FEDERAL COURT OF AUSTRALIA

Martin v Individual Homes Pty Ltd (in liq) [2000] FCA 795

ANTHONY GILBERT MARTIN and SUE DOLORES MARTIN v INDIVIDUAL HOMES PTY LTD (In Liquidation)

A105 of 1999

WILCOX, BURCHETT and MARSHALL JJ

CANBERRA

18 MAY 2000

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants, Anthony Gilbert Martin and Sue Dolores Martin, pay the costs of the respondent, Individual Homes Pty Ltd (In Liquidation).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EXTEMPORE REASONS FOR JUDGMENT

1                     WILCOX J:  This is an appeal from a decision of Higgins J made on 16 December 1999 when his Honour ordered that the plaintiff, Individual Homes Pty Limited (In Liquidation) have leave to enter judgment for possession of 8 Grund Place, Kambah.  He ordered that the defendants, Anthony Gilbert Martin and Sue Dolores Martin, who are in possession of the property at the present time, pay the costs of the proceedings. 

2                     The order made by his Honour is the most recent in a lengthy chain of orders made in connection with litigation between Mr and Mrs Martin and the liquidator of Individual Homes, a company previously controlled by them.  The company went into liquidation in 1994.  Since that time, there has been protracted litigation as to the company's entitlement to possession of the home.

3                     One issue that was raised at an earlier date was the question whether the company, although the registered lessee of the property under the Land Titles Act 1925 (ACT) was holding the property on trust for Mrs Martin as contributor of the funds from which the house on the land was erected.  This issue was decided adversely to Mr and Mrs Martin in the Supreme Court by Gallop J.  Mr and Mrs Martin appealed to the Full Federal Court in relation to his Honour's order.  They failed in their claim of resulting trust. However, the Full Court thought there was a question whether Mr and Mrs Martin were in possession of the property as tenants at will.  If they were, there was a problem about the Supreme Court making an order for possession because of the operation of the Residential Tenancies Act 1997 (ACT).  Accordingly, the Full Court set aside so much of Gallop J’s order as permitted the liquidator to obtain judgment for possession.  Mr and Mrs Martin were unhappy about the result of the appeal in respect of the claim of resulting trust.  They made an application to the High Court of Australia for special leave to appeal against the Full Court's order but special leave was refused. 

4                     This litigation determined there is no resulting trust in favour of Mrs Martin.  We have to accept that as a determination which is binding on the parties, and, of course, binding on us in our determination of this appeal.  I fully understand that Mrs Martin does not, in her heart, accept the correctness of the Full Court decision.  I think this has played some part in her attitude to the claim of the liquidator and has also influenced the attitude of her husband.  However, whatever the feelings of Mr and Mrs Martin about the matter, the Court has to work on the basis that the issue has been decided against them. 

5                     The determination of the resulting trust issue left outstanding the question whether or not possession could be obtained in the Supreme Court because of a possibility, perhaps it was a probability, that Mr and Mrs Martin were holding as tenants at will.  In order to resolve that matter, the liquidator gave notice to Mr and Mrs Martin that the company no longer consented to them occupying the premises.  This was done in various ways and on several occasions.  There is no doubt that the company’s position was conveyed to them.  Notwithstanding that fact, they did not give up possession of the property.

6                     Mr and Mrs Martin’s failure to give possession led to commencement of the current proceeding.  This was done by the filing in the Supreme Court of a statement of claim. The statement of claim was quite brief, and in the following terms: 

“1.      The plaintiff is a company duly incorporated according to law and capable of suing in its corporate name.  The plaintiff was ordered to be wound up by orders of this Honourable Court made 4 May 1994.

2.                 The plaintiff is the registered proprietor of land being block 11 section 320 division of Kambah in the Australian Capital Territory and being the whole of the land described in Crown Lease Volume 773 Folio 25 and known as 8 Grund Place, Kambah in the Australian Capital Territory (“Land” ).

3.                 The defendants have been in occupation of the Land under a tenancy at will.

4.                 The plaintiff has notified the defendants of its withdrawal of consent to the tenancy at will.

5.                 The defendants have continued to remain wrongfully in occupation of the Land.

AND the plaintiff claims:

1.                  Vacant possession of the Land.

2.         Costs to be taxed or agreed.”

7                     The statement of claim was filed on 3 June 1999.  On the same day, the solicitors for the plaintiff filed a notice of motion, intimating that they would seek various orders including:

“3.      That a writ of possession be issued but execution of the writ of possession be stayed for a period of 14 days.”

8                     An affidavit was filed in support of that notice of motion, being an affidavit by Barry Anthony Taylor, the liquidator.  Mr Taylor's affidavit was supplemented by a second affidavit on 15 June 1999. The intention of the solicitors and the liquidator was to take advantage of the summary judgment procedures set out in Order 15 of the Rules of the Supreme Court of the Australian Capital Territory.  In my opinion, the application and the supporting affidavit comply with the requirements of Order 15 Rule 1.  The affidavits verify each of the elements in the cause of action which is relied upon by the company in seeking an order for possession.  I need not set out all the material in the affidavit. 

9                     The matter came on for hearing before Higgins J on 4 August 1999.  His Honour heard submissions on behalf of the present appellants, Mr and Mrs Martin, as to why he ought not grant the relief that was sought.  A considerable number of propositions were put to him.  His Honour reserved his decision in order to consider those points and dealt with them in a reserved judgment which he delivered on 16 December 1999.  Both Mr and Mrs Martin have addressed us this afternoon and there has been discussion about many, if not all, of the points that were considered by Higgins J. 

10                  I am very conscious, as I am sure all members of the Court are conscious, of the fact that this case is one of extreme importance to Mr and Mrs Martin.  If the appeal fails, they are faced with the imminent prospect of having to give up possession of the home they have occupied for many years. No doubt this will be a considerable hardship to them.  Accordingly, I have considered anxiously whether any error is demonstrated in the conclusions reached by Higgins J.  I have not been able to find any such error.  I do not think there is any point in my going through the various points and his Honour's response to them because, to do so, would be repeating what his Honour has already said.  I am content to say that I agree with the way he has dealt with each of those matters. 

11                  Perhaps I should add, because it is something that has been pressed heavily this afternoon by Mr Martin, that I do not think there is any longer any question about the entitlement of the Supreme Court to grant an order for possession.  If there was ever a tenancy at will by Mr and Mrs Martin, and I offer no opinion about whether or not there was, it seems to me clear beyond argument that it has been terminated.  Mr Martin, himself, referred to legal texts concerning termination of a tenancy at will.  There is no doubt whatever that it is sufficient for a lessor to notify the lessee or lessees of the lessor’s withdrawal of consent to continuation of the tenancy at will.  That has clearly been done in the present case.

12                  Another matter heavily pressed by Mr Martin was that it was not possible for the Supreme Court to make an order for possession in a summary application.  I do not think that is right.  Nothing in the Supreme Court Rules supports that view.  Order 15 is general in its application.  It is true there is a judicial discretion as to whether it is appropriate to use Order 15.  Higgins J thought this was an appropriate occasion to do so and I see no error in his approach to that question.  Accordingly, I have to come to the conclusion that the decision reached by Higgins J is not vulnerable to challenge on appeal.  In my view, the appeal must be dismissed.

13                  BURCHETT J:   I agree.  This appeal relates to a further step in a complicated chain of cases.  What is here involved is the possession of land and a dwelling.  By the time an application for summary judgment came on for hearing in this proceeding, it had become clear that there was no viable defence left to the appellants.  Earlier there had been at least two arguable defences, but they had been disposed of - the major one, in proceedings that went all the way to a special leave application in the High Court.  The issues were now quite straightforward.  The rules for summary judgment were satisfied, and accordingly, it was appropriate for relief to be granted, as it was granted, to the respondent.

14                  As the presiding judge has said, various propositions were put to us during the course of the argument.  Some of them were put with great fervour by Mr Martin, but no arguable additional ground of defence came to light.  In particular, Manchester Corporation v Connolly [1970] 1 All ER 961 was cited by Mr Martin for the proposition, as he formulated it, that an order for possession could not be made under the summary procedure which was availed of in this case.  That authority actually related to rules in England which are not similar to those in question here, and accordingly it is of no assistance.

15                  MARSHALL J:  I agree with each of the reasons for judgment of Wilcox and Burchett JJ and with the order proposed by Wilcox J.

16                  WILCOX J:  The order of the Court will be that the appeal be dismissed with costs.  I would like to address appreciation on behalf of the Court to the court staff and transcript staff for their tolerance in continuing so late.  This has enabled us to dispose of the matter today.

Associate:

Dated:              18 May 2000