Lennon v Opalicki[2005] QSC 307

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MOYNIHAN J

No 6075 of 2004

BRISBANE

DATE 06/10/2005

JUDGMENT

HIS HONOUR: The applicant, by this originating application, sought a declaration and consequential orders that the respondent had breached the conditions of an equitable licence for a free tenancy in relation to the occupation of a property on Macleay Island. The application also sought orders to vacate the premises and for an accounting with respect to rental income from those premises.

There is a procedural history to the case which is apparent from the file. It is unnecessary to trace it in detail, but I need to mention it in the context of an application by the respondent for an adjournment after his solicitors were given leave to withdraw. There had been a number of applications for substituted service, and for dispensing with the respondent's solicitor's signature on an application for a hearing date. That matter was dealt with by Mullins J on 20 July, and her Honour gave a number of directions. One of them related to the circumstance of the respondent seeking a further adjournment of the matter. The requirements imposed by Mullins J in that order were not adhered to for the application for an adjournment made today.

When the matter was called on, the solicitors on the record for the respondent sought, and were granted, leave to withdraw. The respondent, appearing for himself, sought an adjournment until April next year, in part because of a difficulty with his foot and impending surgery. The nature of that is controversial, that is reflected in the conclusions of Mullins J's order to which I have referred. It is unnecessary to resolve at the moment. The respondent also sought an adjournment for the purpose of instructing fresh solicitors. The solicitors granted leave to withdraw applied to do so on the basis that their fees outgoings were not paid. The respondent states he has no money to retain a solicitor, and there is little otherwise as to his prospects of successfully doing so. He also has no money to meet any order for payment of costs or of any outstanding sum as a condition of the granting of an application for an adjournment. As I say, there was a history of difficulties arising because of the respondent's noncompliance, and there was, as a consequence, some basis for submissions that he was obstructing the progress of the case. The applicant then appeared for himself.

The applicant and the respondent are beneficiaries under the will of Penelope Margaret Lennon. Probate of the will was granted on the 4th of April 2004. The proceeds of the estate were distributed in accordance with the terms of the will. The respondent received benefits in addition to those in issue here. One of the provisions of the will was that the house on Macleay Island was left to her four children, who were to allow the respondent to:

There was a proviso that if a life assurance claim was rejected the house was to go to the respondent, but that contingency did not occur. The applicant acquired her siblings' interest in the property and is now the registered proprietor of the fee simple.

The applicant contends that the defendant occupied the house as a licensee on the conditions provided for by the will; that he is in breach of those conditions in that he failed to pay the rates, has not kept the house in excellent condition, and that he accepted money from a tenant. These were put in issue in a document described as a defence and counterclaim, which was filed as a consequence of a directions order given by Holmes, J. That pleading is directed to establishing the respondent's interests as being a life tenancy as well as, as I've said, putting the breaches in issue. In fact, no counterclaim as such is pleaded. The defence does refer to, rather than plead, matters which might or might not found claims for relief other than that based on a life tenancy. They are irrelevant, in any event, to the issue of the life tenancy.

In my view, the applicant's submissions are correct that the respondent's interest under the will is a licence, a form of equitable right to occupy the property on the conditions of the will, and is not a life tenancy. The disposition is not expressed in terms of being referable to the respondent's, or any other, life. It does not otherwise have any of the characteristics of a life tenancy as distinct from a licence to occupy; see, for example; In re the will of Myer [1995] 2 QdR 150. The position, therefore, is that the respondent took a benefit on the conditions of the will and is liable to the extent as if he had contracted to perform those conditions (Perpetual Trustee Co Ltd v. Godsell [1979] 2 NSWLR 785 at 795). The condition required, in exchange for the benefit, performance of the conditions (Lyons v. Lyons 1093 of 1987, New South Wales Supreme Court Equity Division).

So far as the breaches are concerned, there is evidence, and I accept, that there was a breach to comply with the condition as to the payment of rates. The respondent's explanation even if it is accepted that he didn't pay the rates because of a redirection of the mail not instigated by him is an explanation to a very limited extent. The respondent was obviously aware that he was under an obligation to pay the rates. He has paid some, the rest were paid initially by the executor and subsequently by the applicant. The respondent has certainly been aware that the applicant was pressing for his compliance with the requirement that he pay the rates for some time.

So far as the question of the letting of the property is concerned, the respondent in the course of the proceedings before me accepted that he had done that. To do so is a breach of the condition of the lease or the licence (Re Keenan, Forde v. Keenan (1913) 30 WN (NSW) 214; Perpetual Executors and Trustees Co Ltd v. Heal (1889) 10 ALT 229; Parker v. Parker (1863) 1 New E Rep 508). The breach of either of those conditions is sufficient to justify the termination of the licence, which I am satisfied has occurred. I am not prepared, on the evidence as it stands, to conclude that the respondent failed in his obligation to keep the house in excellent condition, given his explanation as to some aspects of those events. But as I say, that, given my satisfaction as to the other points, is irrelevant.

The applicant, therefore, is entitled to a declaration of breach of the conditions of the licence and to an order for an account in terms of paragraph 3 of the draft order which has been handed up.

So far as giving effect to the order of the declaration of breach is concerned, in the course of the proceedings before me the defendant offered to vacate the premises by some date next year. That was rejected by the applicant. He renewed that application in terms of the time to vacate to be given under an order of possession here. He states that the reason for that is that he needs that time, given the difficulty with his leg and the prospect of an operation, to remove his property from the premises.

Whilst one might, to a degree, be sympathetic to the respondent, he has been on notice of this situation for some time. The nature and extent of any disability that he might have has been contentious for some time. There is no evidence as to when the operation will occur, its possible effect and consequences. The respondent's statements as to what's involved and as to how long he might be required to vacate the premises are not satisfactory.

In the circumstances, I therefore order that he vacate the property and give over possession to the plaintiff within 21 days of the date of the order.

Mr Alford, your draft order seeks costs on a solicitor client basis.

…

HIS HONOUR: The respondent seeks indemnity costs, submitting that the defence was untenable at the outset; conducted as to be an abuse of process; and without merit for success. It might be that the proceedings can be characterised now from that perspective, although I note, however, that the respondent was, up until the leave given this morning, represented by solicitors and the pleadings were prepared by them, no doubt, on the basis of the client's instructions.

I also note that there are reserved costs orders in respect of other applications to the Court to deal with the situation that arose when those orders are made.

In the whole of the circumstances, I am not persuaded that an indemnity order should be made. I order, however, that the respondent pay the applicant's costs of the originating application, and I include in that the costs in respect of the claim and statement of claim, which were the subject of a separate file, and that they be assessed on a standard basis. I give liberty to apply.