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.