Togias v State of New South Wales [2023] NSWSC 665

Togias v State of New South Wales [2023] NSWSC 665

The plaintiff's 25% equitable interest in the Glenwood property did not give her a right to possession against the second defendant as registered proprietor and trustee. She was not a tenant at will because the second defendant did not put her into exclusive possession and no contract for exclusive possession could be implied; rather, she was a licensee whose licence was sufficiently revoked by service of the February 2023 motion. The second defendant could apply for judgment for possession once the Court was satisfied that Mr Wayan Subakti, another occupant, had notice and did not oppose. However, any writ for possession should be stayed because the property had been the plaintiff's home...

Jurisdiction
Australia
Judgment Date
20 June 2023
Procedural Posture
Equity Proceedings Concerning Co Ownership, Possession and Sale of Residential Real Property Following Orders Under the Criminal Assets Recovery Act 1990 / Remitter Proceedings After Court of Appeal Decision; Determination of Preliminary Possession Issue on Second Defendant's Motion Dated 13 February 2023
Outcome
Second defendant granted leave to apply in chambers for judgment for possession against the plaintiff upon satisfying the Court that Mr Wayan Subakti has been served with notice of the proceedings and does not oppose. Issue of any writ for possession stayed until further order. Set off issue adjourned. Costs reserved.
Legal Topics
['co Ownership' 'constructive Trust' "equitable Co Owner's Right to Possession" "registered Proprietor's Claim for Possession" 'tenancy at Will' 'licence to Occupy' 'writ for Possession' 'stay of Enforcement' 'judicial Sale' 'accounting and Set Off']
['land Law' 'equity' 'property Law' 'civil Procedure'] ['co Ownership' 'constructive Trust' "equitable Co Owner's Right to Possession" "registered Proprietor's Claim for Possession" 'tenancy at Will' 'licence to Occupy' 'writ for Possession' 'stay of Enforcement' 'judicial Sale' 'accounting and Set Off']

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Procedural Posture

Equity Proceedings Concerning Co Ownership, Possession and Sale of Residential Real Property Following Orders Under the Criminal Assets Recovery Act 1990 / Remitter Proceedings After Court of Appeal Decision; Determination of Preliminary Possession Issue on Second Defendant's Motion Dated 13 February 2023

Legal Issues

  1. 1 ['Whether the second defendant, as registered proprietor holding a 25% interest on trust for the plaintiff and the remaining interest otherwise, had an immediate right to possession of the Glenwood property against the plaintiff.' 'Whether the plaintiff, as an equitable co-owner, had a right to possession sufficient to resist judgment for possession.' 'Whether the plaintiff occupied the Glenwood property as a tenant at will of the second defendant requiring a notice to quit under Conveyancing Act 1919, s 127.' 'Whether issue of a writ for possession should be stayed pending sale and determination of accounting issues.']

Ratio Decidendi

The plaintiff's 25% equitable interest in the Glenwood property did not give her a right to possession against the second defendant as registered proprietor and trustee. She was not a tenant at will because the second defendant did not put her into exclusive possession and no contract for exclusive possession could be implied; rather, she was a licensee whose licence was sufficiently revoked by service of the February 2023 motion. The second defendant could apply for judgment for possession once the Court was satisfied that Mr Wayan Subakti, another occupant, had notice and did not oppose. However, any writ for possession should be stayed because the property had been the plaintiff's home...

Court Disposition

Second defendant granted leave to apply in chambers for judgment for possession against the plaintiff upon satisfying the Court that Mr Wayan Subakti has been served with notice of the proceedings and does not oppose. Issue of any writ for possession stayed until further order. Set off issue adjourned. Costs reserved.

Orders

  • ["In respect of the relief claimed in Order 2 of the second defendant's motion dated 13 February 2023, the second defendant may apply in chambers for the entry of judgment for possession against the plaintiff for the whole of the land contained in [address not published], Glenwood, NSW 2768, upon satisfying the...