Intestacy, Inertia & Distribution

In 2018, Pamela Frimont became administrator of the estate of her father Albert Bruce Case, (‘the estate’)who had died intestate in 1968. Albert was survived by a widow Joyce and three children, Kenneth, Robert and Pamela (another daughter Sylvia had died as a child in 1944). Kenneth Case obtained Letters of Administration of Albert’s estate on 18 June 1968, but by the time of his death on 1 October 2003 Albert’s estate remained unadministered, and it’s major asset – land at Blaxland’s Ridge (“the Land”) had not been transmitted into his name as administrator. A property on the Land has been occupied by Pamela’s nephew Donald Case (”the property “) for more than a decade.

Albert’s Intestacy

In 1968 s 50(a) of the Wills, Probate and Administration Act 1898(NSW), provided that Joyce was entitled to a one-third share of the intestate estate. Joyce died in 1986, leaving a will appointing her son Robert executor and sole beneficiary of her estate. A grant of probate of Joyce’s estate included her right to the due administration of Albert’s estate, resulting in her one third interest in the land being transmitted to Robert.

In September, 2010, Donald and his wife Peggy, agreed to give up their present accommodation and move into the property on the Land and provide domestic services to Robert. Donald paid some amounts of Council rates but has otherwise never paid rent.

The Land must be sold as since Albert’s death, a number of beneficiaries of his intestate estate have died, and there are now six people – including Pamela and Robert – entitled to share in Albert’s estate.

In November 2018, Pamela’s solicitor wrote to Donald advising that she had decided to sell the land in order to finalise the estate. Subsequently, she has agreed to sell the land for $1.27 million, with vacant possession. Pamela then arranged for two written notices to be given to Donald to vacate, the first in November 2018 and the second in May 2019.

Donald’s Action

Donald submitted that s 119 of the Residential Tenancies Act provides the Supreme Court has no jurisdiction to obtain recovery of possession of residential premises subject to a residential tenancy agreement. In the alternative, Donald submitted that he occupies the premises from year to year, that such a tenancy is terminable on one month’s notice under s 127 of the Conveyancing Act 1919 (NSW), and that no such notice has been given.

The principal issue between the parties was whether or not Donald was entitled to possession of the land by virtue of a residential tenancy agreement (RTA) between the estate and himself. Section 13 of the Residential Tenancies Act 2010 (NSW) defines a tenancy agreement as

“an agreement under which a person grants to another person for value a right of occupation.”

Donald submitted there were three occasions when a RTA came into effect;

1. when he arranged with Robert to move in to the property in 2010.

2. when Robert died in 2011.

3. when the Pamela became the Administrator in 2018.


Donald submitted that by seeking possession Pamela had acted unconscionably and as Administrator, had encouraged him to believe an RTA was in force by accepting that he pay half the rates. There was no evidence to support this claim for estoppel.

In holding that Pamela had a right of possession the Court stated 

“when the present proceedings were commenced there was no residential tenancy agreement in place. The defendant has no right to remain on the land.”

The primary judge concluded that there could be no residential tenancy agreement with the administrator based merely upon Donald’s continuing occupation of the premises and payment of a fraction of the rates and charges of which the administrator was unaware.

Donald appealed the decision submitting the primary judge erred in failing to find that he had residential tenancy agreement.

The Appeal

In dismissing the appeal the NSW Court of Appeals held that

“under s 13, a residential tenancy agreement may be implied, the only matters relied upon here are the defendant’s occupation of the premises, and the fact that he paid amounts off the rates from time to time.”

Similarly If the payment of half the rates was part of an agreement in return for which he was given a right of occupation, Donald’s failure to pay amounts totalling half would mean only that he was in breach of that agreement. It would not, of itself, mean that there was no agreement or that he had not partly carried out any such obligation.

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