and that given the overall lack of evidence about an occupation fee, the Court should find no occupation fee is payable for the whole period of her occupation.
Mr Kabilafkas’ submission is not persuasive. There is some evidence about the market rent of the Glenwood property available from TAG’s expert, Ms Savage. It would deny procedural fairness to TAG not to consider this material. TAG should not be disadvantaged by the Court not acting on such evidence as is now before it. The Court can determine for itself, based on the authorities, whether that evidence can be used to determine an occupation fee, notwithstanding that there is now no expert evidence directly on that subject.
Ms Togias’ submits no application was made by TAG to be relieved of the orders made on 22 July 2024 or for extension of time and that TAG should not be permitted to rely upon evidence not prepared in accordance with the orders of the Court for this hearing.
(a) on what basis in principle can an occupation fee be charged, (b) is there sufficient evidence to calculate an occupation fee, (c) should an occupation fee be set off against the plaintiff’s claim in this case, and if so (d) what is the proper quantum of that occupation fee.
These reasons now deal with each of these questions in turn.
Ms Togias originally argued she should not have to pay an occupation fee because there was no evidence that she had ousted Mr Subatki or TAG from the Glenwood property after 2010 and therefore there was no entitlement for an occupation fee to be charged against her. As the accounts above of the procedural steps taken in these proceedings shows, there is indeed no evidence that Ms Togias ousted Mr Subatki or TAG from the Glenwood property after 2010. But Mr Kabilafkas properly conceded in final submissions that he could not sustain that contention, he having examined the applicable authorities more closely. The Court concludes here that there is a proper basis in principle to charge an occupation fee.
Mr Kabilafkas ultimately conceded that the case law shows Ms Togias would be liable as a co-tenant in occupation to pay an occupation fee, even if she had not ousted Mr Subatki or TAG because she is now seeking the recovery of mortgage payments she has made for the Glenwood property since 2010. As the short discussion below shows, this concession is correct.
The applicable principle is well-established, although the case law applying it in relation to mortgage payments is relatively sparse. An occupation fee may be recovered from a co-tenant in occupation in two accepted situations in a partition suit or in related litigation such as the present suit. These situations were identified in the passage from Forgeard v Shanahan (1994) 35 NSWLR 206 cited in my second judgment (at [28]).
The first situation arises if there has been an exclusion of one co-tenant by the other, the co-tenant remaining in occupation can be charged with an occupation fee: Pascoe v Swan (1859) 27 Beav 508; 54 ER 201. The second situation is if, without ouster, the owner in occupation claims an allowance in respect of repairs or improvements effected by that owner, equity will permit such an allowance only on terms that the owner in occupation is accountable for an occupation fee, that being an example of one who comes to equity having to do equity: Teasdale v Sanderson (1864) 33 Beav 534; 55 ER 476.
The case law is clear that in the second situation the claimable repairs or improvements are not limited to physical improvements but may extend to expenditure to meet the outgoings of the property such as the reduction of a charge on the property through the making of mortgage payments: Ryan v Dries (2002) 10 BPR 19, 497 [2002] NSWCA 3 at [71]; BC200200137 and Callow v Rupchev (2009) 14 BPR 27, 533; [2009] NSWCA 48 at [60] – [61] citing K Gray and S F Gray, Elements of Land Law, 5th Edition, Oxford University Press, 2009 at [7.4.44], and Luke v Luke (1936) 36 SR (NSW) 310, at 317.
Here, Ms Togias, who is a co-owner in occupation, is claiming reimbursement for her share of mortgage payments and other outgoings on the Glenwood property. On the principle of one seeking equity must do equity, she will be accountable for an occupation fee for the period of her occupation of the Glenwood property, which coincides with the period for which she seeks credit for her mortgage payments.
The Court has several sources of evidence to calculate an occupation fee for Ms Togias’ occupation of the Glenwood property from 2010: her own evidence in the proceedings and on the present application of the physical features, layout and common usage of the property and Ms Savage’s expert evidence of the area, fittings, age, and configuration of the Glenwood property and the applicable market rent of the property. These are substantial sources to draw upon, which is also demonstrated by the discussion of this evidence later in these reasons.
But Mr Kabilafkas submits that events that Ms Savage’s expert evidence which gives the market rental of the property is not a proper basis for the Court to infer an occupation fee for the Glenwood property. This contention is not persuasive for the following reasons.
Biviano v Natoli (1998) 43 NSWLR 695 (“Biviano”), indicates that (a) courts have been prepared to act on less evidence than is available here, and (b) the authorities give some guidance to confine the range of assessment of an appropriate occupation fee.
In Biviano*,* Beazley JA (as Her Excellency then was) discussed (at 703E – 704H) the integers of a calculation of an appropriate occupation fee in a passage which is reproduced below in full. The passage from Biviano is as follows:
“Calculation of the occupation fee:
That leaves for consideration the question of the amount of the occupation fee. The trial judge allowed an occupation fee based on the full rental value of the property but made an arbitrary deduction of 35 per cent for vicissitudes and for “all outgoings on the property … paid by the [appellant]”. The respondent, although claiming an occupation fee based on 100 per cent of the rental value, did not mount any strong challenge to the trial judge's approach. The appellant contends, however, that the occupation fee should be based upon half the rental value.
In Pascoe v Swan, the plaintiff's mother and the defendant were tenants in common. On her death, her interest in the property descended on the plaintiff who was then an infant. The defendant, who had previously occupied the estate, continued in possession and farmed the estate, but never paid any rent to the plaintiff in respect of his one-third part of the estate, and he excluded the plaintiff and altogether denied his interest in the estate. The plaintiff brought a partition suit, and also sought occupation rent for his one-third of the estate since the death of his mother.
Sir Romilly MR held that the defendant must account for the rents received by him since the death of the plaintiff's mother, and that in the taking of accounts, the defendant must be charged with a proper occupation rent for one- third of the estate. Allowance had to be made, however, for lasting improvements of the estate: see also Dennis v McDonald where half the rental value was ordered by way of occupation fee.
It is surprising that there is not more authority on this question. In my opinion, the starting point for the determination of the question is first, the principle that a co-tenant is entitled to the use and occupation of the whole of the premises and secondly, that the entitlement of the ousted tenant is to an occupation fee. The occupation fee is in fact mesne profits arising from the occupying co-tenant's wrongful ouster. Mesne profits are not rent: see Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 39. They are calculated on the open market value of the premises: see Rock Bottom Fashion Market Pty Ltd (In Liq) v HR & CE Griffiths Pty Ltd (Court of Appeal, Queensland, 6 March 1998, unreported) at 10-12. The measure … is a reasonable sum in the nature of rent: see Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 at 252. This is often proved in fact by relying on the amount of rental payable under an existing lease: see Atkin's Encyclopaedia of Court Forms in Civil Proceedings, 2nd ed, vol 24, par 22; Halsbury's Laws of England, 4th ed, vol 27, par 255; Rock Bottom Fashion Market Pty Ltd (In Liq) v HR & CE Griffiths Pty Ltd.
Notwithstanding that a co-tenant has a right to occupy the whole property, I do not consider that it is appropriate to merely take the rental value for the whole of the property. It would be inequitable to do so because an actual letting of the property where there is already a co-tenant in occupation would not attract a market rental based on full occupation. It may not even attract 50 per cent of the market rental.
The onus of establishing the quantum of the occupation fee falls upon the party claiming it — namely, the ousted co-tenant. The respondent proved the rental value of the property based on there being no other person already in occupation. He did not prove the rental value on the basis that the appellant and her daughter also occupied the property, as they were entitled to do. Notwithstanding that, I am of the opinion that as the appellant did not seek to assert any lesser figure than 50 per cent, that is the appropriate percentage to apply. Accordingly, the respondent is entitled to half the rental value of the property from 2 August 1995. I do not consider it appropriate to make any deduction for capital outgoings such as local council and water rates in the circumstances of this case. If there was evidence that the occupation fee sought did not include an allowance for these matters, there undoubtedly would have to be an accounting between the parties. That is not this case.
Accordingly, I propose that the appeal be allowed in part, that the order of the trial judge in respect of payment of an occupation fee be set aside, and that there be substituted an order that the appellant pay to the respondent an amount of half of the rental value of the property from 2 August 1995 to the date of trial.”
This passage from Biviano shows that the Court here has quite sufficient evidence to fix an occupation fee for the Glenwood property since 2010. It does so in three ways.
First, the passage confirms that established authority indicates that an appropriate starting point to infer the quantum of an occupation fee can be the market rent for the whole property. This follows because what is being measured is “a reasonable sum in the nature of rent” and in practice the occupation fee is “often proved in fact by relying on the amount of rental payable under an existing lease”. The passage confirms that courts have been prepared to infer an appropriate occupation fee relying directly upon market rental evidence for the subject premises without first exploring expert evidence about a possible market for shared occupation of the premises.
Secondly, this passage from Biviano confirms that once the market rent for the whole premises can be ascertained there will be a limited available range of inferred values of an applicable occupation fee, and courts have been prepared to act upon quite basic evidence about market rents to infer an appropriate occupation fee. In Biviano, Beazley JA readily applied a discount of 50% from market rent to the claimable occupation fee, in the absence of any attempt to assert a lower figure. The facts of every case will be different but a 50% discount from market rent will often be a practical upper bound to a set off for an occupation fee.
Thirdly, this passage from Biviano confirms that Beazley JA herself used directly the market rent for the whole premises in Biviano to infer an applicable occupation fee for those premises.
Moreover, the logic for this approach in Biviano is compelling. Trying to infer a market rate for shared accommodation in a specific house from other shared house accommodation is inherently difficult. Identifying comparable shared accommodation in comparable areas with comparable services is likely to be difficult, unnecessarily expensive and time-consuming and likely to put strain on this Court achieving the objectives of Civil Procedure Act 2005, Part 6. Although in the second judgment (at [38]) the Court foreshadowed that the expert evidence then available would need to be adjusted before the final hearing, because the current evidence from Ms Savage only indicated the full market rent of the Glenwood property, the parties have not since then shown any momentum towards providing better evidence of comparable shared accommodation.
Against this conclusion, Mr Kabilafkas submitted that the Court should not just try and “do the best it could on the available materials”, citing Lord Mansfield’s famous dictum in the Blatch v Archer (1774) 1 Cowp 63 at 65; 90 ER 969 at 970,
“It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to produce and in the power of the other two have contradicted.”
This oft-cited principle can be generalised as that one party’s knowledge of essential facts may lessen the amount of evidence required to discharge an evidential burden borne by his adversary: Bellia v Colonial Sugar Refining Co Ltd (1961) SR (NSW) 401.
The first answer to this point is that the available materials are sufficient for the Court to now act upon them. But it is also difficult to see how this principle assists the plaintiff here. Neither side has called specialist evidence about occupation fees in comparable shared situations. Such specialised evidence is no more within TAG’s knowledge any more than it is within the plaintiff’s knowledge.
A co-tenant in occupation who without ouster of the other co-tenant, comes to equity and seeks an allowance for improvements should ordinarily do equity and become accountable for an occupation fee: Forgeard v Shanahan*,* at 223A-D. It might perhaps be inferred that this principle is what Mitchelmore JA had in mind in the Court of Appeal’s judgment (at [113]) that the appropriate remedy in respect of those payments would be an equitable charge “in respect of which there may need to be set off with respect to the respondent’s occupation the Glenwood property with her children” (emphasis added). But as was discussed in my second judgment (at [28]) her Honour left open to the trial judge the question of whether a set off would be allowed in the circumstances.
And her Honour may have equally had in mind that Ms Togias should be granted relief by way of an equitable charge in respect of her mortgage and other contributions to the Glenwood property merely because Ms Togias was being granted equitable relief by way of a charge in respect of those mortgage and other payments for the Glenwood property and for that equity she should do equity but potentially allowing set off for her occupation.
Either way, the ordinary principle that one seeking equity should do equity should apply here. As TAG argued, Ms Togias herself strongly connected her continuous payment of the mortgage over the Glenwood property with her need to keep a familiar roof over her head. And as a result, she enjoyed occupation of the property which was a benefit for her. It is not obvious why the ordinary principle of one seeking equity doing equity should not apply. And “doing” equity here comes within a well-established category of equities, as Forgeard v Shanahan recognises.
None of Ms Togias’ other arguments to the contrary is persuasive. Although one of Mr Kabilafkas’ arguments requires separate mention. Mr Kabilafkas pointed to the observations of Beazley JA cited above from Biviano*,* based on statements in Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 39, that “[t]he occupation fee is in fact mesne profits arising from the occupying co-tenant's wrongful ouster” and that m**esne profits are not rent. Mr Kabilafkas submitted that given that an occupation fee was me**sne profits there may be a procedural restriction in TAG recovering an occupation fee.
That procedural restriction derives from Minister of State for the Interior v RT Company Pty Ltd (1962) 107 CLR 1, which is authority for the proposition that a claim for me**sne profits cannot succeed unless the plaintiff proves that the plaintiff entered into actual possession or occupation of the subject premises before bringing such a claim. The principle was recently applied by Ward CJ in Eq (as her Honour then was) in [2021] NSWSC 353 at [151] – [166] to reject a claim for profits.
As indicated, the Court has two kinds of evidence to infer an appropriate occupation fee for the Glenwood property since 2010 – Ms Lynette Savage’s expert evidence and Ms Togias’ evidence. The Court wholly accepts the evidence from both these witnesses. Neither witness was challenged with competing evidence or cross examined on this application. Their evidence on these issues is inherently credible.
Ms Savage’s Evidence. Ms Savage, a certified practising valuer, provides an expert report through her affidavit of 6 March 2023. Ms Savage’s report covers rental for the Glenwood property for the period from 29 January 2010 to 23 January 2023. For convenience, the parties agreed to infer the continuation of her findings after that date.
The starting point is Ms Savage’s description of the Glenwood property. The property was built about 1999. It is a two-story rendered brick veneer and concrete tile roof, four bedroom and three-bathroom dwelling. It has a double lock-up garage under the main roof line. It is located on a 734 m² parcel of land. Internally it has built-in wardrobes to 3 bedrooms, an ensuite and walk-in wardrobe for main bedroom, a stone bench top, ducted air-conditioning, carpet and tile flooring, downlights, plantation shutters, a vaulted ceiling to the rumpus room and an automatic garage door.
The dwelling house Glenwood property has rear and side patios, a balcony, a front entry porch and veranda and established lawns and gardens. Internally, it has the usual range of laundry kitchen and bathroom fittings. The dwelling is 312 m². The patio and balcony are 32 m², the veranda is 15 m² and the garage 45 m².
Ms Savage records the assumptions she makes to determine market rent for the period from 29 January 2010 to 23 January 2023. These are the following: the property is vacant and available to be leased; the property is leased by a willing lessor to a willing lessee on appropriate lease terms in an arms-length transaction; and the property was maintained in a reasonable condition for the duration of the lease and was supervised by managing agent. These assumptions are, of course, quite different to those applicable to acquiring a non-exclusive licence at will over the property.
Using comparable property methodology, Ms Savage formed the opinion that the rental value of the Glenwood property from 29 January 2010 to 4 May 2010 to 23 January 2023, was a total gross rent of $476,647, a figure which she then rounds down to $475,000.
It is not necessary to set out Ms Savage’s full calculation. But she commences by determining a market rent for the Glenwood property of $560 per week in January 2010 at the beginning of the period. By the application of CPI increases for each of the years between 2010 and 2023, and by applying the direct comparison method during those years, she reaches a rental of $800 per week.
It is now possible to give an indicative calculation of the financial consequences of these findings. It is possible to do that up to 23 January 2023 when the parties’ figures are agreed. The parties will have to undertake further calculations beyond that date because the Court does not have the figures as to what mortgage payments and other outgoings have been made since then. The parties will be directed to bring in agreed up-to-date calculations.
The Court’s findings mean that the approximate calculations of the parties up to up to January 2025 for the value of Ms Togias’ occupation of the Glenwood property should be assessed at $137,500 (being 25% of the total market rent for the relevant period of $550,000).
This sum is less than the credit the plaintiff is claiming for her outlays of $386,093 for the same period. If these figures were to become final, for example, she would be entitled to a net credit of $248,593 for her outlays after deducting a set off for her occupation of the property.
The parties should bring in an agreed calculation of the amount up to an agreed date for the making of final orders to give effect to these reasons.
The Court of Appeal determined the question of costs of the appeal and set aside the orders made by Sackar J for the hearing before him. This Court should now redetermine costs at first instance both before and after the appeal proceedings. The Court has decided to redetermine the issue of costs before Sackar J, given the outcome of the remitter. But the Court will not yet make an order for costs on the remitter.
This is for three reasons. First, there were many side issues argued on the remitter and the costs of conducting the remitter raised different issues from the hearing. Secondly, the parties need an opportunity to absorb these reasons before putting brief submissions in relation to the cost of the remitter. Thirdly, the costs of the remitter are likely to be considerable given the range of arguments that were fielded.
Mr Kabilafkas put his submission on re-determining the costs before Sackar J concisely thus:
“[t]he plaintiff has been successful and the ordinary rule is that costs follow the event which applies before and after the appeal proceedings in that –
the second defendant contested that the plaintiff was not entitled to a constructive trust at all: Togias v State of New South Wales [2021] NSWSC 1588 at [79]-[81]. Although the Court of Appeal held that the extent of the plaintiff’s interest was less than that pronounced by the primary judge, she nevertheless was successful in having an interest in the Glenwood Property confirmed, in that the Court of Appeal rejected the submission put again on appeal that the plaintiff ought be entitled to nothing: State of New South Wales v Togias (2022) 110 NSWLR 86 at [97]-[98]. The plaintiff therefore remained successful, and an order splitting costs for plaintiffs that are not completely successful remain the exception: Yazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 at [25] and McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306 at [43];”
Mr Kabilafkas also put written submissions in relation to the costs of the remitter. Those written submissions assumed that Ms Togias had been entirely successful in relation to the occupation fee issue, which is not the way that the proceedings have unfolded in this judgment. This is another reason for separating out the cost of the remitter.
In reply TAG submitted that the appropriate costs order for the remitter involved “somewhat complicated considerations”. The Court agrees with that assessment and that is why it has been deferred but TAG’s submission that each party should bear her or its own costs of the remitter is very much in contest. But there is no reason to delay considering any redetermination of the cost orders of Sackar J.
TAG submitted that the claim on which Ms Togias succeeded before Sackar J was that TAG held both the Glenwood property and the Seven Hills property, a commercial property, pursuant to constructive trust on behalf of plaintiff. The consequence of the judgment of the Court of Appeal is that Ms Togias wholly failed with respect to the Seven Hills property. Additionally, the Court of Appeal reduced Ms Togias’ interest in the Glenwood property from 50% as found by Sackar J, to a 25% interest. As a result, the Court of Appeal ordered the plaintiff to pay 50% of the TAG’s costs of the appeal. TAG now submits that this is an appropriate guide to the order for costs that should be made the trial before Sackar J and that TAG should only pay 50% of Ms Togias’ costs.
In reply, Ms Togias rejects the TAG submission that each party should now bear their own costs of the remitter proceedings. But as indicated that this has been deferred.
Ms Togias repeats her submission that submits that costs should follow the event and that any division of costs between issues on which she was successful and on which he failed is the exception and not the rule. Ms Togias says that TAG has not provided any evidence to show that the issue on which Ms Togias was not successful – in relation to the Seven Hills property – occupied a substantially inseparable part of the proceedings and for that reason it would not be appropriate to make an order other than one for costs following the event. She submits that an order which does not compensate her for a substantial part of her costs would be unjust.
In the Court’s view Ms Togias does remain substantially successful. The outcome of these proceedings is that she will still receive not only 25% of the Glenwood property but, as these reasons show, she will receive a substantial payment in her favour in respect of her past outgoings for that property. The Court is not convinced that the issues concerning the Seven Hills property took up as much time as has been indicated by TAG but they did preoccupy the trial and consequently Sackar J’s consideration to a degree.
The overall outcome is less advantageous to Ms Togias by causing her to fail with respect to one property, the Seven Hills property. Given the net outcome in her favour on the charge the adjustment with respect to share of the Glenwood property does not detract greatly from her success with respect to that property.
Several procedural matters now require attention.
First, other related proceedings have been brought by the mortgagee of the Glenwood property and are presently in abeyance. The mortgagee says the mortgage is in default. But on the facts presently known to the Court – which may not be complete – the mortgage was assigned to a new mortgagee and from that assignment date the Court has been told that a higher default rate was charged to the mortgagors. The Court observed during argument that to assist the parties there may need to be an accounting ordered between the current mortgagee and the parties to these proceedings. To accelerate that process the Court adds a notation below – not yet an order – assist that process. If the parties want the matter determined before then, the orders belowground liberty to apply to the duty Judge. Otherwise, application could be made to my Chambers to list the matter upon my return from leave on Monday, 20 October 2025.
Secondly, the Court will need to deal with the costs of the remitter. The parties told the Court at the hearing that Calderbank offers had been made about the costs of the remitter. The Court will provide in directions for the filing of evidence including any Calderbank letters and serving submissions about their effect on the question of costs before the Court determines the costs of the remitter. The parties also need to absorb these reasons for decision to put their submissions on the costs of the remitter.
Thirdly, the Court wishes to confine any contest about the costs of the remitter. This will be achieved in two ways. The parties should confine their costs submissions on the remitter to no more than three pages. The parties will be placed on a Court imposed maximum costs budget for resolving the issue of the costs of the remitter. A cost capping regime will be imposed under UCPR r 42.4 by an order that neither party is able to recover from any other party more than $3,000 for such argument. UCPR r 42.4 operates subject to further order.
Fourthly, despite all the above, if the parties agree that they simply want the Court to now proceed to determine the costs of the remitter on the present material Court will do so and can do so quickly if that will assist the parties. The parties have put written submissions on the remitter which are mostly still applicable. But the Court did not want to inadvertently deny the parties procedural fairness by determining this, in case it was, for example, impacted by the Calderbank letters.
Fifthly, once all costs orders are made though yet assessed, the parties indicated that they wish to facilitate the bidding for the Glenwood property by fixing the quantum of costs early. As suggested during the hearing that can be done through specified gross sum cost orders under Civil Procedure Act 2005 s 98(4)(c) or by the Court or by a single court appointed expert under Uniform Civil Procedure Rules 2005 (UCPR), r 31.46.
For these reasons the Court makes the following orders and directions:
DIRECTS that the parties agree upon a final calculation up to an agreed date of the occupation fees due from the plaintiff to the second defendant for the period of her occupation of the Glenwood property considering the reasons published today.
ORDERS the second defendant to pay 80% of the plaintiff’s cost of the hearing before Sackar J.
RESERVES for further consideration the question of the costs of the remitter proceedings.
DIRECTS the parties to agree upon a timetable of evidence and submissions for provision to the Court of:
(a) any Calderbank letters served in the proceedings; (b) evidence of the plaintiff's costs of these proceedings; and (c) submissions in relation to the final costs are orders in the proceedings and the quantum of those costs orders
(a) the amount the mortgagee claims to be due to it on the mortgage over the Glenwood property, (b) the factual and legal basis for, and the method of calculation of the amount due on the mortgage, and (c) to the extent that default interest is claimed by the mortgagee, the basis for that alleged default and the reason why any offer by the mortgage or to rectify the default has not been accepted.
Representation [1] Typographical error [39] Typographical error
Decision - Typographical error Representation - Typographical error [1] Typographical error [39] Typographical error
Togias
State of New South Wales [2025] NSWSC 937
(1998) 43 NSWLR 695
(1994) 35 NSWLR 206
(1962) 107 CLR 1
(1985) 157 CLR 17
(2022) 110 NSWLR 86
The restriction in Minister of State for the Interior v RT Company Pty Ltd does not apply here. The occupation fee in issue here is merely a set off imposed as a condition upon the grant of relief to Ms Togias of an equitable charge for her contributions to the Glenwood property. It is not a claim for mesne profits at common law. Nor is it even a claim based on Ms Togias ousting her co-tenant.
One other TAG submission should be mentioned at this point. TAG submits that the question whether an occupation fee should be paid, should not remain open for debate and that one should be paid. It submits that since the restraining orders were made at the instance of the NSW Crime Commission on 15 February 2010, Ms Ms Togias who had ceased her relationship with Mr Subatki on 29 January 2010, then a single mother with two children, was effectively forced by financial circumstances to share accommodation with him.
This submission is not persuasive. The evidence overwhelmingly supports the contrary inference that Ms Togias lived in a separate household from Mr Subatki but within the one premises. The idea of living “separately and apart” within the same geographical area is a familiar concept in family law and that is clearly what they were doing. For much of the time since 2010, Ms Togias’ non-exclusive occupation has been shared with the non-exclusive occupation of a co-tenant that she would much prefer never to encounter.
Both parties agreed with Ms Savage’s mathematics. The calculations therefore do not need to be reproduced here. The total CPI increase over the full period is 31.2%. Applying CPI increases (of 31.2% for the whole period) increases the rent by a total differential of $9,410 per annum. This is relatively close to the rental increase of more than $10,000 per annum rental derived by the direct comparison method Ms Savage used based on comparable properties. Ms Savage applied both methodologies, one as a check upon the other.
Ms Savage then applied a 10% discount to the figure of $475,000 producing a figure of $427,500 which she rounded down to $425,000. These figures were not questioned between the parties. The Court has confidence in them as a sound indicator of the market value of renting this property during the period in question.
Ms Togias*’* evidence. The plaintiff’s evidence about the occupation of the Glenwood property from 2010 to 2024 gives useful insight into how hypothetically willing but not anxious parties to a non-exclusive license at will of the Glenwood property in the situation of the plaintiff would view the potential acquisition of such a right of occupation. In the Court’s view, when the layout of this property is considered, it is not a right which would attract much competition.
The approach to this assessment should be objective. The actual history of the plaintiff’s occupation of the Glenwood property would not have been known to such a hypothetical willing but not anxious party in the position of Ms Togias. But that actual history nevertheless gives important insight into the likely assessment that the hypothetical willing but not anxious purchaser of a non-exclusive license at will would make of the Glenwood property. This is because many of the disadvantages and risks of inconvenience or harm that actually materialised for Ms Togias would objectively be foreseeable by such a purchaser.
TAG submits that Mr Subatki living in the property for a period is irrelevant as there is little evidence to explain the arrangement. Mr Subatki has never given evidence of the circumstances even though there was no reason which would have prevented him from giving evidence in support of Ms Togias’ case.
TAG is partly right and partly wrong about this. TAG is partly right because Mr Subatki’s actual circumstances are irrelevant. They can only be taken into account as illustrations of disadvantages that a prospective licensee would be likely to foresee when seeking to pay for occupation of the Glenwood property. TAG is wrong in suggesting that there was a gap in Ms Togias case or some inference should be drawn against her, because she did not call Mr Subatki. The Court wholly accepts her evidence about Mr Subatki.
The relevant evidence is mostly set out in the plaintiff’s affidavit of 11 July 2024. Ms Togias annexes a floor plan of the dwelling of the Glenwood property shows a two-story residence with a ground floor living area. The upstairs area consists entirely of bedrooms and bathrooms.
The floorplan has a master bedroom with an ensuite, a closet and three other bedrooms with one separate bathroom on that floor. Downstairs has a living room and dining room and office kitchen the two-car garage and the back room. A central staircase connects the ground floor with the upstairs area. At the top of the staircase a limited assembly area gives access to the bedrooms.
The plaintiff’s relationship with her de facto husband, Mr Subatki ended on 28 January 2010 when he was arrested. At the time of his arrest the plaintiff slept in the master bedroom and her two daughters slept in two of the other bedrooms. The other unoccupied bedrooms were used for storage.
The other bathroom upstairs had a functional sink but the shower in this bathroom had not worked since 2010. As a result, for some years all the occupants of the house upstairs used the ensuite bathroom to take showers. For the minimal cost of repairing a shower it can be assumed for practical purposes that the non-ensuite shower in the upstairs area would have been made usable were the property licensed out to another non-exclusive licensee.
But a single staircase connects the ground floor with the first floor. The upstairs part of the house presents as quite an intimate living space, where occupants of the four bedrooms would inevitably share a lot of personal space going to and from bedrooms, to and from bathrooms and up and down the common stairs. There was a shower downstairs, but it was away from the bedrooms and a less attractive place to have a shower without inconvenience, although it was separate from the other sleeping spaces.
The photographs show that the shared stairway access from the ground floor to the first floor is a reasonably close area where each tenant will would frequently encounter the other in ordinary daily living.
There are common areas on the ground floor in some places where a person can get away for private work or recreation, such as the office and the dining room. But living in this house would necessarily involves sharing the one kitchen, sharing the one laundry, sharing the garage and sharing the downstairs living and dining spaces and unpredictably encountering with the other cotenant and the other cotenant’s guests every hour of every day. It would not be possible for example for a co-tenant in the position of Ms Togias to invite guests to the home either without consulting the other cotenant, or without taking the risk that the other cotenant might want to do something that might be disruptive of entertainment at the premises.
It can be inferred directly from these objective facts that any market for a non-exclusive license of the Glenwood property would be likely to exclude anyone who valued privacy, anyone who did not want to interact in their personal living space unpredictably at all hours of the day and night with guests of a co-tenant who may be strangers, and anyone who did not have an adaptable and tolerant personality to deal with the security issues that can arise in a share house arrangement.
The actual history of the Glenwood property cannot generally be considered when assessing the question objectively but some of the risks that would have presented themselves to a hypothetical co-tenant in Ms Togias’ position bear emphasis. This was not a place where most people would want to sleep at night in the same living space as someone with a criminal record such as that of Mr Subatki. What happened when Mr Subatki came out of prison illustrates well the risks that a person interested in occupying this property would have to weigh. Ms Togias formed another relationship while Mr Subatki was incarcerated. Not long after he was released from prison in 2014 Mr Subatki was involved in a violent incident with the plaintiff’s partner.
But apart from that violence, when Mr Subatki returned home in 2014 relations between him and the plaintiff were hostile and stressful for her. Both had formed other relationships. The household tension would be a predictable result in these premises for anyone who did not get on very well with the people in the household. Mr Subatki decided that he wanted to occupy the master bedroom upstairs with his partner. The plaintiff moved into one of the other bedrooms with her partner. This illustrates that anyone anticipating acquiring a non-exclusive license to this property would need to be ready to be flexible in the most intimate part of their lives. Eventually the plaintiff’s relationship with her partner broke up in part because of tensions described here.
A damaging fire in the kitchen of the Glenwood property, recurrent plumbing problems since 2010 and an accident to the garage door in 2018, also provide practical examples of what could go wrong for anyone seeking to license this property is a cotenant. Leaving aside the specifics, and assuming against the plaintiff that the non-exclusive licence to the property was not to be offered with those defects, nevertheless any person acquiring such a licence would have to consider the risk of obstacles to getting repairs done to keep the household liveable. All repairs would require the practical cooperation of the fellow licensee and the failure to carry them out would diminish the market value of the right of occupation on offer. The evidence of the builder, Mr Tony Grubesic, from Alpha Building Services, who provided a report (attached to the plaintiff’s affidavit of 27 February 2023) as to various repairs that were needed to the Glenwood property, repairs to the roof, repairs to water and fire damaged areas and repairs to the front balcony to make it waterproof, all add to the un-attractiveness of the Glenwood property as a licence proposition.
The plaintiff has had other family members come to stay to assist her from time to time when she needed support. This illustrates another risk that willing but not anxious acquiring this license would have to contemplate: the possibility of the co-licensee deciding to take others into the household. The lack of control over that would be another factor depressing the market for this property.
There would have been major drawbacks in attempting to offer a non-exclusive licence over the Glenwood property. Apart from its non-exclusivity it is also to be remembered that it is a licence at will. Even the student market might be deterred by the lack of security of tenure associated with a licence at will. Such insecurity of tenure would increase the prospective co-tenant’s risk of tension and vulnerability in this household.
On the other hand, Ms Togias and her children together have physically occupied more of the area (measured in square metres) of the Glenwood property than Mr Subatki ever did. It might therefore be suggested that they have received a benefit which should be measured by more than half market rent of the Glenwood property. But this should not matter as co-tenants are each entitled to possession of the whole of the property. The various parts of the property that they in fact used are irrelevant to valuing their rights of occupation.
It can be inferred objectively that a prospective hypothetical co-tenant of the Glenwood property in the position of the plaintiff would be likely to entertain serious doubts about bidding for a non-exclusive license at will of the property. This applies for the whole period. Mr Subatki was in prison for the first four years of the period in question and therefore some of these factors were consequently less pressing and this must be considered in any overall assessment. But even in relation to this early period there was always foreseeable risk that Mr Subatki could be released or that he could give permission for a friend or relative to stay as his guest while he was temporarily absent.
These are major disadvantages. The occupation being offered is a long way from the security of a lease. Using market rent of an actual letting of the property as the standard would be just as inequitable here as Beazley JA found it would have been in Biviano. Ms Savage’s objective evidence of market rental is an important anchor point in the decision-making. But there should be a substantial discount from market rent. That discount should be of a substantial kind. Just as Beazley JA inferred in Biviano, here especially for the reasons discussed above, a licence to occupy Glenwood property would probably “not even attract 50 per cent of the market rental”.
Doing the best the Court can on the available materials and considering the above matters, the Court infers that a non-exclusive license of the Glenwood property terminable at will would be worth no more than 25% of the market rent for the property for the period.
TAG submitted that the occupation fee to be set off against Ms Togias’ claim should not be a nominal amount she should pay an occupation fee of a realistic figure based on Ms Savage’s opinions. That submission is accepted. This is not a nominal sum.
Finally, it is noted that the plaintiff undertook on 21 May 2021 as the price of an injunction to restrain the sale of the Glenwood property that she would “to the extent that her claim failed, pay [an] occupation fee to be determined by the Court”. As was noted in my second judgment (at [34]) that undertaking put it beyond dispute that an occupation fee needed to be paid after that date. But the undertaking did not fix the quantum of the occupation fee. The nature of the plaintiff’s occupation of the property did not change after that date and it is therefore appropriate for the occupation fee to be fixed at the same rate both before and after 21 May 2021.
It is doubtful that the plaintiff has “failed” in the sense meant by the undertaking but that is probably immaterial. The Court has determined an occupation fee which is 25% of the rental value of the property. That is payable as a condition of the grant of relief to her of an equitable charge. Any call upon the undertaking would produce the same recovery.
Ms Togias submitted that she should not have to pay an occupation fee. She pointed out that she not making a claim for interest even though the outgoings on the Glenwood property for which she is being compensated go back some 15 years. She submits that any occupation fee that might be payable on the evidence is more than offset by the interest that she is forgoing on the payments that she has made.
In the Court’s view, this consideration does not neutralise Ms Togias’ obligation to pay an occupation fee. And it is difficult to quantify in the absence of more precise calculations. But this works both ways. TAG is not claiming interest on the occupation fee it claims. And there is a danger of double counting if weight is given to this factor. The Court has not placed any weight on this consideration in fixing the occupation fee.
In these circumstances the Court will adjust the orders before Sackar J so that the TAG will be ordered to pay 80% of Ms Togias’ costs of the proceedings before Sackar J. As indicated the cost of the remitter will be considered separately.
The Court will make a Civil Procedure Act, s 98(4)(c) order itself provided the process will be efficient, cooperative and streamlined between these parties, who have fought about many side issues. Otherwise, the Court will appoint a single expert to determine costs under UCPR, r 31.46. That would permit the parties to have certainty as to their total costs to assist them in negotiating for or bidding for the Glenwood property. Both parties thought that a specified gross sum cost order was likely to be useful in the circumstances and the Court agrees.
Once the Court determines the costs of the remitter the parties will be directed to file affidavits of actual costs incurred in the proceedings to date. The Court will also make a UCPR, r 42.4 order on any contest about a specified gross sum order instead of costs, also because that will give the parties greater certainty about the overall cost burden.