Cross v Cross-Boyd [2021] NSWSC 977

Cross v Cross-Boyd [2021] NSWSC 977

The arrangement in the Deed constituted a residential tenancy agreement within the meaning of s 13 of the Residential Tenancies Act 2010 (NSW), meaning proceedings for possession could not be brought in the Supreme Court by reason of s 119, providing a complete defence. Even if defaults had occurred, they had been waived by acceptance of subsequent payments, and the defendant was not entitled to offsets for repair costs. Relief against forfeiture was not available due to the absence of a proprietary or possessory right.

Parties
First Plaintiff: William Patrick Cross; Second Plaintiff: Gregory Thomas Cross; Defendant: Virginia Frances Cross-Boyd
Jurisdiction
Australia
Judgment Date
10 August 2021
Procedural Posture
Civil / Principal Judgment
Outcome
Judgment for the defendant.
Legal Topics
Licences, Occupancy Fee, Relief Against Forfeiture, Waiver, Estoppel, Residential Tenancy Agreement, Amendment of Pleadings
Leases and Tenancies Civil Procedure Licences Occupancy Fee Relief Against Forfeiture Waiver Estoppel Residential Tenancy Agreement +1 more

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Parties

William Patrick Cross

First Plaintiff

Gregory Thomas Cross

Second Plaintiff

Virginia Frances Cross-Boyd

Defendant

Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 Whether there was a relevant default under the Deed of Family Arrangement
  2. 2 Whether acceptance of occupancy fee after default amounted to waiver
  3. 3 Whether expenditures on repairs entitled defendant to offset against weekly contributions

Ratio Decidendi

The arrangement in the Deed constituted a residential tenancy agreement within the meaning of s 13 of the Residential Tenancies Act 2010 (NSW), meaning proceedings for possession could not be brought in the Supreme Court by reason of s 119, providing a complete defence. Even if defaults had occurred, they had been waived by acceptance of subsequent payments, and the defendant was not entitled to offsets for repair costs. Relief against forfeiture was not available due to the absence of a proprietary or possessory right.

Court Disposition

Judgment for the defendant.

Orders

  • Judgment for the defendant.
  • The defendant is to pay the plaintiffs' costs incurred by reason of the filing of the amended defence.