Todd and 1 Other v Todd and 1 Other [2007] NSWCA 224

Procedural Posture

Appeal Concerning Possession of Land and Trespass Cross Claim / Appeal From the Supreme Court Common Law Division; Leave to Appeal Granted by Basten JA on 21 May 2007

Legal Issues

1. 1 ['Whether the decision of the Consumer Trader and Tenancy Tribunal gave rise to res judicata, issue estoppel or Anshun estoppel preventing the respondents from seeking possession in the Supreme Court.' 'Whether the primary judge erred in finding that there was no enforceable contractual relationship, trust, agreement for sale, gift, or irrevocable right permitting the appellants to remain in possession of the property.' 'Whether the appellants should be permitted to adduce further evidence on appeal and whether the primary judge wrongly refused or failed to hear relevant evidence.' "Whether the respondents' entitlement to possession defeated the appellants' trespass claim."]

Ratio Decidendi

The Tribunal's decision only established, at most, that no residential tenancy agreement existed between the parties for the purposes of the Residential Tenancies Act and that the Tribunal lacked jurisdiction; it did not determine ownership or any enforceable right of the appellants to remain in possession and did not bar the Supreme Court proceedings. The primary judge was entitled to find that the arrangement was not a lease, trust, agreement for sale, gift, or enforceable contractual relationship, but no more than an arrangement or agreement to negotiate if the appellants offered to purchase, which both sides had terminated. The further evidence should not be admitted, no appellable...

Court Disposition

Appeal dismissed with costs.

Orders

• ['Appeal dismissed.' "Appellants to pay the respondents' costs."]