Bailey v Bailey

Principles

1. Section 66G(1) provides: 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.
2. There is no doubt that on the face of the register the parties here are co-owners as defined in s 66F(1) of the Act, being equal tenants in common.
3. The principles which apply on an application under s 66G of the Act are well established. Recently in Foundas v Arambatzis [2020] NSWCA 47 at [63], White JA (Bell P and Basten JA agreeing) summarised the relevant principles as follows: Although an order under s 66G is discretionary, such an order is almost as of right, unless on settled principles it would be inequitable to make the order. An order may be refused if the appointment of trustees for sale would be inconsistent with a proprietary right, or the applicant for the order is acting in breach of contract or fiduciary duty, or is estopped from seeking or obtaining the order (Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068 at 1068; Ngatoa v Ford (1990) 19 NSWLR 72 at 77; Williams v Legg (1993) 29 NSWLR 687 at 693; Hogan v Baseden (1997) 8 BPR 15,723 at 15,726-15,727; Tory v Tory at [42]). Hardship or general unfairness is not a sufficient ground for declining relief under s 66G (Hogan v Baseden (1997) 8 BPR 15,723 at 723; Ferella v Official Trustee in Bankruptcy at [36]-[40]).

Ms Bailey's defence

1. On 3 October 2023, Ms Bailey, who has always been self-represented in these proceedings, filed a document styled a "defence" and an affidavit. I accept that the document styled 'Defence' ought to be read as submissions.
2. Ms Bailey resists the orders sought on the following grounds.
3. First, she is in possession of the Property. I accept that there may be some hardship if Ms Bailey was required to vacate the Property, in which she lives, and it were to be sold. However, as the authorities make plain, hardship alone is an insufficient reason for the Court to decline relief sought by a co-owner.
4. Secondly, Ms Bailey asserts that her indebtedness for the loan is the result of an allegedly illegal transfer of 'Hazeldene' and misleading legal advice. 'Hazeldene' is not the property in question in these proceedings. It was the subject of various disputes in the 1990s. In 2017, Rein J delivered a judgment in Bailey v La Hood [2017] NSWSC 1354, in which he touched on those disputes. The solicitor defendants had advised Ms Bailey that she did not have "high prospects" of success in a proposed claim against a second firm of solicitors for the manner in which it conducted proceedings brought by Ms Bailey against a third firm of solicitors. The third firm of solicitors had, in turn, acted for Ms Bailey in a dispute with her father concerning 'Hazeldene'. Rein J rejected Ms Baily's claims that the defendants had given negligent advice, breached their fiduciary obligations or engaged in misleading and deceptive conduct.
5. Ms Bailey claims the outcome of that case led to her incurring the mortgage debt and she informed the Court that she "intend[s] to appeal [this decision] to the Court of Appeal". There is no evidence of any appeal and I also note that any future appeal would be out of time and leave would be necessary to pursue any such appeal pursuant to rule 51.10 of the Uniform Civil Procedure Rules 2005 (NSW). Therefore, as matters currently stand, this consideration is irrelevant to the exercise of the discretion under s 66G.
6. Thirdly, Ms Bailey asserts that Mr Bailey holds his interest in the Property on trust for her sister's estate and herself by reason of the settlement agreement referred to in both her and Mr Bailey's evidence. This is considered further below.
7. Ms Bailey is not legally qualified and has presented her case as best she could. I raised with Mr Bailey's counsel all possible legal bases which might characterise the proprietary arrangements of the parties, taken from authority, cited in his written submissions. He has not sought further time to consider or address on those matters. I am grateful for his assistance.

On what basis does Mr Bailey hold his proprietary interest?

1. Mr Bailey, as noted, is registered on the title to the Property. The law is clear that if there is an inconsistent contractual or proprietary right, then the discretion to order a trustee sale will not be exercised. The usual categories of exception are an agreement concerning the plaintiff's proprietary interest, an estoppel, a trust or other fiduciary relationship. I consider the possibilities that arise on the evidence.

Is there a contract?

1. Ms Bailey asserts that an agreement was reached during the family provision dispute that "included a provision to the effect that [Mr Bailey] would, if required by Glenice and the Estate, sign all documents required to remove him from the title of (among others) the Property".
2. As noted, any documented settlement agreement is not in evidence. However, Mr Bailey's evidence is to a similar effect as Ms Bailey's; he accepts that an agreement was reached, whereby he would relinquish his title to the Property in favour of his sisters. His affidavit evidence is: In about 1996, the family provision proceeding was settled at a mediation. A settlement agreement was entered into. I have been unable to locate a copy of the settlement agreement. I have also made enquiries with Janet and the solicitors who acted for us in the family provision proceeding, and they have also been unable to locate a copy of the settlement agreement. To the best of my recollection, I recall that the settlement agreement included a provision to the effect that I would, if required by Glenice and Annette, sign all documents required for me to be removed from the title of the Property and [two investment properties] ... At no time was I asked by Glenice or Annette to sign any documents to remove me from the title of the investment properties. As I describe further below, I was asked to (and did) sign a guarantee and mortgage over the Property.
3. It therefore appears common ground that Mr Bailey was prepared to transfer his interest in the Property if requested to do so by the defendants.
4. I consider the evidence of both witnesses on the existence and term of the contract admissible. First, it is admissible pursuant to s 48(1)(a) of the Evidence Act 1995 (NSW) in relation to Mr Bailey, being an admission as to the contents of the document. Alternatively, I consider it admissible under s 48(4)(b), because Mr Bailey gave evidence that the document is 'unavailable' to him. In relation to Ms Bailey's evidence, I consider it admissible pursuant to s 48(4)(b). Her situation was made apparent through her affidavit and submissions that she has not been able to obtain all the documents she required for the proceedings. I therefore consider any documented settlement agreement to be "unavailable" to her.
5. I do not accept the submission that it is not possible to construe the nature of the promise Mr Bailey made, because the whole written document is not before the Court. The only term either party refer to is that Mr Bailey would transfer his title in the Property to his sisters on request. In the context of the settlement of a family provision proceedings, it is quite possible this was the only term concerning title to the Property and other terms did not touch on that matter. No party raised a concern with the proper construction of the language the parties have used in their evidence to prove the relevant term of the contract.
6. While not conclusive, I consider the existence of that term can also be tested against the conduct of the parties after the time of alleged formation. Mr Bailey's evidence in cross-examination was that he took no part in the maintenance of the Property as it was a matter for his sisters. Ms Bailey's unchallenged affidavit evidence was that she continued to pay all expenses relating to the Property after the settlement agreement, including that the original mortgage was paid off in 1996.
7. I consider that by reason of the agreement accepted by both parties, Mr Bailey was bound as a matter of contract not to deal with his interest in the Property, other than to transfer his interest to the defendants upon request. Inherent in the promise to transfer his interest upon request, was a promise not to deal with his interest as a beneficial owner. I consider Mr Bailey's attempts to have the Property sold, as he seeks now, would be a breach of that agreement.
8. However, Mr Bailey places considerable weight on the events in 2017, when he agreed to sign the guarantee and mortgage over the Property. There is no doubt that Mr Bailey then became exposed to personal liability as a result.
9. The question is whether that conduct changed the legal nature of the relationship between the parties at that time.
10. Mr Bailey submits that if an agreement is found, it was "varied by conduct" when the defendants sought to borrow money from the Bank and Mr Bailey was asked to sign a guarantee of the loan obligations. His affidavit evidence is: Whilst at the CBA branch, and after initially refusing to sign the guarantee, I had a discussion with Glenice and Annette to the following effect: I said: I'm not prepared to sign the guarantee. Glenice said: Bruce this loan will be paid off in full within 5 years and it is only for a very small amount of approximately $250,000. We do not require you to make any payments, but the bank won't lend us the money unless you guarantee the loan. We will never ask you to make any payment and we promise that it will be paid off within 5 years, if not sooner. I said: I really don't want to sign this guarantee. Everything between us was finished in 1996. Just on that point, why haven't you ever asked me to sign the transfer documents for the Ballina houses [referring to the proprieties in paragraph 12 above] and your unit [referring to the Property]? Glenice said: We [Glenice and Annette] have taken legal and accounting advice on that and we are not required to take you off the title and there is no need for us to keep your name on the title. The discussion then continued during which Glenice repeated a number of times words to the effect of "the loan will be paid off in full within five years" and "you won't have to make any payments".
11. Therefore, it appears that Mr Bailey was prepared to sign the guarantee with the personal obligations it entailed, and did not resist the suggestion that he may be required to transfer his interest in the Property to his sisters. While he may have entered into the guarantee on the representation of Ms Bailey, there is nothing to suggest the Bank was aware of any such representation. Mr Bailey does not claim that he has a legal basis to set aside the guarantee.
12. This position is consistent with a document executed on the same day the guarantee was signed, namely 21 December 2017 (2017 Release). The document was witnessed by someone at the Commonwealth Bank of Australia and is stamped as such. It may be that the Bank was aware of that document at the time of the loan, guarantee and mortgage.
13. A copy of that document is reproduced below. ­
14. I do not accept that, by reason of the settlement agreement, Mr Bailey was obliged to sign the mortgage or the guarantee. It appears he did so on the basis of the 2017 Release, by which the defendants agreed to release him from any liability concerning the Property.
15. Mr Bailey submitted that the entry into the guarantee amounted to a variation by conduct expressed as: Subject to the plaintiff's rights against the land to meet in full any liability arising from the guarantee dated 21 December 2017 and the mortgage dated 21 December 2017, the plaintiff agrees on request to transfer his interest in the property to the defendants.
16. I do not accept that there was any variation of Mr Bailey's restricted ability to deal with his proprietary interest as alleged. The 2017 Release must be read together with the guarantee. The substance of both transactions is consistent with the parties attempting to maintain the status quo - Mr Bailey was signing the guarantee, but was to be indemnified for any costs or liabilities concerning the Property. The 2017 Release does not refer to releasing him from his promise to transfer his interest in the Property whenever his sisters requested. I do not accept it is possible to infer the alleged variation, with all its complexity, from the parties' words and conduct.
17. While as a practical matter, the defendants could not orchestrate a transfer of Mr Bailey's interest unless the mortgage was discharged, or the Bank agreed to release him from the guarantee, Mr Bailey made the submission that such a requirement was a condition precedent to the performance of the obligation to transfer. However, I do not consider it amounts to a relevant variation of his original promise to transfer his interest on request. It merely postponed performance of it. I do not accept that Mr Bailey is now entitled to claim that he is entitled to the beneficial ownership evidenced in the register.

Estoppel?

1. If that conclusion is wrong, then I consider that an estoppel operates to prevent Mr Bailey seeking to engage the s 66G discretion.
2. Recently, the Court of Appeal explained the operation of proprietary estoppel in a domestic context in Kramer v Stone [2023] NSWCA 270. Ward JA, Leeming and Kirk JJA agreeing explained: 76 To put into context various of the grounds of appeal, it is helpful briefly to outline the elements of a proprietary estoppel by encouragement claim, that being the equitable doctrine here invoked by the respondent (see the primary judgment at [30]). 77 Proprietary estoppel by encouragement is one of a number of discrete equitable doctrines falling within the rubric of "equitable estoppel". The elements common to such doctrines are encapsulated in the well-known formulation of Brennan J, as his Honour then was, in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429; [1998] HCA 7 (Waltons Stores v Maher): … [I]t is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs. [My emphasis] 78 While those elements are not to be applied in every case in a "mechanical fashion" (Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 (Doueihi) at [166] (Gleeson JA, with whom Beazley P, as Her Excellency then was, and Leeming JA agreed); and see DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 (DHJPM) at [47] (Meagher JA, with whom Macfarlan JA agreed)), they are commonly regarded as a useful guide or check. It has been said that "if the facts of the case did not measure up to those tests, it would be necessary to think thoroughly about why not" (Austotel at 615-616 (Priestley JA), referred to approvingly in Doueihi (at [166] by Gleeson JA)). 79 There is a recognised need for care in identifying the requisite elements for the different forms of estoppel, as emphasised by Meagher JA in DHJPM. The suggestion of an emergence of "one overarching doctrine of estoppel" (see Mason CJ in Verwayen at 410-413) or that estoppel is a "unified [doctrine] which operates consistently in both law and equity" (see Deane J at 445-446 in Verwayen) not having gained currency (as recognised in this Court in Doueihi at [136] per Gleeson JA, with whom Beazley P and Leeming JA agreed; and see also JD Heydon, MJ Leeming & PG Turner, Meagher, Gummow & Lehane's Equity: Doctrine & Remedies (5th ed 2014, Lexis Nexis Butterworths) (MGL) at [17-055]). Their Honours were there speaking in the context of the doctrines of proprietary and promissory estoppel. However, relevantly, for the present case, there also remains a recognised distinction between the two forms of proprietary estoppel (see Milling v Hardie [2014] NSWCA 163 (Milling v Hardie) at [50]-[52] (Macfarlan JA, with whom Beazley P agreed); Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu v Van Dyke) at [2], [77] (French CJ, Kiefel J, as her Honour then was, Bell and Keane JJ); Priestley v Priestley [2017] NSWCA 155 (Priestley v Priestley) at [7]-[8] (Macfarlan JA); MGL at [17-100]). 80 The line of authority concerning proprietary estoppel by encouragement derives from Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285 (Dillwyn v Llewelyn) and the dissenting judgment of Lord Kingsdown in Ramsden v Dyson (1866) LR 1 HL 129 at 170-171 (Ramsden v Dyson), that judgment cited approvingly by the Privy Council in Plimmer v The Mayor, Councillors and Citizens of the City of Wellington [1884] 9 AC 699 (Plimmer). Ramsden v Dyson itself is the authority from which the separate line of authority concerning proprietary estoppel by acquiescence derives. 81 The foundation for an estoppel by encouragement, as summarised by Kitto J in Olsson v Dyson (1969) 120 CLR 365 at 378; [1969] HCA 3 (Olsson v Dyson) by reference to the decision in Dillwyn v Llewellyn, is conduct which induces a change of position for the worse in reliance thereon. In Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 (Delaforce v Simpson-Cook), Handley AJA at [21], expressed an estoppel by encouragement as one that may arise "when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to [his or her] detriment". 82 The equity does not arise through the mere attempt or promise to make a gift to another of a proprietary interest. As Mason CJ and Wilson J noted in Waltons Stores v Maher at 406, there needs to be "something more" which amounts to unconscionable conduct on behalf of the representor.
3. Further, there must be reliance on that expectation and detrimental change of position as a result.
4. In that case, Ward P (Leeming J and Kirk JA agreeing) offered the following comments on the test for "reliance" in proprietary estoppel cases. [91] There is no presumption of reliance; rather, reliance is a fact to be found (Sidhu v Van Dyke at [58] ); and it is not necessary that the relevant assumption be the sole inducement operating on the mind of the party setting up the estoppel (Sidhu v Van Dyke at [71] ; it need only be a "contributing cause" at [71]-[73] (French CJ, Kiefel, Bell and Keane JJ); [90] (Gageler J)). [92] The test for reliance has been variously expressed. On the one hand, it has been said that a plaintiff must show that he or she "would have acted differently" but for the assumption (see Gageler J in Sidhu v Van Dyke at [90] ff; Darke J in Stone v Stone [2014] NSWSC 1655 at [44] -[46] ; this Court in Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500; [2017] NSWCA 106 (Miller Heiman) at [37]-[49] (Macfarlan JA, with whom McColl JA and Sackville AJA agreed); White J in Priestley , and Macfarlan JA, on appeal, in Priestley v Priestley ). On the other hand, it has also been said that the question is whether the promise or representation was "a contributing cause" or "influenced" the plaintiff's action (Edelman J's reading of Sidhu v Van Dyke in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; (2015) 329 ALR 1 at [776] -[779] ; Emmett AJA in Priestley v Priestley at [136] ; K Handley, "Recent Cases" (2017) 91 Australian Law Journal 812). In E Co v Q [2018] NSWSC 442 , at first instance I noted my view was that the better reading of the Sidhu v Van Dyke "contributing cause" test is that propounded by Gageler J (Sidhu v Van Dyke ), White J (Priestley NSWSC), and Macfarlan JA (Miller Heiman; Priestley v Priestley ). I remain of that view.
5. This is consistent with what the Court of Appeal observed in Trentelman v Owners - Strata Plan No 76700 (2021) 106 NSWLR 227 at [156]: [156] It is correct, as the appellant pointed out, that reliance is a question of fact and the onus to prove reliance at all times remains on the representee: Sidhu v Van Dyke at [58], [61]. However, the plurality emphasised in that case at [71]-[73] that it was not necessary that the conduct of the party estopped need be the sole inducement. They accepted that the question was whether the conduct was so influenced by the encouragement or representation that it would be unconscionable for the representor thereafter to insist on its strict legal rights: citing Amalgamated Investment & Property Co Ltd (in liq) v Texas Commerce International Bank Ltd [1982] QB 84 at 104-105 (Robert Goff J). [157] That is not to suggest that in an appropriate case an inference cannot be drawn. The question is what inference can be drawn from all of the evidence, including the evidence given in cross-examination, and in considering the drawing of the inference by virtue of the process of reasoning suggested by Wilson J in Gould v Vaggelas, the court must attend closely to all the evidence that is adduced that bears upon the question: Sidhu v Van Dyke at [64], citing Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [143].
6. Here, I find that Mr Bailey, as registered proprietor encouraged the defendants to alter their position in the expectation of obtaining Mr Bailey's proprietary interest in the Property.
7. They agreed to settle the family dispute on the basis, inter alia, of that encouragement, and solely contributed to the maintenance and other costs of the Property, without ever looking to Mr Bailey for contribution based on his legal entitlement. While somewhat vague, Ms Bailey's unchallenged and uncontested affidavit evidence is that she suffered financially because of Mr Bailey not contributing. Mr Bailey also acted consistently with that arrangement and he stated in cross-examination in effect that it was a matter for the defendants how they maintained the Property.
8. I consider that conduct gave rise to a proprietary estoppel to the effect that it would be unconscionable for Mr Bailey to assert his legal rights as a registered co-owner for the purposes of s 66G.
9. I do not accept that the arrangement between the parties changed with the creation of the loan, guarantee and mortgage for the reasons identified in relation to the argument about an agreement. I consider there was an ongoing arrangement between the parties that Mr Bailey would transfer his interest in the Property when requested, and when the defendants could obtain the Bank's consent or discharge of mortgage.

Trust?

1. At most, in 1982 Mr Bailey contributed an unknown sum towards the deposit of the Property in question. The highest his evidence of such contribution rises is his recall in cross-examination that at the beginning he contributed something towards the deposit. He had no records to demonstrate such contribution. Ms Bailey's evidence was that Mr Bailey did not contribute anything. While such a situation may have given rise to a resulting trust in the defendants' favour, there is no dispute that Mr Bailey has since paid towards the more recent mortgage debt since 2022 and to date.
2. However, based on the above, it is unnecessary to decide whether Mr Bailey holds his proprietary interest by way of express or resulting trust for his sisters.

Discretion

1. As noted above, the discretion to order a trustee sale will not be exercised, if it would be inconsistent with a contractual or equitable right.
2. While the whole history of the relationship between the parties giving rise to the current situation is not in evidence, based on the above, this is not an appropriate situation in which to exercise the discretion.
3. Mr Bailey holds his proprietary interest in the Property pursuant to an agreement or on the basis of an estoppel, both of which are inconsistent with the application for trustee sale, and contrary to the wishes of the defendants, who do not want the Property sold. To order the appointment of trustees for the sale of the Property would therefore be inconsistent with the parties' legal or equitable positions.
4. I do not accept that Mr Bailey's potential right to subrogation is relevant to the discretion. At no time has Mr Bailey been entitled to the rights of the mortgagee by reason of subrogation. In New South Wales, the law is clear that a right of subrogation only arises when the whole of the principal's obligations to a creditor have been discharged by a guarantor. For example, in In the matter of Fellmane Pty Ltd (in liq) [2020] NSWSC 595 at [46]-[48], Gleeson J stated: In Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44 (Bofinger), the High Court observed at [8] that it is the ultimate liability of the principal debtor which provides a foundation for the application of subrogation in aid of the surety. Thus, where a claim to the benefit of securities held by the creditor is made by a surety, the equity of subrogation is derived from the obligation of the principal debtor to indemnify the surety. The Court in Bofinger at [4] approved the statement of the right of subrogation in favour of a surety by Sir Andrew Morritt V-C in Liberty Mutual Insurance Co (UK) Ltd v HSBC Bank plc [2001] Lloyd's Rep Bank 224 at 225; affd [2002] EWCA Civ 691: The right operates so as to confer on the surety who has paid the debt in full the rights against the debtor formerly enjoyed by the creditor or by imposing on a creditor the obligation to account to the surety for any recovery in excess of the full amount of his debt. [emphasis added] Similarly, in Austin v Royal (1999) 47 NSWLR 27; [1999] NSWCA 222 at [19], this Court (Cole AJA, Meagher and Handley JA agreeing) said: The theory underlying the equitable concept of subrogation is that a creditor, having no use for a security over his debtor's assets because the creditor's debts have been paid and obligations discharged by the guarantor, is obliged to transfer that security to the guarantor who may then enforce it to recover the moneys from the debtor which he, the guarantor, has paid to the creditor. … [Emphasis added.] See also: Buckeridge v Mercantile Credits Ltd (1981) 147 CLR 654 at 668-669; [1981] HCA 62.
5. Mr Bailey does not suggest he has paid the whole of the defendants' debt and discharged the Bank's mortgage. Had he wanted to stand in the shoes of the Bank and enforce the proprietary rights of a mortgagee, then he would need to have paid the whole of the Bank debt and thereby have obtained the right of subrogation.
6. I consider that making orders for a trustee sale would, in effect, accelerate any future right to subrogation, and tells against the discretion being exercised.

Orders

1. I am therefore not satisfied that s 66G orders can be made in the circumstances.
2. However, Ms Bailey has raised no defence to Mr Bailey's claim to be indemnified by reason of him making mortgage repayments as guarantor. Merely because Ms Bailey alleges that Rein J erred in 2017, and a different result would have led to the defendants avoiding the need for the Bank loan, there is no allegation that the Bank has acted improperly in advancing the loan sum and seeking repayment in accordance with the loan, guarantee and mortgage.
3. Therefore, even if Ms Bailey's foreshadowed appeal from Rein J's judgment is successful and Ms Bailey is entitled to payment from third parties, that would note remove her liability to the Bank, it would merely provide a means of discharging that obligation.
4. Therefore, I consider that Mr Bailey is entitled to a declaration in the form of the proposed orders handed to the Court numbered one, it's appropriate to give judgment for Mr Bailey against the defendants in the sum of $73,387.
5. While Mr Bailey has not been entirely successful in his claim, I consider that he is entitled to his costs. I therefore order that the defendants pay Mr Bailey's costs.
6. The summons is otherwise dismissed.

Amendments 20 February 2024 - Coversheet amended to accurately reflect the solicitor on the record for the plaintiff. 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: 20 February 2024