Bernhardt v Bernhardt [2019] NSWSC 1632

Bernhardt v Bernhardt [2019] NSWSC 1632

The plaintiff was the sole registered proprietor of the Property and was entitled to exclusive possession. Even accepting the defendant's alleged oral private arrangement at its highest, it could not create an enforceable interest in the Property because interests in land must be in writing and oral interests have only the effect of interests at will. The defendant had at most a bare licence, which had been terminated by reasonable notice, and no constructive trust or estoppel arose on the facts. The plaintiff was therefore entitled to judgment for possession and a writ of possession forthwith.

Jurisdiction
Australia
Judgment Date
21 November 2019
Procedural Posture
Proceedings for Possession of Land / Final Hearing; Defendant Did Not Appear; Judgment for Plaintiff
Outcome
Judgment for the plaintiff for possession; leave granted to issue a writ of possession forthwith; defendant ordered to pay the plaintiff's costs.
Legal Topics
['indefeasibility of Title' "registered Proprietor's Right to Possession" 'requirements of Writing for Interests in Land' 'bare Licence' 'writ of Possession' 'costs Follow the Event']
['land Law' 'torrens Title' 'conveyancing' 'civil Procedure'] ['indefeasibility of Title' "registered Proprietor's Right to Possession" 'requirements of Writing for Interests in Land' 'bare Licence' 'writ of Possession' 'costs Follow the Event']

Case Brief

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Procedural Posture

Proceedings for Possession of Land / Final Hearing; Defendant Did Not Appear; Judgment for Plaintiff

Legal Issues

  1. 1 ['Whether the plaintiff, as registered proprietor of the Property, was entitled to possession against the defendant in occupation.' "Whether the defendant's alleged private arrangement with the plaintiff gave the defendant an interest in the Property or a defence to the claim for possession." 'Whether the oral statements alleged by the defendant could create or dispose of an interest in land without writing.' 'Whether any licence held by the defendant had been terminated by reasonable notice.']

Ratio Decidendi

The plaintiff was the sole registered proprietor of the Property and was entitled to exclusive possession. Even accepting the defendant's alleged oral private arrangement at its highest, it could not create an enforceable interest in the Property because interests in land must be in writing and oral interests have only the effect of interests at will. The defendant had at most a bare licence, which had been terminated by reasonable notice, and no constructive trust or estoppel arose on the facts. The plaintiff was therefore entitled to judgment for possession and a writ of possession forthwith.

Court Disposition

Judgment for the plaintiff for possession; leave granted to issue a writ of possession forthwith; defendant ordered to pay the plaintiff's costs.

Orders

  • ['Judgment for the plaintiff for possession of the land described in Folio Identifier Lot 1 Strata Plan 53223, being the land situated at and known as xxxx xxxxx xxxx, Forster in the State of New South Wales.' 'Grant leave to issue a writ of possession forthwith.' "Order the defendant to pay the plaintiff's costs of...