William Todd & Another v Adam Todd & Another, Adam Todd & Another v Eddie Temurcuoglu OBO Office of the Sheriff of New South Wales & 3 Others

Mr. William Todd gave evidence on affirmation on behalf of the applicants to the following effect.

The applicants are the parents of the respondent Mr. Adam Todd. In or about October 1998, they decided to purchase a property for their son and his wife to live in as their son did not have the financial capacity to do so for himself. At about the time of purchase of the property a written "agreement" was prepared by the applicant and read aloud to the respondent. The son was to pay rent in return for living in the property and, "as an enticement" for him to pay the rent on a regular basis, it was agreed that the rent payments were to be considered as part of the purchase price. Interest was to be charged on late rent payments.

In addition to that agreement, the applicant asked his son to act as his agent in managing the property by keeping a computerised record of all expenses incurred in the maintenance of the property.

The applicant did not deny that the original "agreement" was not signed by the parties, the date of the alleged consent to the terms of the agreement was unknown and indeed a copy of it was no longer available. Another document, created on 5 January 2004, over five years later, was tendered in evidence and was relied upon by the applicant as being "similar" to the original agreement.

The applicant acknowledged that he had on six or seven previous occasions entered into residential tenancy agreements. Two of those occasions had been with family members and no written agreement in a standard form complying with the Residential Tenancies Act 1987 had been executed. On all other occasions, standard leases had been prepared on the applicant's behalf by a real estate agent.

The applicant went into some detail to explain what he believed the agreement to be by reference to the document dated 5 January 2004. The applicant's intention was to create a tenancy agreement in which his son and daughter in law would pay rent at the rate of $880 per month plus all costs such as council rates, water rates and maintenance. The applicant intended to include the rent and costs as income in his tax returns and to claim a tax deduction for the costs incurred.

Some of the rent and other expenses were paid by the respondents for approximately one year. They took up occupation of the premises on 15 December 1998 and made irregular payments until 8 January 2000, which was the date the last payment was made. No action was taken to terminate the agreement or to recover any sum from the respondent because there were three grandchildren involved and the respondents were living in close proximity to the applicants. The respondents did not at any time deny the existence of a residential tenancy agreement even when in receipt of correspondence from the applicants asserting the existence of such an agreement. The respondents did pay part of the insurance on the property and did pay council rates up to June 2003, but then made no further payments.

The following documents were filed by the applicants and relied upon: · Photographs of the subject property taken in 1998 and in 2004, · "Notice to Vacate" addressed to the respondents and dated 30 July 2004, · List of 29 items of damage as at 1 January 2004, · Copy of standard form Termination Notice addressed to the respondents and dated 30 July 2004, · Letter from Mrs G. Todd to the applicants dated 14 July 2004, · Schedule of council rates owing as at 6 July 2004, · Letter from respondent to applicants dated 30 June 2004 (inter alia denying existence of a residential tenancy agreement), · Letter from applicant to respondents dated 24 June 2004 re. white ant inspection, · Letter from applicants to respondents dated 17 February 2004 requesting payment of council rates owing, · Letter from Mrs G. Todd to the respondents dated 4 February 2004 purporting to increase rent and referring to pre-existing agreement with attached list of damage to be rectified by the respondents, · Computer print out dated 31 December 2003, being schedule of rent arrears, interest owing, council rates unpaid in total amount of $54,749.13, · Letter from applicant to respondents re. white ants dated 31 January 2004, · Letter from applicant to respondents dated 28 January re. propsed legal proceedings for rent arrears, · Letter from applicant to respondent re. unpaid council rates dated 26 January 2004, · Record of phone conversation on 22 September 2003 re. pest inspection, · Computerised record of payments received and amounts owing showing total amount owing as at 1 June 2005 being $78,577.16, · First page of 3 page letter from respondent to applicant dated 5 May 2000, · Computer record indicating last payment of $500 made on 8 January 2000, · Copy of the "agreement" relied upon by the applicants and created on 5 January 2004, · Statement of liquidated claim made in Local Court by respondents as plaintiffs and applicants as defendants, dated 11 August 2004 seeking orders in the sum of $220,000 and alleging trespass (unstamped), · Copy of council rates notice, · Notice from council re. pool safety & health dated 6 September 2004, · Letter from Registrar of Local Court to applicant re. Court's jurisdictional limit and "false claim", · Agreement dated 28 February 1991 for return of gift of $10,000 by respondent to applicants. RESPONDENT'S EVIDENCE

The respondent Mr. Adam Todd, gave relevant evidence on affirmation to the following effect.

The respondent relied on s.6(1)(a) of the Residential Tenancies Act 1987 which provides; 6(1) This Act does not apply to a residential tenancy agreement: (a) if the tenant is a party to an agreement made in good faith for sale or purchase of the residential premises.

Furthermore, the respondent stated that the "agreement" upon which the applicants relied was created in January 2004 and a copy of that had never been provided to him until the commencement of these proceedings.

There had taken place a discussion prior to taking up occupancy of the premises. Mrs. Suzanne Todd was not present. The respondent's recollection of the discussion and the consequent agreement was that it was in relation to his inheritance. He could assist his father by paying off an amount up to the value in 1998 of the property, but those payments were voluntary. In fact, the agreement was for a purchase of the property at its 1998 value and the payments, properly characterised, were repayments off the loan and not rent.

The monthly figure of $880.00 was beyond their means at the time and there was no intention of the respondent to commit to that amount on a regular basis. They already had a commitment of $150.00 per month on a mortgage and could not afford more. It was the voluntary nature of the payment that made the agreement acceptable.

The applicants had entered into the agreement at least in part because they lived in close proximity and they would have access to the grandchildren.

At the time of the conversation the respondent had been under a great deal of stress due to the kidnapping of his child, abuse by neighbours and intervention by DOCS.

Initially the respondent had paid the rates in the expectation and belief that the property was to be theirs.

No rent receipts had ever been issued by the applicants and the first time the respondents had become aware that the payments were considered by the applicants to be "rent" was in a conversation with the applicant referred to in the letter dated 5 May 2000 tendered by the applicants.

A document prepared by the applicant (filed by respondents, # 040005) was relied upon by the respondent to demonstrate the attitude of the applicant towards the agreement between the parties. That document states in part:

"Adam is not paying rent so is not paying off house" "Adam is still required to pay off the house" "If Adam does not pay off the house this amount will be balanced by a cash variation in Gisella's will …."

The document demonstrates that the applicants were considering the arrangement as one of estate planning.

The respondent filed a bundle of documents comprising some 53 pages. Many of the documents were identical with those relied on by the applicants and some were extracts from the Residential Tenancies Act 1987. Others related to a broader dispute between the parties that was not relevant to the issue of jurisdiction.

Pursuant to the provisions of the Residential Tenancies Act 1987, s.5, the Act applies to residential tenancy agreements made after the commencement of the section. The Tribunal obtains its jurisdiction to hear and determine matters in the Tenancy Division pursuant to the provisions of the Consumer, Trader and Tenancy Tribunal Act 2001, s.21 and Schedule 1 to that Act. In order for the Tribunal to have jurisdiction to hear this matter, there must therefore be a "residential tenancy agreement" in place between the parties to the dispute as that term is defined under the Residential Tenancies Act 1987, s.3.

The definition is in the following terms; Residential tenancy agreement means any agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence: (a) whether or not the right is a right of exclusive occupation, (b) whether the agreement is express or implied, and (c) whether the agreement is oral or in writing, or partly oral and partly in writing, and includes such agreement granting the right to occupy residential premises together with the letting of goods.

It is apparent from the definition that the possibility of an oral tenancy agreement must also be considered even when a written agreement does not exist.

In this case it is not disputed that there was never a written residential tenancy agreement complying with the Residential Tenancies Act 1987 entered into by the parties. What is alleged by the applicants is that an oral tenancy agreement was in place in respect of the subject premises. Mr. William Todd relied on a number of surrounding circumstances and documents to corroborate his belief that such an agreement was in place. His relevant evidence on this point can be summarised as follows: · a recollection of the agreement made orally with his son and his own understanding of that agreement, · a document produced on 5 January 2004 and claimed to be similar to the original document setting out their agreement, · the behaviour of the respondents in paying rent (plus other amounts) for a period of time, · the fact that the respondents did not deny the existence of a residential tenancy agreement when faced with requests to pay outstanding rent.

The respondent on the other hand confirmed that there was no written residential tenancy agreement and further claimed that the "agreement", such as it was, that gave him the right to occupy the subject premises, was not a residential tenancy agreement at all, but rather an agreement that had more to do with inheritance and estate and taxation planning.

Whatever the agreement that was made between Mr. William Todd and his son, Mr. Adam Todd, in or about October 1998, is now far from clear and probably was far from clear on the day it was made. The document relied upon by Mr. William Todd as being "similar" to the original agreement is flawed in many ways. There is no certainty that it is similar to the original and, if so, how it differs from it. But assuming it to be identical with the original document, it is still flawed as a residential tenancy agreement. · It does not identify the premises adequately, does not set out the term of the lease, does not provide for any of the standard clauses such as access by the landlord, security, pets, pool, etc…. · There is no evidence to show that Mr. Adam Todd agreed to the terms as set out in the original document. · The document itself does not clearly establish what was intended to be achieved. On the one hand it refers to "rent" payable, but also requires the respondent to pay all outgoings including maintenance, council rates and insurance, all items that would normally be the responsibility of the landlord. · It uses words such as; "You are to consider the house as your own. You can make all decisions as to what you want. We will not require you to do what we wish. If you wish to sell the house or to rent it, you may make these decisions and do all the work and we will accept with this"

All of these statements are indicative of an intention to create some ownership in the house by the respondent.

On careful consideration of that document and even after having it explained to me by Mr. William Todd, I am not satisfied that the document (if it is an accurate copy of the original, of which I am not convinced) corroborates in any way the assertion by Mr. William Todd that he in fact entered into a residential tenancy agreement with his son.

Furthermore, the other matters relied on by the applicants to establish that a residential tenancy agreement was in place are not persuasive. The fact that the respondent did make some payments plus insurance, rates, etc. for a period of time does demonstrate a level of goodwill at that time and a willingness and indeed preference, to make some payments that would assist in paying off the loan. The mere fact of giving the name "rent" to such payments in the records kept by the applicant does not influence the nature of the agreement itself.

The correspondence mentioning "rent arrears" did not commence right away. The first discussion specifically mentioning rent arrears appears to have been in early 2000. Subsequent correspondence was exchanged between the parties including a letter from the respondents strongly disputing the existence of a residential tenancy agreement. Hence one cannot assume the respondents acquiesced in the existence of a residential tenancy agreement.

The "rent", if it was rent, was in arrears in excess of $40,000 by mid 2003 yet no action was taken by the "landlord" to correct the situation. That is not indicative of a landlord/tenant relationship.

The respondent's argument seemed at times disingenuous. However, in view of the extreme anxiety and stress in his life at the time I accept that Mr. Adam Todd's recollection of the conversation with his father may not have been as clear as one would expect. In any event Mr. A Todd's behaviour subsequent to taking up occupancy is certainly consistent with his belief that he was making voluntary payments to assist with the loan and that the intention was to permanently transfer the house to his ownership in due course and the "arrangement" had more to do with estate and tax planning than it did with tenancy agreements.

The document relied upon by Mr. Adam Todd and written by Mr. William Todd is also indicative of the way in which the agreement was regarded by Mr. William Todd, viz; "Adam is not paying rent so is not paying off the house" "Adam is still required to pay off the house" "If Adam does not pay off all the house this amount will be balanced by a cash variation in Gisella's will"

The above discussion is strong argument in support of the principle enunciated by the Tribunal in Briscoe v Scott (RTT 94/007753) and by the Supreme Court in Dube v Dube (S.C. 25 February 1991, unreported) that family arrangements are not intended to create legally binding tenancy agreements and that the presumption at law is that domestic arrangements are not intended to be legally binding. That presumption can, of course, be rebutted by the evidence.

However, I am satisfied it is impossible at this stage to say what the parties were agreeing to. There was no "meeting of minds" in a contractual sense. Each thought the arrangement was about something else. The documents and surrounding circumstances do not clarify that confusion.

In this case I am simply not satisfied that the applicants have met their burden of proof that a residential tenancy agreement as defined in the Residential Tenancies Act 1987 was in place and consequently the Tribunal lacks the jurisdiction to hear and determine the dispute.

As I have reached this conclusion, it is not necessary for me to consider the argument raised by the respondent based on s.6(1)(a) of the Residential Tenancies Act 1987.

(signed) J. Smith Member Consumer Trader & Tenancy Tribunal

27 January 2005 27 On 10 March 2005 the plaintiffs signed and sent to the defendants a Notice of Termination and Notice to Quit in these terms - Notice of Termination and Notice to Quit To: Adam Todd Suzanne Todd WHEREAS A). You moved in to live in the property owned by us at 52 Rockley Avenue Baulkham Hills on about 15 December 1998 under an oral agreement we made with you on 23 October 1998. B). In the agreement you agreed to pay rent to us of $880.00 per month, to be increased in the future to remain a commercial rent. C). You also agreed to pay all council rates for the property. D). You also agreed to pay all necessary repairs to the property. E). And you agreed to do many other things. F). You made some payments of rent until about January 2000, but did not pay all of the rent due up to that time and have paid no rent since that time. G). You have not paid council rates for the property since 2003. H). You have not paid for all necessary repairs to the property in many respects which we have previously notified to you. I). By refusing to pay rent you have repudiated the agreement. J). By refusing to pay council rates you have repudiated the agreement. K). By refusing to pay for all necessary repairs you have repudiated the agreement. L). We now wish to obtain vacant possession of the property and have decided to accept your repudiations of the agreement and to terminate it. WE HEREBY GIVE YOU NOTICE 1. We accept each of your repudiations of the agreement and hereby terminate the agreement. 2. We require you to leave the property and give vacant possession of it to us by 15 April 2005. Dated: 10 March 2005 (Signed) (Signed) ………………… …………………… William Todd Gisella Todd

The issues for determination 28 The plaintiffs' case is clear from the Statement of Claim. However, it has been difficult to identify from the defendants' pleadings and the affidavits on which they rely the issues that might arise for determination. The principal reason for this difficulty is that the defendants have represented themselves during the preparation and conduct of the action. The pleadings on which they rely have not been prepared by a legal practitioner. They are prolix, convoluted, occasionally internally consistent, argumentative and hard to understand. The affidavits are defective in many respects, too often containing submissions and irrelevant material. At the commencement of the hearing senior counsel for the plaintiff offered a written summary of the issues that I was to be asked to determine. I do not understand the defendants to disagree. These are the issues enumerated. I have set them out in my own words. 1. Was there a lease to the defendants; have the plaintiffs established a right to possession? 2. If the Tribunal judgment estops the plaintiffs from asserting that there was a lease, should the judgment be set aside? 3. If there was an agreement for a lease was it vitiated by the unconscionable conduct of the plaintiffs at the time that it was made? 4. If there was an agreement for a lease did the plaintiffs lose their rights by their repudiation on or about 5 May 2000? Was their claim barred by s32 Limitation Act ? 5. Irrespective of whether there was a lease, have the plaintiffs established a right to possession? 6. Did the plaintiffs agree to purchase the property in trust for the first defendant? Should the plaintiffs be required to convey the property to the first defendant? What are the consequences of the absence of a deed or any writing: Conveyancing Act s23B, s23C, s54A? 7. Is the first defendant entitled to relief under the Contracts Review Act from his obligation to pay any part of the purchase price? Is the first defendant entitled to relief under the Frustrated Contracts Act ? 8. Was any agreement for the sale of the property repudiated by defendants? 9. Was the parties' agreement void for uncertainty? 10. Is the second defendant entitled to damages consequent upon her sale of her house at Oakdale on the understanding that any monies she contributed to the outgoings on the property (at Baulkham Hills) would give her an equitable interest therein? 11. Are the defendants entitled to damages for trespass on certain occasions?

Was there a tenancy; are the plaintiffs estopped from asserting the existence of a tenancy? 29 It is convenient to deal first with the question whether there was a tenancy. If the judgment of the Tribunal estops the plaintiffs from so asserting, their claim on that ground will fail. The defendants submit that the plaintiffs are so estopped. The plaintiffs respond by asserting that there is no estoppel on this issue and alternatively that the findings of the Tribunal ought to be set aside. Ultimately the plaintiffs' attitude is that whether or not there was a relationship of landlord and tenant, whatever entitlement the defendants had to occupy the property ceased when the Notice to Vacate dated 30 July 2004 became effective, namely on 1 September 2004. It becomes necessary to decide first whether the plaintiffs are estopped from asserting a tenancy. 30 A final judgment by a competent tribunal creates an issue estoppel in that it forever binds the parties and all who claim through them in respect of any issue of fact or law which was legally indispensable to that decision: Blair v Curran (1939) 62 CLR 464 at 531 per Dixon J; Jackson v Goldsmith (1950) 81 CLR 446 at 466; Queensland Trustees Ltd v Cmr of Stamp Duties (Qld) (1956) 96 CLR 131; Ramsay v Pigram (1968) 118 CLR 271 at 276; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597; Egri v DRG Australia Ltd (1988) 19 NSWLR 600 and Heid v Connell Investments Pty Ltd (1989) 16 NSWLR 629. The parties are precluded in subsequent proceedings from asserting as against any other parties to the judgment the contrary of any issue fundamental to the judgment: Hoysted v FCT (1925) 37 ALR 290; Blair v Curran; Jackson v Goldsmith; Azzopardi v Bois [1968] VR 183 at 185. In matters of fact, issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action: Blair v Curran. 31 The Tribunal is constituted by s5(1) Consumer, Trader and Tenancy Tribunal Act 2001. By subs (2) the Tribunal may exercise such functions as are conferred on it by any Act. As to the general jurisdiction of the Tribunal see s21. By Schedule 1 the Tenancy Division of the Tribunal is constituted and empowered to exercise jurisdiction in respect of matters arising under the Residential Tenancies Act 1987. Section 3 Residential Tenancies Act incorporates these definitions - " tenancy " means the right to occupy residential premises under a residential tenancy agreement.

" residential premises ": (a) means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence, and (b) includes a moveable dwelling or the site on which a moveable dwelling is situated or intended to be situated (or both the moveable dwelling and the site), if the moveable dwelling is used or intended to be used as a place of residence.

" residential tenancy agreement " means any agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence: (a) whether or not the right is a right of exclusive occupation,

(b) whether the agreement is express or implied, and

(c) whether the agreement is oral or in writing, or partly oral and partly in writing,

and includes such an agreement granting the right to occupy residential premises together with the letting of goods. 32 It was essential to the jurisdiction the plaintiffs invoked in the Tribunal that there existed a residential tenancy agreement between them and the defendants in this action. As appears from the reasons of the Tribunal, the residential premises concerned in the application to the Tribunal was the property with which the present action is concerned and the circumstances said to give rise to the residential tenancy agreement were the same. Accordingly, the issue which the Tribunal had to determine was identical to the issue this Court is asked to determine. It follows in my opinion that whilever the findings and orders of the Tribunal stand the plaintiffs are estopped from asserting in this Court that at the relevant time there existed between them and the defendants the relationship of landlord and tenant of the property. 33 By s67 Consumer, Trader and Tenancy Tribunal Act 2001 an appeal lies to this Court at the behest of a party who is dissatisfied with a decision of the Tribunal on a question of law. By subs (8) a reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. The plaintiffs appeal against the Tribunal's finding of the want of jurisdiction but advance no reason why the Tribunal should be taken to have erred in coming to its conclusion. The Tribunal's conclusion that it lacked jurisdiction was founded on its finding that there was no residential tenancy agreement. As appears from the reasons of the Tribunal, there was evidence on which the Tribunal was entitled to come to that conclusion. It was not asserted by the plaintiffs that the Tribunal misunderstood any of the evidence put before it. It was not asserted that the Tribunal took into account any matter it was not entitled to take into account or that it failed to take into account any matter that it had to take into account. It was not submitted that the Tribunal misunderstood or misapplied the applicable law. To my mind, there is nothing on the face of the reasons of the Tribunal to lead to the conclusion that the Tribunal erred in law. Accordingly, it seems to me, there is no cause for disturbing the findings and order of the Tribunal and the appeal against them should be dismissed. 34 Accordingly, the plaintiffs must fail insofar as they rely on a lease. The first and second issues are determined in favour of the defendants. It becomes unnecessary to determine the third and fourth issues. 35 The operation of the estoppel is limited to the ultimate facts which form the ingredients of the cause of action: Blair v Curran; Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 at 93. There is only one such fact, namely that no residential tenancy agreement existed between the same parties over the same property at the same time. As to any other issue arising out of the arrangement it is open to the parties to litigate in this Court the facts and their consequences, even though the Tribunal might have expressed an opinion or might have made findings about them.

What was the nature of the arrangement made between the plaintiffs and the defendants? 36 The answers to all the remaining questions depend upon a proper characterisation of the arrangement made between the plaintiffs and the defendants at and immediately before the defendants entered into possession of the property. Some general statements may be made. The plaintiffs were investors who owned several parcels of land suitable for domestic letting. All except two of them were let by ordinary written leases prepared by real estate agents. The two exceptions comprised the property and a house premises occupied by their daughter, the first defendant's sister. Plainly, they intended to treat their children differently from the strangers who occupied their other premises. As parents of the first defendant and parents-in-law of the second defendant and grandparents of their children the plaintiffs had a special interest in helping them find suitable accommodation, well removed from Oakdale. The defendants were unable to finance a move, at least to premises to having advantages like those offered by the property. The plaintiffs had helped the first defendant financially at earlier times and he had failed in his obligations to repay borrowed monies. They believed that any undertaking he made to pay money in the future might not turn out to be reliable. 37 The plaintiffs exchanged contracts on 20 October 1998. Although it was their settled intention to make the property available to the defendants to live in, they obviously had no intention of making a gift of it. They completed the purchase in their own names. They did not invite the defendants to become purchasers or to undertake any obligation to the vendor or the bank. 38 Both plaintiffs and both defendants were present at the meeting at the plaintiffs' house on 23 October 1998. 39 The evidence of the first plaintiff about what was said at the meeting is as follows. He had with him a document and read from it points that it contained. As he spoke there was this conversation - First plaintiff : I am going to read to you a document regarding the conditions that all three of us must agree to before you move into the house. If you have any problems with any of these, let me know now and we will sort them out. All rent may be considered a payment towards the ultimate purchase of the house at Bill and Gisella's discretion. We plan at this stage that it will stay in our names. If you make a fortune early, you may choose to buy it one way or another. If you decide you want to buy it at some stage, we will work out a new agreement as to what will happen at that time. The aim is to make the deal as tax and investment efficient as possible. Tax-wise, all costs are tax deductible if a commercial rent is charged. If a nominal rent is charged, only costs to that amount are allowable, that is, no tax advantage can be gained. You realise this money is all borrowed, so it is most important that you meet all the rent payments. I will talk about this further down. You are to consider the house as your own. You can make all decisions as to what you do. We will not require you to do what we wish. However, we may give you our advice which you will listen to, but may not choose to follow. So you may decide to make some changes in the future, you may decide you want to move on or want to move on to something bigger, or you want to make some improvements to the house. First defendant : Does that mean that we can add a room or a second storey because I will need more office space. First plaintiff : If you want to make any improvements, just ask us and we will probably be happy to go along with what you would like to do. If you want to take the pool out so that the dogs can have more room, I would certainly agree to that, as I consider a pool is more a liability than an advantage. Do you accept this? First defendant : That sounds good. First Plaintiff : A simple statement of the arrangement will be provided in the future. I will write up what we agreed to and get a copy to you before you move in. You will pay all costs, Council rates, water rates, repairs, etc. What this means is that you will pay all the bills and save me the work. These amounts are actually part of the rent and I can then claim these amounts back as a tax deduction. You will in effect be acting as our agent and this will be an advantage to you as it will lower your effective rent. Are you happy to do this? First defendant : I can do that. First plaintiff : You will in addition pay rent at this date of $880.00 monthly plus any other amounts which may be needed to equal a commercial rent. $310.00 less the usual agent's costs. I have spoken to several real estate agents and the reasonable commercial rent will be about $310.00 a week. So if we take off the usual expenses involved in a rented property, an additional amount of rent of $220.00 per week will equal a commercial rent for tax purposes. This figure will have to be adjusted each year so that the rent maintains a commercial rate. It is just a little more than you are currently paying to the Bank. So will you be able to meet this amount without any problems. Second defendant : Yes, we will be able to meet that without too much trouble. First plaintiff : You will keep accurate records of every cent spent on the house. This will include phone calls, car costs, postage, etc. regarding the house, purchases, repairs, paying bills, etc. You will give me a full copy of these expenses every six months or yearly. All receipts will be in our name. We need these records for our taxation records as because of the interest payments, the property will be negatively geared for quite some years. These payments in effect help pay the interest on the loan. Because we have borrowed a 100% of the money initially, the interest payments will be much more than the rent we will be getting. Any late payments of rent you will be charged at the current St George Bank interest rate as that is where we borrowed the money. This may be varied by mutual agreement at any time. A form has been provided. Better still if you keep it on Excel, this will make things easier for me. If you wish to sell the house or rent, you may make these decisions and do all the work and we will be happy with this. As you know we do not like selling what we have bought but if you decide to go to America or move interstate, we will consider whether to sell the house to buy another, but you will have to meet all the costs and do all the work. We will work out a similar agreement or we could rent the house and some of the income could help you meet your costs elsewhere. When you sell Suzanne's house, any lump sum you provide to us will one, help us to reduce our loan or pay the interest and two, be considered as a payment towards the purchase of the house. Second defendant : The Bank has made a mess of our direct debit payments, so we have less money than we thought. There will be no money left over to give to you. First defendant : I am in the process of confronting the Bank and I am going to …………………[I cannot recall what else Adam said here] First plaintiff : Ok then we will forget about that option. Do we all understand and is everybody happy with this condition. First and second defendants : Yes. First plaintiff : Gisella, are you happy with all of that. Second plaintiff : Yes. First plaintiff : I'll prepare a written document of what is being agreed here and the changes and provide you with a copy shortly.

40 The first plaintiff exhibited to his affidavit a copy of the document from which he had read. It was obviously printed from an electronic record. I assume that one copy was made for the meeting of 23 October 1998 and another for exhibition in this Court. I shall set out the full text of it. It seems to be the document referred to in the Tribunal's reasons. C:\1data\1family\bhilcond.doc 1. Bhill All rent MAY be considered as a payment towards the ultimate purchase of the unit. At B & G's discretion. We plan at this date that it will stay in our names. If you make your fortune early you may choose to buy it from us in one way or another. The aim is to make the deal as tax and investment efficient as possible. Tax wise all costs are tax deductible if a commercial rent is charged. If a nominal rent is charged only costs to that amount are allowed i.e. no tax advantage can be gained. You are to consider the house as your own. You can make all decisions as to what you do. We will not require you to do what we wish. However, we may give you our advice which you WILL listen to it but may not choose to follow. A simple statement of the arrangement will be provided in the future. You will pay all costs. Council rates, Water rates, Repairs etc. You will in addition pay rent at this date $880 monthly plus any other amounts which may be needed to equal a commercial rent. ($310 - usual agents costs) You will keep accurate records of every cent spent on the house. This will include phone calls, car costs, postage etc. re the house, purchases, repairs, paying bills etc.. You will give me a full copy of these expenses every 6 months or yearly. All receipts to be in our name. These payments in effect pay the interest on the loan. This may be varied by mutual agreement at any time. A form has been provided. Better still if you keep it on XL this would make things easier for me. If you wish to sell the house or rent it you may make these decisions and do all the work and we will be happy with this. When you sell Suzanne's house any lump sum you provide to us will 1. Help up to reduce our loan (or pay the interest) 2. Be considered as a payment towards the purchase of the house. Will (Codicil) + agreement.

41 In an affidavit of 6 June 2005 the first defendant affirmed that he had had a private conversation with the first plaintiff at the plaintiffs' house in October 1998, and the inference is that it was on the occasion about which the first plaintiff had given evidence. He said that the second plaintiff and the second defendant were in the house at the time but not present during the conversation. There was this evidence - 42) During the discussion the first plaintiff told me another property at Kellyville had been purchased in case we were not able to pay the purchase price of the Baulkham Hills Property before Testate. This would balance the Estate in fairness between my sister and myself. 43) The first plaintiff also told me that the property for the time being would remain in the plaintiff's name. I asked if this was in case my wife and I were to divorce, she would not gain title to the asset. 44) He replied this was a possibility. 45) He also said that they had thought long and hard about this situation knowing that I was bad with money and would probably not be able to pay off the purchase price. That he did not expect me to meet the payments, which was why the third property had been purchased. That this was not give more to one child over the other. 46) I said I understood and felt this was a fair arrangement.

42 Having referred to arrangements between the plaintiffs and his sister the first defendant continued - 48) I was also told that any money I paid to them I might be able to use as funds for a bigger house or other properties in the future. To consider it as a savings fund. 49) After the discussion with my father, that caused me to believe and I continue to believe, that I was to own the property, we went to the kitchen. 50) In the kitchen the Plaintiffs and the Defendants briefly discussed the arrangement. That the property would be purchased, kept in their name and we would live in it and it would be our home. We could sell it, rent it, renovate it, extend it, or anything else we wished and did not need to seek their permission first. Provided we paid all the costs for such activities. 51) We liked the sound of this arrangement, and the potential long term savings plan was something we felt was beneficial to our future. 52) At no time did the Plaintiffs read to us from a document and at each point say "Do you understand this." 53) I am the kind of person who likes to ensure documents are kept and understood. Even when dealing with DoCS and the Police, I insisted that all communications be in writing and confirmed by facsimile transmission. I have followed this procedure with most business activities throughout my life. 54) We have a signed agreement dated early October for loans to the value of some $6000, to our business, between the Plaintiffs and the Defendants. 55) I would have expected and required nothing less on an agreement for property, with the exception that all parties were inherently clear that the property was to be ours, without limitations and there were no caveats. 56) Had the Plaintiffs had a document, even a draft document, especially of the nature to which the Plaintiff claims in his Annexures "A" and "B", I would have insisted on a copy being provided as a basis for further discussion. 43 The reference to "Annexure A" is to the record I have reproduced. I shall shortly refer to the other document, "Annexure B". 44 When cross-examined about the meeting of 23 October 1998 the first defendant gave this evidence - Q. Look at the 23rd for the time being. Do you recall having a meeting with your parents after dinner at their house one night in which you discussed the possibility of you and your family moving into the Baulkham Hills property? A. I recall having a conversation with my father in an afternoon before dinner before the Baulkham Hills property.

Q. But you have no recollection of having a discussion with him and your mother and your wife after dinner? A. I believe during dinner or while my mother was preparing dinner on that day my father and I came into the kitchen and we had some discussions that filled both my mother and my wife in as to what we had been discussing.

Q. So that if there had been a meeting which had taken place between the four of you after dinner you have no recollection of what occurred at that meeting? A. Well, in all honesty I, it would be very vague in my mind if there was a meeting that went to the explicitness of what is in those affidavits. I couldn't agree, I couldn't say whether they were right or wrong. 45 I do not doubt the evidence of the first plaintiff that he made on his computer a record dated 23 October 1998 that he printed for the meeting with the defendants and reproduced for his affidavit. I do not think that he fabricated it after the event. I think it quite unlikely that, having produced a record for the very purpose of setting out the plaintiffs' thoughts about the circumstances in which the defendants should occupy the property, he should not use it at the meeting. 46 The second plaintiff gave evidence that the first plaintiff spoke at the meeting using such a document. 47 I accept the evidence of both plaintiffs about the use of the document and about the substance of the conversation. I think that both plaintiffs did their best to give a fair account of what was said and done. They were supported by the two computer-produced documents, which I think are genuine and contemporary with the events. The plaintiffs wrongly asserted tenancy and demanded rent, of course, but those errors do not lead me to doubt their honesty. The first plaintiff maintained a number of files on his computer, recording amounts received and spent on and for the property. Two were called "adam\loan" and one was called "adamsgift". However, I do not think that by using such terms the first plaintiff ever intended to vest the property in the first defendant or ever believed that he had done so. At all times he thought that the first defendant was only a tenant. 48 I accept the evidence of the plaintiffs where it conflicts with that of the first defendant. 49 I formed a poor impression of the first defendant. I found him argumentative, evasive and unwilling to attempt forthright answers to questions. I shall give some examples. He was not prepared to concede that he was anxious, following the events at Oakdale, to leave that district for good. He tried to give the impression, falsely I think, that he was no keener to leave after those events than he had been before. There was this evidence - Q. And did you and your wife as a result of that incident become even more eager to move elsewhere? A. My wife wasn't keen to sell the house. We wanted to continue renovating it and finish it to what we had planned to do and I was no more eager to move then than I would say perhaps before, only because we had had a lot of trouble finding--

Q. So the answer to my question is no. You weren't more eager to move after the DOCS raid? A. I wouldn't say we were more eager. Perhaps more interested but not necessarily more eager. Certainly if an offer was put to us that would make it very amenable for us to move we would consider that offer, as we did. 50 It was hardly to be denied that in 1991 the first defendant had borrowed $10,000.00 from the plaintiffs and that he had never repaid the greater part of that sum. There were these questions and answers - Q. So you owe your parents a good, or rather you owe, yes, your parents a good proportion of the $10,000 that you borrowed from then in 1991 as well? A. No. If you want to look at it from a legal point of view the claim on that debt is limited by six years.

Q. All right, all right-- A. Can I finish?

Q. Let me-- A. Can I just finish, please?

Q. Can I -- A. Can I just finish please? In relation to the relationship between a parent and a child I would expect that if I were to at some stage make a substantial amount of money, or be able to look back at those debts and the kindness that has been given to my parents for advancement, my education and, you know, my well-being, then I would probably be very happy to contribute to them. Especially if, you know, in their older age they perhaps wanted or needed some financial assistance and I was capable of providing that.

Q. Can you listen to my question? A. Yes.

Q. And then just answer my question? A. Yes.

Q. And do it as quickly and as shortly as you can? A. Yes.

Q. If your parents were to try to enforce the repayment of that loan in 1991 now, you would claim that they were statute barred and could not enforce it any longer? A. Right now?

Q. Yes? A. Yes. 51 Asked about the letter he had written in response to the first plaintiff's visit on 5 May 2000, the first defendant gave this evidence - Q. So very early on in your father's visit he brought up with you the topic of the rent you owed him? A. That statement would be devised from the whole construction of all the conversations that took place that day.

Q. Mr Todd, it says "Within the first minutes you talked about owing rent." Was that true? A. That is what I wrote.

Q. Was it true? A. He came in and said --

Q. Was it true? A. He came in and said --

Q. Can you not answer the question that I asked you? A. I--

Q. You don't know-- A. I can't say whether the conversation and the document match. This is not a transcript of the conversation. This is a document of impressions and feelings. I would like to go to the back of the document where it says "In summary".

HIS HONOUR: Q. Mr Todd, this is important to your case. I'm going to ask you the question this time, please listen carefully.

The first sentence of the fourth paragraph of your letter says this, "Within the first few minutes you talked about owing rent." When you wrote that, was it true? A. It was my perception of what had occurred earlier in that day. … Q. In answer to him having asked you of your intentions, you stated that you were aware of this problem? A. The fact that there were some tax discussions still outstanding, yes.

Q. You were aware of the problem of unpaid rent? A. No. … Q. And my question to you is this: If, as you say, you considered all along that you were the owner of this property, why on earth did you not just make that statement in one of these letters? A. It is not how I go about things, that is not the kind of person I am. I don't come to people generally and hit them on the nose and hit them in the face and say: Guess what, I'm going to be argumentative. I say: Could you show me how you come to your conclusion.

Q. You don't say that? A. I do. It says "In order to validate your claim."

Q. It doesn't say "Dad, I think I'm actually the beneficial owner of the property. What makes you think that I am a tenant?" It doesn't say that? A. There is nothing from him saying that I'm not a, that, there is nothing in any letter they have written to us disputing that we are not a tenant.

Q. You cannot be serious in that answer? A. Well, I'm sorry, I did not get a reply to the letter of 29 January. How am I to know? Can you show me where there is a reply from the plaintiffs to the letter of 29 January?

52 I reject the first defendant's denial that the first plaintiff used a document at the meeting. I think that his recollection of the events is unreliable. 53 In his affidavit affirmed on 30 May 2005 the first defendant gave this evidence - 3. I believe that at all times and at any time a payment of monies was made by me to the Plaintiffs I was under the pretence (sic: impression?) that I was paying for the property and gaining equity therein, and that those monies would be given to me in the future as part of a cash division of the Plaintiff's estates. 4. In doing this I believe that each payment gave me equity in the property. … 11. I believe from the time the Plaintiffs offered to purchase the property in early 1998 to this day, that the property was not a rental property and that I was to inherit the property and any monies paid to the plaintiffs for the property, plus a division of the Plaintiff's estate upon testate. … 17. I do not believe I have every paid any rent to possess the property, nor do I believe I am required to. 54 I do not accept that the first defendant ever believed that by making payments he was acquiring any equitable interest in the property or that he was establishing any future right, estate or interest in the property. I think that if he had had such a belief he would have said so in his letters to the plaintiff. 55 The second defendant did not give evidence. In view of the fact that she appears to have had no legal training and to have acted by herself or at the instigation of the first defendant throughout the preparation and conduct of the proceedings, I prefer not to infer, as invited by senior counsel for the plaintiffs, that her evidence would not have assisted her case. I simply conclude that her failure to give evidence has left the first defendant, an unreliable witness, quite without support. 56 I conclude that there was a conversation between both plaintiffs and both defendants in which the first plaintiff referred to things written in the document. The oral narrative deposed to in the first plaintiff's affidavit was prepared for court more than six years after the event. Even so, the text is supported to a large extent by the computer-produced documents. I accept he used words substantially the same as those related. 57 The evidence of the first plaintiff was that he prepared a second document on his computer entitled "Agreement re house Baukham (sic) Hills". He swore that the document - Basically set out the terms of the agreement reached between the parties as read out … on 23 October 1998 with agreed amendments. 58 I accept that the first plaintiff did make such a record and that the second defendant delivered printed copies to the defendants before or at the time they took up occupation. It is the one that was referred to as "Annexure B" in the earlier extract from the first defendant's affidavit. It was obviously adapted from the document made on 23 October 1998. This is the text of it- C:\MyDocuments\CurrentData\Investment\BHills\BHillscond.doc Agreement re House Baukham Hills We plan at this date that the house will stay in our names. If you make your fortune early you may choose to buy it from us in one way or another. At the 1998 price plus all purchase costs if rent has always been paid on time. You are to consider the house as your own. You can make all decisions as to what you do. We will not require you to do what we wish. If you wish to sell the house or rent it, you may make these decisions and do all the work and we will accept with this. You will pay all costs. Council rates, Water rates, Repairs etc. You will in addition pay rent at this date of $880, monthly from 15/1/99 (plus or minus annually any other amounts which may be needed to equal a commercial rent). ($310 - usual costs) 8% agent, 25-30% overall You will keep accurate records of every cent spent on the house. This will include phone calls, car costs, postage etc. re the house, purchases, repairs, paying bills etc.. Anything for which we can claim tax deductions. Cost of additions and improvements are also required so that they can be used to reduce capital gains tax if and when the house is sold. You will give me a full copy of all these expenses every 6 months (including all receipts in our name). July & January. All rent MAY be considered as a payment towards the ultimate purchase of the house. At B & G's discretion. Once you have paid for the house (or part paid progressively) it will be noted in our wills that the house to that amount goes directly to you. The above agreement may be varied by mutual agreement at any time.

59 There is no evidence that either defendant acknowledged receipt of the document or acknowledged that it accurately stated all the terms on which they were entering into possession of the property. 60 The defendants did not sign either of the documents that were drafted and printed before they took up occupation. Nevertheless, the documents support the plaintiffs' version of what was said. The terms of the documents are not always easy to construe, but some things can be said with confidence. 61 First, having bought the property, the plaintiffs were not proposing to give or sell it to the defendants. 62 Secondly, the plaintiffs regarded themselves as obligated to service the loan. I do not accept the first defendant's assertion that he did not know that the plaintiffs had borrowed money to purchase the house. 63 Thirdly, the plaintiffs intended to include a record of this investment in their tax returns and wanted the defendants to maintain a complete record of spendings that might become relevant for that purpose. 64 Fourthly, the plaintiffs wanted the defendants to pay the outgoings. 65 Fifthly, the defendants were to have indefinite exclusive possession of the property. 66 Sixthly, the defendants were to have the right to buy the property. The first plaintiff's use of the expression "if you make a fortune early" and the plaintiffs' knowledge of the financial position of the defendants in October 1998, coupled perhaps with their experience with the first defendant's past borrowings, suggest that the plaintiffs were not expecting any early indication by the defendants of the desire to buy them out. The first plaintiff's use of the words "if you want to buy it at some stage, we will work out a new agreement as to what will happen at that time" show that the idea of purchase by the defendants was being left open, to be dealt with only if it arose later on. If such an occasion arose the defendants might hope that the plaintiffs would agree to credit their past payments of outgoings ("rent") towards the purchase price. 67 Seventhly, the parties might mutually vary the arrangement. 68 But there was a major uncertainty about the arrangement. I note that in the second computer-produced document the plaintiffs included a provision for purchase at a price based on the price they had paid for the property, provided that the defendants had in the meantime always paid "rent" on time. Unfortunately, the formula contained in that document for the determination of rent might be difficult to construe and apply and there might be difficulty in ascertaining whether the defendants had paid such sums as qualified them to purchase at the 1998 price base. But what otherwise would the price be? There was no indication at all and no agreement. Simply a statement of intention to work one out. 69 Looking overall at what was said and written, I would be prepared to infer that there was an arrangement of sorts between the plaintiffs and the defendants. Its terms were first that if conditions remained as they were and the parties did not come to some different arrangement, the defendants would have exclusive possession of the house, that they should pay outgoings, some of which the plaintiffs called "rent", and that the defendants might purchase the house from the plaintiffs at a price and on conditions to be negotiated. 70 It is difficult to go further, however. There was no provision for what should happen if the defendants stopped paying outgoings. There was no clear provision for ascertaining the price if the defendants should wish to purchase.

71 I think that what the parties did in October 1998 was provide a home for the defendants and canvass the sort of arrangements they might come to later on if things turned out well. Both sides were entitled to withdraw from the understanding if it no longer suited them. The defendants' failure to make any contribution to the cost of maintaining the property and their refusal to allow the plaintiffs access to their own property, thwarting efforts to keep it in good repair, can only be seen as withdrawing from such arrangements as were on foot. The plaintiffs, too, withdrew from the arrangement when they realised at last that further efforts to deal reasonably with the defendants would not succeed and when it became obvious that the defendants would never be able to make an offer to buy the premises. The first defendant was penniless and had received no income apart from welfare since 2003. 72 In my view, the arrangement was no more, for present purposes, than an agreement to negotiate a price if the defendants should offer to purchase. No offer eventuated and the arrangement was terminated by each side. Given that there was no lease, the parties were in no enforceable contractual relationship.

73 The plaintiffs did not agree to purchase the property on trust for the first defendant. No question of lack of writing or formality arises. There was simply no such agreement. 74 Since the defendants have no obligations in contract no questions of relief arise. 75 There was no agreement for sale of the property. No question of repudiation arises.

76 I am not satisfied that the second defendant's sale of her house was linked in any but a temporal way to her decision to occupy the property and her agreement to pay outgoings. The second defendant did not give evidence. I infer that she sold her house because she had to pay her debts and because she had to leave Oakdale. She obtained no equitable interest in the property by the payment of any amount. 77 In my opinion the plaintiffs have established a right to possession of the property by requiring the defendants, in the letter of 30 July 2004, to vacate the property and by the defendants' failure to do so. They are entitled to recover damages from the defendants calculated from 2 September 2004. 78 The several actions in trespass concern occasions when the first plaintiff and persons acting for the plaintiffs are said to have been to the property. The allegations are that twice in January 2004 the plaintiff called at the house. The defendants stayed inside and watched him but did not let him in. In March and May 2005 a private process server called on behalf of the plaintiffs. In October and November 2005 a Sheriff's officer called at the property. But these are only allegations. No evidence was adduced to establish what the defendants' asserted. They must therefore fail in their claims. Lest it be thought that the first defendant's oversight has led to a miscarriage of justice I should observe that he has failed to establish the existence of any possessory estate or interest, legal or equitable, in the property such as would have been essential to ground an action in trespass. Following the plaintiffs' first efforts to have the defendants removed from the property, the defendants continued to occupy it without estate, interest or licence. After the mutual withdrawal of the parties from their arrangement the plaintiffs, as registered proprietors, were entitled to occupy the property against all comers, including the defendants. The actions in trespass were bound to fail. Orders 79 I make the following orders - In the Amended Statement of Claim in proceedings 20280 of 2005 - 1. The plaintiffs are to have judgment for possession of the land and an order granting them leave to issue a writ of possession.

2. The defendants are ordered to pay damages for their unlawful possession of the land on and after 2 September 2004.

3. I refer the assessment of damages to an Associate Judge.

4. The defendants are to pay the plaintiffs' costs. In the first cross-claim - 5. Direct the entry of a verdict and judgment for the cross-defendants. 6. The cross-claimant is to pay the cross-defendants' costs. In the second cross-claim - 7. Direct the entry of a verdict and judgment for the cross-defendants.

8. The cross-claimants are to pay the cross-defendants' costs. In the Second Amended Statement of Claim in proceedings 20119 of 2006 - 9. Direct the entry of a verdict and judgment for the third and fourth defendants. 10. The plaintiffs are to pay the third and fourth defendants' costs. *************

11/09/2006 - Coversheet amendment - Paragraph(s) n/a

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