Blanda v Forno [2006] NSWSC 1396 | Case summary

2627/06 SALVATORE BLANDA v DE ANNE LEE FORNO JUDGMENT 1 HIS HONOUR: Simon Blanda died prematurely on 1 September 2001. He left behind, from his birth family, his parents, a brother, and a sister. He also left behind a de facto wife, De Anne Forno. There was litigation in the Probate List between those that Mr Simon Blanda had left behind, about entitlement to administration of his estate. In that litigation Ms Forno was the plaintiff, and the Blandas were the defendants, and cross-claimants. There was a hearing before his Honour Justice Palmer which eventually settled on 20 December 2002. The Terms of Settlement 2 The terms of the settlement involved the making of a declaration that Ms Forno was the de facto spouse of the late Mr Blanda and that Mr Blanda had died intestate. 3 There were orders for the grant of letters of administration to Ms Forno, and for releasing of rights that various of the members of the birth family of Simon Blanda might have had against the estate. There were orders for certain items to be returned to the plaintiff simultaneously with a particular transfer of real estate, for the amended statement of claim to otherwise be dismissed, and for the cross-claim to be dismissed. 4 There was an order for the defendants to bear their own costs of the proceedings. There was also an order 11 that read "Subject to par 13(i)(c) hereof, the Plaintiff bear her own costs of the proceedings". 5 Next, there was, in clause 13, the noting by the Court of an agreement between the parties. Insofar as it is relevant for present purposes, that agreement was: "(i) Within 28 days of the grant of Letters of Administration or such other time as the parties agree, the real estate, situated at 22 Percy Street, Fairfield, shall be transferred by the Plaintiff to the Defendants, as tenants in common in equal shares, or to such of them as they agree and direct the Plaintiff in writing, subject to the Defendants paying to the Plaintiff, or as she may, in writing, direct, simultaneously with the transfer to them: (a) the amount due to the Commonwealth Bank and secured by Mortgage on that real estate at the date of transfer, for the purpose of discharging the said Mortgage; (b) all costs of, and incidental to, the transfer of that real estate, including stamp duty, CGT and legal costs; (c) $30,000 on account of her own costs of these proceedings." Factual Background to this Dispute 6 A significant asset of the estate was the house that was located at 22 Percy Street, Fairfield. That house had been transferred to Mr Simon Blanda by five members of the Blanda family (including himself) for a consideration of $80,000. That leads to the conclusion that the transfer to Simon Blanda had taken place on the basis that the value of the house, at the time of the transfer, was $100,000. 7 For the purpose of the inventory of property, for the grant of letters of administration, the house was valued at some $270,000. The total assets, including the house, as disclosed in that inventory, were estimated to be a little under $648,000. The evidence does not make clear the totality of the liabilities of the estate, but it is clear that the house was subject to a mortgage to the Commonwealth Bank at the time of death. 8 The letters of administration were issued by the Court on 2 January 2003. 9 There is a difficulty of construction of the agreement contained in clause 13(i). It relates to the obligation of the defendant to pay, simultaneously with the transfer of the real estate, the costs of and incidental to the transfer of the real estate including stamp duty, CGT and legal costs. 10 Payment of the stamp duty does not present a practical difficulty, because the value of the property is able to be assessed, and stamp duty paid in relation to that assessed value, before the transfer takes place. However, the only way in which it would be possible for the defendants in the Probate List litigation to pay, simultaneously with the transfer, the costs, including CGT and legal costs connected with that transfer, would be if they were informed, prior to the transfer, how much those costs were to be, or, alternatively, if they made an estimate, paid the amount they estimated, and their estimate was to turn out to be right. That alternative construction seems to me to be an unlikely and impractical one, and not what the parties intended. In my view, given that the amount of the legal costs in particular is something peculiarly within the knowledge of the defendant, there is an implied obligation on the defendant to inform the plaintiff, prior to the settlement, what those legal costs are reasonably estimated to be. I return to the construction of this provision later. 11 Notwithstanding the 28-day period that had been agreed, there were considerable delays in achieving a settlement of the conveyancing transaction. Indeed, the conveyancing transaction has only settled this year. The solicitors for Ms Forno were notified, well before December 2003, that it would be Mr Salvatore Blanda who would be nominated to take the transfer under clause 13. The settlement this year arose because Mr Salvatore Blanda, the plaintiff in the present action, lodged a caveat against the title to the Fairfield property, at a time when Ms Forno was threatening to sell it. That resulted in Ms Forno's lawyers serving a lapsing notice, and, while the caveat was extended, it came to be extended on terms requiring the plaintiff to commence an action against Ms Forno to seek specific performance of the agreement contained in clause 13 of the terms of settlement. 12 An order for specific performance of that agreement was ultimately made on 28 June 2006. It was made on the basis that the transfer was to occur upon the plaintiff, (a), discharging the sum that was then owed to the Commonwealth Bank for the mortgage of the property; (b), paying to the defendant $30,000 which was the principal of the amount that was owing under clause 13(i)(c) of the agreement noted in the order; and (c), providing a photocopy of a receipt for payment into Court of $40,000. That $40,000 was paid into Court as security for any further sum which might be found to be payable by the plaintiff to the defendant in accordance with the agreement. The plaintiff paid it into Court without admission that any sum at all was owing. 13 The solicitors for the parties have been unable to agree on what amounts are owing between the plaintiff and the defendant. There are three substantial issues that divide them. Interest on $30,000 14 One of them is that the defendant has at all times claimed that she is entitled to be paid interest on the $30,000, that was agreed to be paid under clause 13(i)(c). The evidence shows that she has actually parted with the $30,000, for payment of her own costs of the Probate List proceedings. Thus, she has been out of pocket by that amount for a considerable period of time. 15 There are two different ways in which she has asserted an entitlement to be paid interest on the $30,000. One used to be that there is a judgment to that effect and hence that it bears interest under section 95 Supreme Court Act 1970, or its analogue section 101 Civil Procedure Act 2005. Today, Mr Freeman, for the defendant, conceded, in my view rightly, that the obligation to pay $30,000 was not a judgment debt. It is true that clause 11 of the order is an order of the Court, but what it in substance means is "Except to the extent that the parties have agreed otherwise in clause 13(i)(c), the parties are to bear their own costs". Recognising that exception in the order made by clause 11 does not convert clause 13(i)(c) into an order. 16 The second way in which interest might become payable is under section 94 Supreme Court Act, or its analogue section 100 Civil Procedure Act. Section 94 provides that: "In any proceedings for the recovery of any money … the Court may order that there shall be included, in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect." 17 There was, in effect, a judgment given on 28 June 2006, holding that there was an entitlement of the defendant to the $30,000. 18 The issue that is agitated before me today is whether there ought be an order for the payment of interest on that $30,000. Under the terms of section 94, that question depends upon when it was that the defendant's cause of action to be paid the $30,000 arose. 19 There is no doubt that she had the benefit of a covenant entitling her to payment of $30,000 from 20 December 2002. However, under the terms of clause 13(i), that $30,000 was not immediately payable. It had, as a condition, that it was payable simultaneously with the transfer to one of the defendants, in the Probate List proceedings, of the property. That transfer manifestly did not occur until after 28 June 2006. 20 A cause of action arises when all of the facts which entitle a person to sue then and there for particular relief have occurred. Without having transferred the property to the plaintiff, the defendant could not simply sue on the agreement for money as a liquidated sum, at any time prior to the date of transfer of the property. Thus, section 94 interest could not be awarded on the $30,000, on the basis that it was an amount of liquidated damages that the defendant was entitled to receive. 21 There was another way in which the defendant might be able to recover interest under section 94, however. That way is if, through breach by the plaintiff of obligations under clause 13, other than to pay the $30,000, the defendant has been kept out of that $30,000. The only candidate for such a breach is if the plaintiff failed to complete the contract, at a time when the defendant was ready willing and able to complete. 22 In my view, the defendant has not demonstrated that there has been any time when she was ready, willing and able to perform all of her obligations under the agreement and that it was only by reason of a breach of the agreement by the plaintiff that the agreement did not settle. Through the long history of this matter, the defendant has raised various obstacles to settlement. She has, at all times, insisted on an entitlement, as a matter of right, to be paid interest on the $30,000. That claim was, as I have already held, one which was incorrect. As well, however, there has been an insistence that the defendant is entitled to be paid legal costs that relate to a variety of issues that have flowed from the entering into of the agreement on 20 December 2002. 23 The plaintiff was slow, in 2003, in getting into a position where he was actively offering to settle. The defendant became discouraged at this slowness and took matters into her own hands, listing the property for sale. That sale did not proceed, but there were some legal costs associated with it and there were also some disbursements to real estate agents connected with it. The defendant has taken the view that she is entitled to receive those costs and disbursements as part of the "legal costs" referred to in clause 13(i)(b). 24 The agreement in clause 13(i)(b) is, in substance, an agreement for the sale of land. It is not in the conventional form of a contract for the sale of land in New South Wales but, nonetheless, the fundamental obligation in it is that the defendant, in her position as administratrix, will convey the property at 22 Percy Street, Fairfield, in return for a particular sum of money. It may be that, as well, some of the other obligations contained in clause 13 that I have not set out in this judgment, are part of the consideration for the transfer of the land, but that is unimportant for present purposes. 25 When there is an obligation to convey land, if the purchaser is slow in performing, the vendor cannot unilaterally terminate the contract unless time was initially of the essence of the contract (which it was not in this case) or unless the vendor serves a Notice to Complete making time of the essence, and then terminates the contract. In the present case there was neither service of a Notice to Complete nor a purported termination. Further, the expenses that were involved in the aborted auction were ones which were aimed, not at transferring the real estate to the plaintiff, but at transferring it to someone else. In my view, they do not fit within the description in clause 13(i)(b) of the agreement. 26 There has been more than one such attempt at sale by the defendant, each of which has come to nothing, but the same principles apply concerning the costs and disbursements involved in those attempted sales. 27 As well, there was a period when the defendant was insistent on receiving, as a pre-condition of transfer, a Deed of Release signed by Mr Salvatore Blanda and the other members of the Blanda family who had been defendants in the Probate List litigation. There was no entitlement under clause 13(i) of the terms of settlement to any such Deed of Release. 28 When there were, at all relevant times, these two items insisted upon by the defendant, she was not in a position where she was ready, willing and able to perform her obligations under the contract, and where the only reason why the contract did not complete was because the plaintiff was unwilling or unable to perform his side of the bargain. 29 In these circumstances, this second way in which interest under section 94 of the Supreme Court Act might have become payable is not made out. Net Rentals of the Property 30 The second matter that has kept the parties apart is what should happen concerning the net rentals of the property. The property has, at all times, been tenanted. For a period up to December 2003 the net rents were applied in payment of the mortgage. From December 2003 the net rents were retained by the defendant. The mortgage was not paid at all, and the mortgage debt increased until the mortgagee lost patience and threatened a mortgagee sale. It was the threatening of that mortgagee sale which led the plaintiff to place his caveat on the property earlier this year. 31 The plaintiff claims that he is entitled to the net rental that has accrued on the property. One basis on which that claim is made is that his entitlement to receive the property ought be regarded as being in the nature of a specific legacy. The clear law is that when a person dies and, by their will, leaves a specific item of property to a particular beneficiary, then, if that gift takes effect, and the will does not provide otherwise, that beneficiary is entitled to the income that is generated by that particular asset, from the date of the deceased's death: O'Brien v McCormick [2005] NSWSC 619 at [38]-[39]. Part of the reason for that is that the way in which such a specific legacy takes effect is through the executor assenting to the legacy, once the executor has formed the view that the property that has been left by that legacy is not needed for the payment of expenses of administration: George Attenborough & Son v Solomon & Anor [1913] AC 76 at 82-3. Once there has been an assent by an executor, it relates back to the date of death. It is to give effect to this relation back that the intermediate income goes with the corpus of the property that has been given. 32 In my view, however, the entitlement of the plaintiff under clause 13(i) of the terms of settlement is juristically quite distinct to a legacy. As I have earlier explained, clause 13 is, in substance, a contract for the sale of land. It brings with it, in my view, the usual principles that attach to a contract for the sale of land, whereby any income that is earned by the property that is agreed to be sold remains, subject to any special conditions of the contract, the property of the vendor, insofar as it accrues up to the date of settlement. For these reasons I do not accept the first way in which the plaintiff asserts an entitlement to rent. 33 There is a second way in which the plaintiff asserts an entitlement to what is, in substance, the rent. That is by alleging that there has been a breach of contract on the part of the defendant. The breach of contract is alleged to be the failure of the defendant to settle the transaction at a time when the plaintiff was ready, willing and able to settle the transaction. Had the conveyance been settled at any earlier date than it was, then the plaintiff would have been entitled to the rents that accrued on the property from the date when the conveyance was settled. Thus, the argument goes, when the defendant is in breach of contract in not having settled at an earlier date, the damage that the plaintiff has sustained can be measured by the amount of rent that he has been kept out of. 34 Counsel for the plaintiff points to a specific time when he alleges the defendant was in breach in this fashion. That time is December 2003. By December 2003 the plaintiff had obtained an unconditional loan approval, that would have provided him with enough money to pay the amount of the mortgage at that date, and also would have provided him with enough money to pay the $30,000 that was required to be paid pursuant to clause 13(i)(c). His solicitor had communicated that loan approval to the defendant's solicitor. 35 It will be recalled that there was an obligation on the plaintiff to pay, simultaneously with the transfer of the property, all costs of and incidental to the transfer of the real estate, including CGT and legal costs. I have already explained the only way in which, as a matter of practicality, that obligation could be performed. 36 There was a particular complication in this conveyancing transaction relating to the imposition of capital gains tax. Capital gains tax is payable by reference to the amount of an assessment of it, by the Commissioner of Taxation. Necessarily, an assessment can only be made after there has been a submission of a return and assessment of that return at the end of a tax year. It seems to me fairly clear that what was contemplated, however, was that the obligation of the plaintiff to pay CGT and legal costs would not be left, as a mere covenant to be performed later, and after the transfer of the property. It is necessary to construe the word "simultaneously" in the covenant in a workable way. 37 "Simultaneously" governs the obligations in all three of paras (a), (b) and (c). I do not see that it could be possible for that single word "simultaneously" to have a different meaning in relation to paragraph (a) in 13(i) to the meaning that it has in relation to 13(i)(b). 38 Clearly, in relation to 13(i)(a), "simultaneously" means what it means in the ordinary English meaning of it, namely at exactly the same time. For that reason, I reject one construction that was put forward by the plaintiff, that is, in relation to clause 13(i)(b) "simultaneously" means "as soon as practicable thereafter". 39 Given that "simultaneously" needs to have the meaning that I have adopted, given that the amount of CGT will not necessarily be known at the time of transfer, and also that the amount of legal costs that fit the description in clause 13(i)(b) will not necessarily be known at the time of the transfer, and might possibly need to be assessed, it seems to me that the only way of giving business efficacy to the contract that the parties have entered, is if the obligation of the plaintiff to pay those amounts is construed as being an obligation to pay an estimate reasonably made of the amounts that will ultimately be found to be due for CGT and legal costs. 40 But, if there is to be an obligation to pay a reasonable estimate of the legal costs, it is necessary for the reasonable estimate to be made, and made by the defendant, prior to the settlement. 41 At no time, prior to December 2003, had the solicitors for the defendant notified any particular amount that they estimated would be their legal costs, incidental to the transfer of the real estate. Indeed, an assessment was not given by them of those costs until 7 July 2005. However, in my view, the plaintiff was, in December 2003, ready and willing to pay an amount that was a reasonable amount that was estimated to him for legal costs. 42 The position concerning capital gains tax is somewhat more complicated. 43 From the outset in the transaction, on 17 January 2003, the solicitors for the defendant were conscious that adjustments might need to be made on settlement for, amongst other things, capital gains tax. The type of capital gains tax that would need to be paid, pursuant to clause 13(i)(b), is the amount of capital gains tax that might be incurred by the defendant, either personally or in her capacity as administratrix. As a matter of construction it could not refer to any capital gains tax that the plaintiff might ultimately incur, when, after transfer, he might come to sell the property. 44 The question of the quantum of capital gains tax which might be payable on settlement was first addressed with any particularity by the defendant's solicitors on 24 September 2003, when they wrote to the plaintiff's solicitor, enclosing a copy of the transfer by which Mr Simon Blanda had acquired the property, and saying: "Unless we receive your advice to the contrary, we will assume that the property is subject to capital gains tax for the whole of the period from the date of the transfer to the current date and that the consideration shown in the transfer (together with the relevant stamp duty thereon) is the relevant base amount for calculation of capital gains tax. As you would appreciate it, your client is responsible for indemnifying the estate for capital gains tax with respect to the transfer of this property." 45 That letter requested a valuation of the property, and said that, provided the valuation was received within seven days: "Our client will then arrange for the capital gains tax to be calculated and we will provide to you a full listing of the capital gains tax..." [and other various items]."

Settlement of the transaction did not take place immediately. 52 There has been other advice obtained concerning capital gains tax, including advice from a different firm of accountants in June 2004. That advice was to the effect that roll-over relief would be available in relation to the transmission of the property from Mr Simon Blanda's name to that of the administratrix, and that a transfer pursuant to the type of agreement that had been entered on 20 December 2002 was also a transfer in relation to which roll-over relief was available. On that basis, no capital gains tax would be payable by the defendant. 53 Thus, at the end of December 2003, the plaintiff was willing to take a transfer of the property. He was willing, and able, to pay both the amount of the mortgage that was outstanding, and the $30,000. He was willing to pay an amount of reasonable legal costs, had they been estimated to him. He made clear that, so far as capital gains tax was concerned, he was willing to pay nothing, but that he conceded that, if the advice which led to his taking that position turned out to be wrong, he would continue to have a contractual obligation to indemnify the defendant for any amount of capital gains tax. In taking the view that his obligation to pay capital gains tax to the defendant was an obligation to pay a zero amount the plaintiff was, on the evidence before me, correct. His offer to indemnify if his advice later turned out to be wrong was a concession to the defendant of more than she was contractually entitled to. Thus, in my view, he was ready, willing and able to accept a transfer of the property, pursuant to clause 13, at the end of December 2003. 54 Mr Freeman, for the defendant, drew to my attention that, later in 2004, the plaintiff co-operated in obtaining a private ruling, or seeking to obtain a private ruling, and provided a valuation of the property to assist in it. He submitted that that amounted to a waiver of the earlier breach. I do not agree that that is so. 55 Thus, in my view, the defendant has been in breach of contract, since the end of December 2003. Her breach has caused the plaintiff to lose entitlement to the rent, up to the time of the eventual transfer of the property following the orders that were made on 28 June 2006. 56 The amount of that rental is $18,642.32. 57 While there was some discussion of whether the plaintiff was also entitled to any extra damages by reason of rental not having been applied in reduction of the mortgage in the period after December 2003, Mr Kelly realistically took the view that the costs of obtaining the evidence in relation to any such claim would just as likely approximate or exceed the amount being claimed, and therefore no such claim was pressed. Costs 58 The third topic on which the parties disagreed concerned the quantum of costs that the plaintiff was obliged to pay. It remains the case that the plaintiff has an obligation to pay to the defendant the reasonable costs that fit within the description contained in clause 13(i)(b). In light of my finding about when the plaintiff was ready and willing to complete, those costs would need to be assessed, as at the end of December 2003. 59 If there were to be a referral of the matter, for assessment of a bill of costs, that is something that would involve significant costs in itself. The matter has now reached the stage where the solicitors for the defendant have prepared a detailed bill of costs, that relates to every item of work done and every item of expenditure that they have had, in the course of the entire matter. That bill of costs is in evidence, as exhibit JAF1. Thus, when there is that factual basis for making an assessment, it is possible to exercise the power that section 98(4) Civil Procedure Act confers, to make an assessment of costs in a gross amount: cf Sherborne Estate (No.2); Vanvalen and Another v Neaves and Another; Gilroy v Neaves and Another (2005) 65 NSWLR 268 at 276, [41], [45]-[46]. In my view it can be appropriate to exercise that power when there is an evidentiary basis that establishes approximately the amount of costs that should be awarded, and the cost and effort of obtaining greater precision in that amount is out of proportion to the benefit gained by having that greater precision. 60 The items in the bill of costs show that, up to the end of December 2003, every single item of costs claimed totals $3,520.50. 61 There is, in the draft bill of costs, a listing of the disbursements that have been incurred. The listing of disbursements is at items 266 to 287. Of those disbursements, it seems fairly clear that items 271, 274, 275, 277, 278 and 280 relate to the disbursements connected with a proposed sale of the property to someone other than the plaintiff. As well, there is an amount claimed, in 284, for accountancy fees. The only way in which accountancy fees could fall within the description of clause 13(i)(b) would be if they were of or incidental to the plaintiff's obligation to pay CGT. However, as I have held, there was no liability in relation to CGT that fell within the scope of that indemnity, and therefore the accountancy fees must likewise fall outside the scope of the indemnity. 62 There are marketing costs and costs in items 286 and 287, which fit within the same category as the other marketing expenses. When one deletes those particular disbursements, that leaves an amount of $517.15, for the whole period over which the claim for costs has been made. 63 If I were to assess the costs at the $3,520.50 plus $517.15, any lack of even-handedness would fall upon the plaintiff. Counsel for the plaintiff submits I should assess the costs at a round sum closely approximating that amount. In these circumstances, I assess the costs that fall under clause 13(i)(b) at $4,030. 64 I stand the matter over to Thursday, 14 December 2006 to enable the parties to bring in Short Minutes of Order to give effect to these reasons for judgment. **********

Blanda v Forno

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Cases Cited (2)