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[2012] NSWSC 735
Supreme Court of NSW
2012-07-02
Original judgment source is linked above.
Pty Ltd [2011] NSWSC 186 Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341 Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151; (2005) 219 ALR 692 McNamara, Re and the Conveyancing Act (1961) 78 WN (NSW) 1068 Matsen v Matsen [2008] NSWSC 135 National Australia Bank Ltd v Pasupati [2011] NSWSC 540 Ngatoa v Ford (1990) 19 NSWLR 72 NSW Trustee & Guardian v Gregory [2012] NSWSC 681 Steinecke v Wayne [2011] NSWSC 428 Texts Cited: Nevill and Ashe, Equity Proceedings With Precedents (New South Wales), (1981) Butterworths Category: Principal judgment Parties: Jacqueline Maisie Buckett (first Plaintiff in 2011/41004 and first Defendant in 2011/129997) Terry James Buckett (second Plaintiff in 2011/41004 and second Defendant in 2011/129997) Marjorie Kent (first Respondent in 2011/41004 and Plaintiff in 2011/129997) Representation: Mr L Ellison SC (Plaintiffs in 2011/41004) No appearance for Defendant in 2011/41004 No appearance for Plaintiff in 2011/129997 Mr L Ellison SC (Defendants in 2011/129997) Roberts Mann Solicitors (Plaintiffs in 2011/41004) No appearance for Defendant in 2011/41004 No appearance for Plaintiff in 2011/129997 Roberts Mann Solicitors (Defendants in 2011/129997) File Number(s): 2011/41004; 2011/129997
The Claims 1HIS HONOUR: There are currently before me two separate proceedings involving the same parties. The first, which was commenced by a Summons filed on 8 February 2011, involves a claim in which the Plaintiffs, Jacqueline Maisie Buckett and Terry James Buckett, seek orders under s 66G of the Conveyancing Act 1919, in respect of land situated at Kurrajong New South Wales ("the subject land") and costs. Initially, there was no Defendant named in the Summons. However, by amended Summons filed on 22 March 2011, Marjorie Kent was named as the Defendant. (I shall refer to these proceedings as "the first proceedings".) 2On 12 April 2011, a firm of solicitors filed an Appearance on behalf of Marjorie Kent, in the first proceedings. 3In the second proceedings, Marjorie Kent filed a Summons on 20 April 2011, and an amended Summons on 24 May 2011 and, apparently, again on 10 June 2011, in which amended Summons she sought a family provision order out of the estate, or notional estate, of her brother, John William Buckett ("the deceased"), under Chapter 3 of the Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982, which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. 4The Defendants named in the second proceedings are Jacqueline Maisie Buckett and Terry James Buckett, the executors named in the Will of the deceased, to whom Probate was granted. (I shall refer to these proceedings as "the second proceedings".) 5Without any undue familiarity, or disrespect intended, and for convenience, hereafter, I shall refer to each of the parties, and any other family members, after introduction, by her, or his, given name, in these reasons rather than to the role each plays in the different proceedings. 6On 12 October 2011, an order was made, by the Registrar, by consent of the parties, that both proceedings be heard together, with the evidence in one being evidence in the other and that both proceedings be heard by an Associate Judge of the court. 7On 22 November 2011, a consent order was made in each of the proceedings standing it over to the Registrar, in Chambers, "for allocation of July 2012 hearing dates". Counsel for each of the parties signed the consent order. 8I am informed that on 25 November 2012, both matters were listed for hearing on 2 and 3 July 2012, and that the legal representatives of the parties were advised accordingly. 9As will be obvious from what I have said above, Marjorie was represented in each of the first and the second proceedings by a firm of solicitors. However, on 1 May 2012, those solicitors filed a Notice of Intention to file a Notice of Ceasing to Act. On 16 May 2012, those solicitors filed a Notice of Ceasing to Act in each of the proceedings. 10The first Notice disclosed that until the Notice of Ceasing to Act was filed and served, "any document to be served on [Marjorie] in the proceedings will be taken to have been served on you if a copy of it is left at or posted to xxxx Gregory Street, South Coogee ...". The second Notice stated that "the residential or business address of [Marjorie] last known to the solicitors" was the address of the subject land. 11There was some evidence (to which I shall return), which demonstrates that on, or about, 28 November 2011, Marjorie's solicitors gave notice that each of the proceedings was listed for hearing on 2 and 3 July 2012.
The Hearing 12The matters were called at about 10:00 a.m. this morning, at which time Mr LJ Ellison SC appeared for Jacqueline and Terry. There was no appearance, in either the first, or the second, proceedings, by, or on behalf of, Marjorie. At about 10:00 a.m., Marjorie's name was called outside the Court without any response. 13Mr Ellison SC informed me that he wished to proceed with the first proceedings and that since Marjorie, as the Plaintiff, was not present in the second proceedings, he would simply seek an order that those proceedings be dismissed. 14Mr Ellison SC first read an affidavit of service of Thomas Pfeifle, a licensed commercial agent, who deposed to having served the amended Summons in the first proceedings, filed 22 March 2011, on Marjorie, on 26 March 2011, at an address at South Coogee (being the address referred to in the Notice of Intention to file a Notice of Ceasing to Act to which I have earlier referred). 15Senior counsel then read an affidavit of Mr Pfeifle sworn 18 June 2012, in which Mr Pfeifle deposed to having left a letter dated 13 June 2012, from Roberts Mann, Solicitors, to Marjorie, by placing it under the front door of the same address at South Coogee. Unfortunately, a copy of the letter referred to was not annexed to the affidavit. 16Mr John Alexander Mann, solicitor, then gave oral evidence identifying a copy of the letter, the original of which had been forwarded, by his firm, to Mr Pfeifle, for service on Marjorie. The copy letter dated 13 June 2012 that was identified was then tendered. 17The letter that Mr Mann identified was in the following terms: "We refer to our letter to you of 22 December, 2010. We confirm that your case will be heard by the Supreme Court on 2nd and 3rd July, 2012. Our client will be asking that the hearing of the case proceed on those days. If you do not attend whether in person or with your legal representative, our client will ask the court to proceed in your absence and judgment may be given against you. We also put you on notice that we require all persons who have sworn Affidavits in your claim to attend Court for cross examination on those days." 18Although the address on the letter was the wrong address at South Coogee, Mr Mann's oral evidence and the contents of Mr Pfeifle's affidavit, satisfy me that Mr Pfeifle left the original letter at the right address. 19Senior counsel also relied upon some email correspondence, which Mr Mann identified, and which was also tendered, apparently passing between Marjorie and his firm. He stated that on 22 June 2012, he had also sent a copy of the letter dated 13 June 2012 to the e-mail address shown on the e-mail from her. 20Finally, senior counsel tendered a copy of an email, dated 6 June 2012, from the former solicitors acting for Marjorie, to Mr Mann, in which it was written: "Dear Mr Mann, I refer to your letter dated 5 June 2012 We sent an email to Mrs Kent's daughters on 28 November 2011 notifying them of the hearing dates." 21Whilst the content of this last email does not establish that the notice was given to Marjorie directly, it is some evidence from the firm of solicitors formerly representing Marjorie, of having communicated the dates for hearing to persons who they believed would communicate that information to Marjorie. 22In the circumstances, I was satisfied that I was able to proceed with the hearing of both proceedings. At about 11:00 a.m. shortly before I went off the Bench to consider the evidence that had then been read, and stood the proceedings down until 2:00 p.m., when I hoped to deliver judgment, I had Marjorie's name called outside the court once again. On this occasion, also, there was no response.
The Background 23The following facts appear uncontroversial. 24The deceased died on 26 June 2010. He was then aged about 82 years, having been born in 1928. 25The deceased left a Will that he made on 19 November 2003 and a codicil to that Will that he made on 21 January 2009, Probate of which Will and codicil was granted, by this court, to Jacqueline and Terry, on 25 October 2010. 26The deceased's codicil, relevantly, provided for a devise of the deceased's interest in the subject land to Jacqueline absolutely. At the date of his death, the deceased was a registered proprietor, with Marjorie, as tenants in common in equal shares, of the subject land. (Marjorie had inherited the one half share of the subject land from her other brother, James Austin Buckett, who died in about 1994.) 27A copy of the certificate of title of the subject land that was tendered revealed Marjorie as a registered proprietor of a one-half share and that Terry and Jacqueline, as joint tenants, are the registered proprietors of the other one half share, and that Marjorie holds her one half share and that Terry and Jacqueline hold their one-half share, together, as tenants in common. 28Marjorie had lived on the subject land for many years until about September 2009. She has not resided on the subject land since that time. In the opinion of Jacqueline, the subject land is now uninhabitable. 29Therefore, the South Coogee address set out in [10] is likely to be Marjorie's last known address. 30No other person occupies the subject land. 31Jacqueline and Terry wish to sell the subject land in the course of the administration of the deceased's estate and Marjorie has refused or neglected to consent to that sale. 32In an affidavit sworn on 8 July 2011, Glenn Richard Walters, a solicitor holding a full practising certificate consented to being appointed as one of two trustees for sale of the subject land. In that affidavit, Mr Walters also sets out his experience in conveyancing, in matters involving the appointment of trustees for sale, and also his personal experience of selling and purchasing real estate. 33Mr Mann gave evidence that Mr Walters informed him, orally, on 27 June 2012, that he remained prepared to act as a trustee for the sale of the subject land. 34In an affidavit sworn on 15 July 2011, Roderick Alexander Ian Storie, a solicitor holding a full practising certificate, consented to being appointed as one of two trustees for sale of the subject land. In the affidavit, Mr Storie also sets out his experience in conveyancing and also of selling and purchasing real estate. 35By letter dated 28 June 2012, addressed to Mr Mann, Mr Storie confirmed his continued agreement to act as a trustee for the sale of the subject land. 36Prior to my adjourning the matter, there was no affidavit of fitness of either proposed trustee read. Nor was there any affidavit verifying that the proposed trustees executed each consent. I referred senior counsel to a decision of Brereton J in Steinecke v Wayne; re estate of Henry Herbert Stricker and Karl Heinz Lindner [2011] NSWSC 428 (at [15] and [16]). 37Prior to delivering judgement, senior counsel sought leave to file in Court two affidavits of Mr Mann, each affirmed 2 July 2012, in which he deposed to his knowledge of the reputation of each of Mr Storie and Mr Walters. In the second affidavit, Mr Mann stated that he believed each of Mr Walters and Mr Storie "to be fit and proper persons to be appointed trustees" of the subject land. 38As I did not think that Marjorie would be prejudiced by leave being granted to the filing and reading of these affidavits, I granted leave and read them in the first proceedings. 39Mr Ellison SC did not read any of the evidence in the second proceedings. As stated, he indicated that it was not necessary to do so as he sought an order that the second proceedings be dismissed with costs.
Determination 40Uniform Civil Procedure Rules 2005 ("UCPR"), rule 29.7, relevantly provides: "29.7 Procedure to be followed if party is absent (1) This rule applies when a trial is called on. (2) If any party is absent, the court: (a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or (b) may adjourn the trial. ... (4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings. (5) Subrules (3) and (4) do not limit the court's powers under subrule (2)." 41In relation to this rule, I said in NSW Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681: "18The clear purpose of UCPR rule 29.7 is the efficient dispatch of court business. However, in dispatching court business, I cannot ignore the right of a defendant to be informed, or, at least, to be made aware, of a trial date. It is a fundamental principle that a party who may be adversely affected by the making of court orders has a right to be heard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, in which Rich J said (at 589): "It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside, and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside. ... In such a case there has been no valid trial at all." 19In the circumstances, the first issue to address is whether I am satisfied that it is appropriate to proceed in the absence of the Defendant or of anyone representing her. 20A party is "absent" within the meaning of the rule, when the trial is called on, only if it can be shown that he, or she, has knowledge, or notice, of the date of the trial, and is not physically present, or not represented. In other words, before the rule can be relied upon, there should be proof that the absent party has been given reasonable notice of, or has knowledge of, the date of the trial. 21Having read the evidence of service, some of which I have set out, I am now satisfied that all reasonable attempts have been taken to notify the Defendant of the Plaintiff's intention to obtain orders when the matter was listed before me today. Overall, I am satisfied that attempts have been made, fruitlessly, to get in contact with the Defendant, to provide her with the documents to be relied upon, and to allow her to participate in the proceedings. The Plaintiff has also established that all reasonable attempts to notify the Defendant of the date for the trial and that it was to then proceed have been made. 22Finally, on the question, I have not forgotten what I said in Smirski v Macander [2010] NSWSC 929 at [34]: "34 It is to be remembered that the primary considerations on whether to proceed ex parte concern whether there is urgency; whether irreparable damage would flow from making an ex parte order; whether hardship would flow to a party against whom an order is made and whether such an order can be set aside: Ndjamba v Toyota Finance Australia Ltd [2010] NTSC 23, per Blokland J at [8]." 23No particular urgency is disclosed. However, the deceased died 18 months ago and the Plaintiff cannot finally administer or distribute the estate until the deceased's interest in the Property is realised. The proceedings were commenced over six months ago and significant attempts have been made to have the Defendant take part. Finally, because of the form of orders proposed, the Defendant will not suffer irreparable harm if orders are made today. She will be allowed an opportunity to consider the orders and take such steps as she is advised. Whilst, of course, there may be some hardship for the Defendant in having to move out of the Property, there is no evidence that she would suffer such hardship. In any event, in my view, she has had some time to arrange her affairs." 42Having considered all of the evidence, I am satisfied, that sufficient notice of the hearing dates was given to Marjorie and that, in the circumstances, both the first and the second proceedings should continue in her absence. No application for an adjournment of the trial of either proceedings having been made by, or on behalf of, Marjorie, and being satisfied that she was, or should have been, aware of the hearing date, and also that the trial would be proceeding, there is no ground on which it would be appropriate for the court to adjourn the trial. Thus, there would be no point in the Court, of its own motion, adjourning the matter, and I have proceeded to hear the matters in the absence of Marjorie. 43Jacqueline and Terry must prove the claim so far as the burden of proof lies upon them and if they prove their claim, they are entitled to the relief claimed and such other relief as is consistent therewith: Re Anton Fabrications (NSW) Pty Ltd; Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186, per Ward J, at [11]; NSW Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory at [25]. 44So far as is relevant, s 66G of the Conveyancing Act, provides: "(1) Where any property (other than chattels) is held in co-ownership the court may, on the application of any one or more of the co-owners, appoint trustees of the property and vest the same in such trustees, subject to incumbrances affecting the entirety, but free from incumbrances affecting any undivided shares, to be held by them on the statutory trust for sale or on the statutory trust for partition. (1A) Subject to this section, on the death of a co-owner, any proceedings by or against the co-owner under subsection (1) (whether instituted before or after the commencement of this subsection) survive against or for the benefit of the estate of the deceased co-owner despite, in the case of a joint tenancy, the rule of survivorship. (2) Where the entirety of the property is vested in trustees or personal representatives, those trustees or personal representatives shall, unless the court otherwise determines, be appointed trustees on either of such statutory trusts, but subject, in the case of personal representatives, to their rights and powers for the purposes of administration. (3) (a) Where the entirety of the property is vested at law in co-owners the court may appoint a trust corporation either alone or with one or two individuals (whether or not being co-owners), or two or more individuals, not exceeding four (whether or not including one or more of the co-owners), to be trustees of the property on either of such statutory trusts. (b) On such appointment the property shall, subject to the provisions of section 78 of the Trustee Act 1925, vest in the trustees. ... (6) In relation to the sale or partition of property held in co-ownership, the court may alter such statutory trusts, and the trust so altered shall be deemed to be the statutory trust in relation to that property. (7) Where property becomes subject to such statutory trust for sale: (a) in the case of joint tenancy, a sale under the trust shall not of itself effect a severance of that tenancy, (b) in any case land shall be deemed to be converted upon the appointment of trustees for sale unless the court otherwise directs. ..." 45Thus, the court's jurisdiction to appoint trustees depends upon the subject land being held in "co-ownership" and, generally, an application being made by one, or more, of the co-owners. 46I am satisfied, in this case, that Jacqueline and Terry are co-owners, with Marjorie, of the subject land. 47Whilst an order under s 66G is discretionary (see, for example, Matsen v Matsen [2008] NSWSC 135 at [57], per Hamilton J; National Australia Bank Ltd v Pasupati [2011] NSWSC 540, at [20], per Buddin J), the courts have declined to offer any comprehensive definition of the kinds of matters which would lead the court to decline to grant such an order. 48However, in Ngatoa v Ford (1990) 19 NSWLR 72, at 75, Needham J noted that in Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068, Myers J had referred to "some proprietary right, or some contractual or fiduciary obligation with which an order for sale would be inconsistent". 49I have set out some relevant cases in NSW Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory at [37] - [44]. 50In this case, no evidence has been advanced going to any matter that would dissuade me from appointing trustees and ordering the sale of the subject land. 51The court has a complete discretion as to whom it will appoint to conduct a sale. In Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151; (2005) 219 ALR 692, Young CJ in Eq (as his Honour then was) said at [88]: "A procedure has grown up in connection with sales ordered by the Court. The Court has a complete discretion as to who it will appoint to conduct a sale, being guided by how the Court considers it most beneficial to the estate, though ordinarily the conduct of the sale is given to the plaintiff even though the plaintiff may not have the greatest interest in the property; see eg Dixon v Pyner (1850) 7 Hare 331; 68 ER 135; Dale v Hamilton (1853) 10 Hare Appendix 1 vii; 68 ER 1116 and Murray v Geoffroy (1918) 18 SR (NSW) 259." 52In relation to the identity of the trustees for sale, where there is no consent, in Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341, Young CJ in Eq (as his Honour then was) said at [21]: "When deciding upon trustees for sale, where there is no consent, four factors usually need to be considered by the court. These are, in no particular order of importance; (1) the principle that the court tends to prefer the preference of the person with the greater interest in the land. ... (2) the trustees should be independent and as free from conflict of interests as possible. ... (3) the trustees, particularly where they have more active duties than merely to sell a piece of real estate, should have the appropriate skill, expertise and experience; and (4) the court should endeavour to get the best value for the parties' money and see that as between two equally alternative proposals the cheaper is preferred." 53Subject to one matter that it was necessary for me to consider, in my opinion, it is appropriate to appoint the trustees sought by Jacqueline and Terry. 54The matter to which I refer is that the practice of the court is to require that a consent to act as trustee be verified: "verification of a consent involves an affidavit by the witness verifying and deposing, inter alia, that the witness was present and saw the named trustee execute the annexed consent, and that the signature of the trustee or trustees and of the witness appearing on the consent 'are in the proper handwriting of the said [name of trustee] and myself respectively' [see Nevill and Ashe, Equity Proceedings With Precedents (New South Wales), p.283]": Steinecke v Wayne at [15]. 55Although there was no verified consent to act as trustee filed by either of them, an affidavit by each of the proposed trustees was filed, each consenting to being appointed. There was also the evidence set out in [32] and [34] above. In my view, in all the circumstances, that is satisfactory compliance with the practice of the Court. 56Following delivery of these reasons, Mr Ellison SC sought an order under s 66I of the Conveyancing Act, which relevantly provides: "(1)On any sale under a statutory trust for sale the court may allow any of the co-owners of the property to purchase whether at auction or otherwise on such terms as to non-payment of deposit, or as to setting off or accounting for the purchase money or any part thereof instead of paying the same, or as to any other matters as to the court seems reasonable." 57There is no reason why any of the co-owners should not be entitled to purchase the subject land if she, or he, wishes to do so. 58Mr Ellison did not seek any terms as to non-payment of deposit, or as to setting off, or accounting for, the purchase money, or any part thereof, instead of paying the same, or as to any other matters. 59The orders that the Court makes are: (a)Order that Glenn Richard Walters and Roderick Alexander Ian Storie be appointed as trustees for sale of the property in Folio Identifier xxxx ("the property") and the property vest in such trustees subject to incumbrances affecting the entirety, but free from incumbrances affecting any undivided shares to be held by them on the statutory trust for sale under s 66G of the Conveyancing Act. (b)Order that from the proceeds of sale of the property, the trustees may deduct the commission and other expenses of the real estate agent, the legal expenses of the trustees in respect of the sale, the legal expenses of transferring the property to the purchaser, and the costs of these proceedings as ultimately determined, and that the portions of the balance payable to the parties be determined by the trustees in accordance with the co-ownership of the property. (c)Order pursuant to s 66I of the Conveyancing Act that on any sale of the property, the co-owners may purchase the property, whether at auction or otherwise. (d)Order that leave be reserved to the trustees to apply for any directions regarding the sale of the property or the distribution of the proceeds of sale. (e)Order that, subject to order (j), Marjorie Kent pay the costs of the proceedings commenced by Jacqueline Maisie Buckett and Terry James Buckett from her share of the proceeds of sale of the property. (f)Order that a copy of these Orders be sent, by registered pre-paid post, to Marjorie Kent, at the address at South Coogee, postage to be no later than 4:00 p.m. on Thursday 5 July 2012. (g)These orders shall be entered forthwith with the details of the complete title reference and address of the property being inserted. (h)In proceedings 2011/129997, being satisfied that when the trial was called on, Marjorie Kent, the Plaintiff did not appear, and that Jacqueline Maisie Buckett and Terry James Buckett, the Defendants, did appear, order that the proceedings be dismissed. (i)In proceedings 2011/129997, order that, subject to Order (j), the Plaintiff pay the Defendants' costs limited to those costs not already obtained in relation to the proceedings in which relief is sought under s 66G of the Conveyancing Act. (j)In relation to the costs of each of the proceedings, the costs assessor assessing the costs payable by Marjorie Kent should determine whether the fees of senior counsel were warranted and, if not, the amount of counsel's fees that is reasonable in all the circumstances.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2012
Application by Buckett; Kent
Buckett
[1944] HCA 5
[2010] NTSC 23
(2005) 219 ALR 692
(1990) 19 NSWLR 72
(1944) 68 CLR 571