Case Summary: Merl v Merl [2022] NSWSC 434

By 10 October 2022Uncategorized


This dispute concerns a claim for possession of a property (“the Property”) co-owned by the plaintiff and her husband as joint tenants. Their daughter brought the proceedings on behalf her mother as her tutor (“the Plaintiff”) against her brother, and the plaintiff’s son (the

The plaintiff and her husband lived at the Property for approximately 30 years. The plaintiff suffered a hip injury, causing her to be admitted to Hornsby Hospital for surgery.

She underwent rehabilitation at MT Wilga Rehabilitation Facility and then moved to the Transitional Care Unit at Woy Woy Hospital. As a condition for release the plaintiff went to respite care at aged care facility, Starrett Lodge, followed by her husband who moved a day
prior and wanted to be with the plaintiff. This was all arranged by the plaintiff’s daughter, acting under the powers of attorney to make arrangements to sell the Property to fund the refundable accommodation deposit of $525,000 each for the plaintiff and her husband’s
accommodation at Starrett Lodge.

A contract for the sale of the Property with vacant possession was exchanged with another party, with the settlement completion date scheduled in 6 weeks’ time.

The Defendant claimed to be a lawful occupant under a residential tenancy agreement that was previously executed on approximately 2 months earlier (“the Lease”).

The lease was not brought to the plaintiff’s daughter’s attention until after the Property was sold under the contract.


The question for the Court’s consideration was whether the Lease was valid.

Counsel for the Plaintiff argued that a lease granted by one only of two joint tenants was not valid. This takes into consideration the nature of the plaintiff and her husband’s joint tenancy and an examination of the facts and circumstances behind the execution of the lease.

The Court made the following observations:

  1. The plaintiff’s husband and the Defendant agreed they signed the Lease.
  2. The plaintiff’s signature was not placed upon the lease prior to the exchange of the contracts for sale.
  3. The Defendant did not take possession of the property immediately upon execution of the Lease.
  4. There was no evidence of any payment or receipt of any rent.
  5. The Lease was evidently initiated for the purpose obtaining rental allowance as part of the Defendant’s application for government benefits.
  6. The plaintiff understood why the sale of the Property was necessary.
  7. It was likely the Lease was signed without the plaintiff’s knowledge.


A finding was made that the Defendant was never in possession of the property under a lawful residential tenancy agreement. The Lease, being executed without the plaintiff’s knowledge or signature, invalidated the agreement between the plaintiff’s husband and the

Even in, otherwise, circumstances were the Lease valid, the plaintiff’s husband could not independently grant a valid lease over the plaintiff’s right to possession given “the unity of interest which characterises a joint tenancy requiring all joint tenants to concur in any legal
act affecting the subject matter”.

The following authorities were referred to, inter alia:

Under a tenancy-in-common Campbell J held, referring to the legal principle held in State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247; that in a tenancy-in-common, one tenant in common can transfer his or her interest to another person, and lease the interest to another person, but not to the exclusion of the right of possession of the other [tenant in common];


Under a joint tenancy, with reference to the obiter in Doe D. Aslin v Summersett (1830) 1B & Ad 135; Parson v Parsons (1983) 1 WLR 1390; that, the only lease that can be granted in a joint tenancy is a lease granted by both joint tenants.

The conclusion was drawn that the only lease that can be granted is a lease granted by both joint tenants.

The Plaintiff was entitled to issue a writ of possession and proceed with the sale of the Property.

The Defendant was ordered to pay the Plaintiff’s costs of the proceedings.

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