‘He wanted him gone’: Man paying $1 a year to live on $2.2m property fights eviction notice

It is the court case that pitted a prominent retired doctor in his 90s against an investment company over his right to live at a home on the picturesque NSW South Coast for $1 a year.

The NSW Supreme Court was asked to resolve the fight between Dr Kenneth Doust and the company, Riveaux Holdings Pty Ltd, which came to a head in August after he was sent an eviction notice and his electricity was cut off.

Doust, who was made an officer of the Order of Australia in 2005 for his service to medicine, sold his rural property at Central Tilba to the investment company for $2.2 million in December 2020. This was subject to a licence entitling him to occupy part of the land, including a house, for $1 a year until the licence was terminated.

His asking price for the property was originally $2.5 million, but Justice David Hammerschlag said the company had effectively received a $75,000 discount on that price for each of the four years Doust had lived at the property since the sale. That figure would “progressively reduce” the longer the licence continued, he noted.

The term of the licence was for Doust’s lifetime or an earlier date nominated by him, but the company was entitled to serve a notice of termination on him to vacate the property within 30 days if, in the company’s “reasonable opinion”, he had stopped living permanently at the home.

Hammerschlag said that for the company “legitimately and effectively to give notice under [the licence] … the relevant opinion must be arrived at reasonably and also be reasonably based on available material”. The company also needed to afford Doust natural justice, which would have involved a representative speaking to him first.

Doust, a retired country GP and former medical director of the Health Insurance Commission – which previously administered Medibank, now Medicare – brought the Supreme Court proceedings to challenge the termination notice

The judge said Doust, 95, “retains full mental acuity” and was “plainly … a truthful witness”, who was “personally residing permanently in the house”.

Plan to ‘entrap’

The court heard the company conducted “seven separate random spot-checks” on the property overnight and in the morning, and this had helped it form the view Doust was not living permanently at the home.

But Doust gave evidence he was looking after his wife, who has a disability, at a separate residence at that time while her carer was away, and he had returned to his home each day to “attend to his usual tasks, such as reading his emails” and “to get clothes for the next days and to get food for his dog”. This was accepted by the judge.

All his personal possessions, including a number of vintage cars, were at the property, along with his dog.

“I find that the defendant’s conduct in deliberately not alerting the plaintiff to its alleged concerns and in not giving the plaintiff an opportunity to deal with them … was part of an endeavour to entrap the plaintiff and put the defendant in a position to terminate the licence and rid itself of the plaintiff from [the property],” the judge said.

Hammerschlag said Doust gave evidence, not challenged by the other side, that the company had “gathered substantial fencing materials at [the property] and he is concerned that if he leaves for any meaningful period of time, the defendant will block his access”.

“In all the circumstances, his concern is understandable,” the judge said.

The 95-year-old also gave unchallenged evidence that he had a discussion with company director Timothy Byrne last year about leaving the property in return for a payment, but that no agreement was reached.

Company ‘wanted him gone’

Hammerschlag said Byrne “did not want the plaintiff residing in the house – he wanted him gone”.

The judge pointed to “a number of additional circumstances which point compellingly to his motivation to get rid of the plaintiff”, including the failed negotiations for Doust to leave in return for a payment, the presence of the company’s fencing materials on the property, and the fact the electricity was cut off.

The judge concluded that if the company had formed the view that Doust had ceased to reside permanently in the house, “that opinion was neither arrived at reasonably nor reasonably based on available material”.

“Absence for periods, even long periods, is not necessarily inconsistent with permanent residence,” he said.

Hammerschlag made a declaration this month that the company was not entitled to issue notices of termination on August 7 and August 20, and that Doust “has at all times been entitled to and remains entitled to occupy” the slice of the property covered by the $1 licence.

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