Bremner v French

Supreme Court of NSW|2024-06-20|Before: Parker J

Notice of Motion filed 7 June 2024 Aesthete 101 Pty Limited (First Applicant / Fourth Cross-Defendant) Aesthete 102 Pty Limited (Second Applicant / Fifth Cross-Defendant) Aesthete 103 Pty Limited (Third Applicant / Sixth Cross-Defendant) Jason Stone (First Respondent / Trustee appointed under order of 31 October 2019) Christopher John Piers Bremner (Second Respondent / Cross-Claimant) Frank Lo Pilato (Third Respondent / Third Cross-Defendant)

Proceedings 2024/160893 Aesthete 101 Pty Limited (First Plaintiff) Aesthete 102 Pty Limited (Second Plaintiff) Aesthete 103 Pty Limited (Third Plaintiff) Jason Stone (First Defendant) Christopher John Piers Bremner (Second Defendant) Frank Lo Pilato (Third Defendant)

Notice of Motion filed 7 June 2024 A Fernon SC/ B Nolan (Applicants) J Simpkins (First Respondent) D Parish (Second Respondent) A Spencer (Third Respondent)

Proceedings 2024/160893 A Fernon SC/ B Nolan (Plaintiffs) J Simpkins (First Defendant) A Parish (Second Defendant) A Spencer (Third Defendant)

Notice of motion filed 8 May 2024 A Fernon SC/ B Nolan (Applicants) J Simpkins (First Respondent) A Parish (Second Respondent) A Spencer (Third Respondent)

Solicitors: Proceedings 2014/101136 YPOL Lawyers (Fourth, Fifth and Sixth Applicants) Harris Carlson Lawyers (First Respondent) Aitken Lawyers (Second Respondent) Matthews Folbigg Lawyers (Third Respondent)

Proceedings 2024/160893 YPOL Lawyers (Plaintiffs/Applicants) Harris Carlson Lawyers (First Defendant/First Respondent) Aitken Lawyers (Second Defendant/Second Respondent) Matthews Folbigg Lawyers (Third Defendant/Third Respondent) File Number(s): 2014/101136; 2024/160893 Publication restriction: Nil

JUDGMENT

This judgment concerns the long-delayed sale of a portfolio of five co-owned properties in rural Victoria. The present dispute has arisen because third parties claim to have acquired the interest of one of the co-owners in three of the properties. I will refer to these third parties as the Purchasers. The Purchasers are not trying to prevent the sale from taking place at all, but they do seek to be registered as co-owners of the three properties in question prior to the sale, and they also seek orders altering previous orders and directions made by the Court about the mechanics of the sale and the distribution of the proceeds.
The sale is being conducted by Mr Jason Stone, who was, by orders made by the Court on 31 October 2019, appointed as trustee for the sale of the properties pursuant to Part IV of the Property Law Act 1958 (Vic). Although a question has been raised in these proceedings as to whether Mr Stone is, strictly speaking, a trustee, I will refer to him as the "Sale Trustee" for convenience.
There are actually two separate proceedings before the Court. The first was commenced in 2014. The order appointing Mr Stone as trustee for sale was made in the second cross-claim in those proceedings, and it is only that second cross-claim with which the Court is now concerned. The other proceedings were commenced this year by the Purchasers. As I will describe in more detail, relief was eventually sought in both proceedings and the two matters were heard together. I will refer to the two proceedings as the "2014 proceedings" and the "2024 proceedings" respectively.
The hearing took place on 6 June and continued on 20 June. On that date, I announced my conclusions and the orders I proposed to make. In doing so, I delivered a brief oral summary of my reasoning, and indicated that I would deliver formal reasons in due course.
In the end, I did not formally make orders disposing of the proceedings. I was asked to adjourn the proceedings so that an application could be made for an injunction pending an appeal, I adjourned the proceedings to 28 June to allow any such application to be made. In this judgment, I set out my reasons for the conclusions which I announced on 20 June.

Background and procedural history

The five properties were purchased, and remain registered, in the names of Christopher Piers Julian Bremner and Andrew Boyd French as tenants in common in equal shares. Dr Bremner was the cross-claimant in the second cross-claim in the 2014 proceedings, and Mr French was the first cross-defendant. Dr Bremner also made a claim against a second cross-defendant but that claim failed and is of no ongoing relevance.
I have already delivered three judgments in relation to the 2014 proceedings. The first was delivered in August 2019 following a lengthy trial of the first cross-claim and the second cross-claim: French v Bremner [2019] NSWSC 1033 ("J1"). In that judgment, I set out my conclusions on the merits of the parties' claims and directed the parties to bring in minutes of order reflecting those conclusions.
There were some issues about the form of the orders. On 31 October, I delivered a supplementary judgment dealing with those issues and making orders disposing of the first cross-claim and (as it then appeared) the second cross-claim: French v Bremner (No 2) [2019] NSWSC 1504 ("J2"). As already noted, those orders included orders in the second cross-claim appointing Mr Stone as trustee for sale of the five properties, with effect from 18 November, and making provision for the conduct of the sale. I will refer to those orders as the "Sale Orders"
The properties remain unsold. Last year, an application was made by notice of motion in the 2014 proceedings which resulted in the Sale Orders being varied. In December, I published my judgment on that motion: Bremner v French (No 3) [2023] NSWSC 1488 ("J3").
In February 2023 (that is, several years after the Sale Orders were originally made, but while the properties remained unsold), Mr French entered into a Personal Insolvency Agreement ("PIA") under Part X of the Bankruptcy Act 1966 (Cth). The Agreement provided for him to make available his "interests" in three of the five properties to be distributed among participating creditors. Those participating creditors did not, under the terms of the Agreement, include Dr Bremner. I was told that Dr Bremner voted against the Agreement, but it was approved by the requisite majority of Mr French's creditors and Dr Bremner has (at least as yet) made no application to have it terminated or set aside.
The trustee nominated under the Agreement was Mr Frank Lo Pilato. I will refer to him as the "PIA Trustee". Mr Lo Pilato was represented at the hearings which took place on last year's motion, and in the course of the hearings, I made orders formally joining him as a respondent to the motion and as the third cross-defendant to Dr Bremner's cross-claim.
How the parties to the 2014 proceedings became involved in those proceedings is explained at J3 [3]-[6]. The course of the proceedings up to the making of the orders in October 2019, and the associated factual background, is summarised at J3 [7]-[18]. As already noted, I am now concerned solely with the second cross-claim. J3 [19]-[23] summarises the conclusions which I reached on that cross-claim and the reasons for my orders on it. The present judgment assumes familiarity with these passages of my earlier judgment.
The course of events from the making of the orders on 31 October through to the hearing of last year's motion are set out at J3 [34]-[88]. There is no need to say anything more about those events for the purposes of this judgment.
In their original (October 2019) form the Sale Orders provided, broadly, as follows. The Sale Trustee was empowered to sell the properties either at public auction or by private treaty. The sale was to be effected within 12 months of the date on which his appointment became effective (that is, by 18 November 2020). The costs of the sale, and other expenses associated with disposing of the properties, together with the Sale Trustee's fees, were to be deducted from the proceeds. The balance was to be divided equally between Dr Bremner and Mr French.
Last year's motion was brought before the Court by Dr Bremner because the properties remained unsold, and the time specified in the Sale Orders for their sale had long expired. An extension of time was sought for a further year. Although there was some resistance of this from Mr French, I granted an extension for a further year (order 5(a)). I also made orders requiring the parties to execute documents required to complete the sale and to provide vacant possession when required by the Sale Trustee (order (6A)).
Questions also arose as to the adequacy of the orders providing for deductions for payments of costs and expenses out of the sale proceeds, and the division of the proceeds. Three particular issues emerged.
The first was that Mr French (who had been in occupation of the properties throughout the 2014 proceedings, and had remained in occupation following the appointment of the Sale Trustee) asserted that he had contributed to the maintenance and upkeep of the properties without any reimbursement or remuneration. In particular, he alleged that he had defended the properties from bushfires during the severe 2019-2020 fire season which followed the appointment of the Sale Trustee. He claimed that some sort of allowance should be made in his favour for expenditure incurred and services provided which should be paid out of the sale proceeds in priority to the division of the proceeds between Dr Bremner and himself.
The second issue arose out of Mr French's entry into the PIA. Counsel for the PIA Trustee sought variations to the Sale Orders to provide for the proceeds of the three properties, which were the subject of the PIA, to be distributed directly to the PIA Trustee.
The third issue concerned the provision in the Sale Orders authorising the Sale Trustee to deduct his fees and disbursements from the sale receipts. Criticisms were made of the way in which the Sale Trustee had gone about the sale process and the level of costs (including legal costs) that he had incurred. It was suggested that, at the very least, further scrutiny should be required before the Trustee's costs were paid out of the sale receipts.
In order to accommodate these points, I made a number of variations to the Sale Orders.
On the first issue, I broadened the scope of the sale and holding costs which were to be deducted from the sale receipts, so as to include reimbursement or remuneration of Mr French for expenses incurred, after the making of the orders, which had preserved or enhanced the value of the properties. This would allow Mr French, if he wished to pursue such a claim, to do so in due course (J3 [118]-[128]).
On the second issue, I declined to make orders apportioning the proceeds of the three PIA Properties to the PIA Trustee. In part, this was because there might be a question, which had not been fully argued, as to how the Sale Trustee's fees and disbursements were to be apportioned between the properties. The Sale Trustee was however prepared to keep records of the disbursements and fees incurred in a form which would facilitate a later application by the PIA Trustee for apportionment. I made that order, effectively by consent (J3 [135]-[140]).
On the third issue, I varied the orders providing for deduction of the Sale Trustee's fees and the distribution of the residue to Dr Bremner and Mr French in equal shares. As I explained at J3 [129]-[134], I did not make these variations because I intended to cast any doubt on the idea that disbursements and fees properly incurred by the Sale Trustee would be reimbursed to him, but simply to ensure that the question of his fees could be addressed at a later stage, but before the residue was paid out.
I made the variations in question at different stages of the hearing of the motion. Ultimately, the Sale Orders were left in the following form: … (2) Pursuant to section 231(1)(a) of the Property Law Act 1958 (Vic), [Mr Stone] (Trustee) be appointed as trustee for the sale of the following properties with effect from 18 November 2019 (Appointment Date): (a) the property comprised in certificate of title Volume 10223 Folio 550 and located at 1255 Corringle Road, Corringle, Victoria; (b) the property comprised in certificate of title 10869 Folio 593 and located at 250 Lake Road, Newmerella, Victoria; (c) the property comprised in certificate of title Volume 10955 Folio 655 and located at 223 Lake Road, Newmerella, Victoria; (d) the property comprised in certificate of title Volume 10468 Folio 688 and located at Lot 5, Great Alpine Road, Dinner Plain, Victoria; and (e) the whole of the estate and interest held by Bremner and French in the property comprised in certificate of title Volume 08941 Folio 200 and located at 4963 McKillops Road, Deddick Valley, Victoria (Deddick Valley Property), (together, Jointly Owned Properties). (3) With respect to the Deddick Valley Property, the Trustee shall seek to obtain the consent of the registered proprietor of the property to transfer title to the property to such person who may purchase the property as a result of the sale process set out in the order in paragraph 5, and to do all such things and sign all such documents as may be necessary to effect the transfer. (4) In the event the Trustee is unable to obtain the consent of the registered proprietor of the Deddick Valley Property referred to in paragraph 3: (a) Bremner and French pay all and any stamp duty (including any associated fees, interest or penalties) in respect of the transfer of title in the property to them as tenants in common in equal shares by no later than the date which is 4 weeks after the Appointment Date; (b) in the event that one party (Party A) contributes an amount which is greater than 50% of the stamp duty payable pursuant to the order in paragraph 4a (Excess Contribution): (i) Party A is entitled to recover the Excess Contribution from the other party (Party B); and (ii) Party B's residual share of the proceeds of sale of the Jointly Owned Properties shall be subject to a charge in favour of Party A in the amount of the Excess Contribution; (c) in the event that all stamp duty (including any associated fees, interest or penalties) is not paid in accordance with order 4a, the Trustee shall pay such stamp duty (including any associated fees, interest or penalties) out of the proceeds of sale of any one or more of the other Jointly Owned Properties as contemplated by the order in paragraph 5e.v; and (d) Bremner and French take all steps necessary to effect the transfer of title in the property to them as tenants in common by no later than the date which is 2 weeks after a request is made of them to do so by the Trustee. (5) With respect to each of the Jointly Owned Properties (including, in the case of the Deddick Valley Property, the whole of the estate and interest held by Bremner and French in that property), pursuant to s 231(2) of the Property Law Act 1958 (Vic): (a) the Trustee sell the property by way of either public auction or private treaty (at the Trustee's discretion) at a date no later than 12 months after 29 September 2023; (b) the reserve price for the auction be determined by the Trustee; (c) French give access to the property to the Trustee and any real estate agent appointed by them to act on the sale of the property at such time and on such day as the agent may reasonably require, including (without limitation) for preparation of marketing material and for the purposes of inspection by intending purchasers and at "open for inspection" times and dates as the agent shall suggest; (d) either Bremner or French may purchase the property whether at auction or otherwise; (e) the proceeds of sale be applied as follows: (i) in payment of any unpaid costs and expenses associated with the holding, maintenance (including defence against bushfire) or sale of the Properties or any of them; (ii) in repayment to either Bremner or French of any moneys reasonably expended or in payment to either French or Bremner of reasonable remuneration for services provided by each or either of them the holding, maintenance (including defence against bushfire) or sale of the Properties or any of them" for the remaining words of the sub-paragraph; during the period since 18 November 2019; (iii) in repayment of the legal expenses including costs and disbursements incurred on the sale of the property by either party; (iv) in payment of any Excess Contribution pursuant to the order in paragraph 4b; (v) in payment of any unpaid stamp duty (including any associated fees, interest or penalties) in respect of the Deddick Valley Property in accordance with the order in paragraph 4c; (vi) any remainder to be paid into an interest-bearing account to be maintained by the trustee, until further order of the Court. (6) Pursuant to s 231(4) of the Property Law Act 1958 (Vic), the Trustee is authorised to charge at the rates set out in Exhibit C. (6A) Pursuant to ss 228(2)(a) and 232 of the Property Law Act: (a) The Trustee is empowered to execute all documents on behalf of Bremner and French and the PIA Trustee for the purposes of selling the Properties and transferring the Properties to any purchaser/s, including any document appointing real estate agent/s to sell the properties, any contract of sale, vendor's statement/s, transfer/s of land and any documents required under the Duties Act 2000 (Vic). (b) Within 14 days of the date of these orders, Bremner and French and the PIA Trustee provide all certificates of title for the Properties or nominate electronic control for the certificates of title for the Properties to the Trustee. (c) If any of Bremner or French or the PIA Trustee is unable to locate any of the certificates of title for the Properties, within 7 days of receiving a request from the Trustee, that party shall sign any documents required by the Trustee to apply for the issuance of replacement certificates of title. (d) Within 7 days of receiving a request from the Trustee, Bremner and French and the PIA Trustee shall withdraw, at their own cost, any caveats which they have lodged on any of the Properties. (e) Within 30 days of these orders, Bremner and French and the PIA Trustee shall deliver up all keys for all buildings and improvements on the Properties. (f) Within 30 days of these orders, Bremner and French and the PIA Trustee must remove from the Properties all vehicles, chattels and personal property. (g) In the event that any of Bremner or French or the PIA Trustee fail to comply with order 6A(f) above, the Trustee is empowered to remove and dispose of any vehicles, chattels and personal property remaining at the Properties as he sees fit. (h) Bremner and French and the PIA Trustee do all things as may be reasonably required by the Trustee, his selling agent or his solicitors for the purposes of achieving a sale of the Properties, including providing any access to buildings on the properties for the purpose of valuation and viewing by potential purchasers. (i) The Trustee shall not, without leave of the Court, take any further step to obtain formal valuations for the Properties or any of them. (6B) Reserve for further consideration: (a) the extent to which the Trustee's remuneration should be paid out of the proceeds of sale; (b) the division of Mr French's half share of the net proceeds of sale between him and the PIA Trustee. …
The Purchasers are three companies, named Aesthete 101 Pty Limited, Aesthete 102 Pty Limited and Aesthete 103 Pty Limited. They came into this matter earlier in the year. The background was as follows.
The Purchasers are controlled by a solicitor, Mr Farshad Amirbeaggi. He is the principal of a law firm named Yates Beaggi Lawyers ("YBL").
One of YBL's clients was a company named Harris Healthcare Pty Limited ("HHC"). To secure payment of its fees, YBL obtained a charge over HHC's assets and undertaking. In 2021, YBL appointed Mr Dominic Calabretta as receiver and manager of HHC pursuant to the charge, there being unpaid costs and disbursements owed (or allegedly owed) to YBL by HHC.
One of the assets of HHC, which was the subject of the charge, was a debt owed to HHC by Mr French in the sum of $450,000. In 2022 Mr Calabretta obtained, on behalf of HHC, a judgment against Mr French for this amount. In November of that year, again on behalf of HHC, Mr Calabretta filed a creditor's petition seeking to have Mr French made bankrupt.
Soon afterward, in December 2022, Mr Lo Pilato was appointed as controlling trustee of Mr French's estate. The PIA was formally executed on 16 February last year, following approval by the requisite majority of the creditors.
The PIA was in conventional form, providing that Mr French ("the Debtor") would make available specified property for distribution among his creditors, leaving any other property owned by him free of any claims by them. The property made available was defined as the "Debtor's Property", in the following terms: Debtor's Property means the real property set out as follows: (a) XXX Great Alpine Road, Cobungra VIC 3898 bearing title reference Lot X on Plan of Subdivision XXXXXXX (Volume XXXXX Folio XXX); (b) XXX Lake Road, Newmerella VIC 3886 bearing title reference Lot 1 on Plan of Subdivision XXXXXXX (Volume XXXXX Folio XXX); and (c) XXX Lake Road, Newmerella VIC 3886 bearing title reference Lot 2 on Plan of Subdivision XXXXXXX (Volume XXXXX Folio XXX).
Clauses 3.2 and 4.1 relevantly provided: As and from the Commencement Date, the Debtor will do all things reasonably necessary to promptly enable his entire interests in the Debtor's Property to be made available to the Deed Trustee ... … The Deed Trustee will do all things reasonably necessary to realise, dispose, sell, or transfer the Debtor's interest in the Debtor's Property.
On the same date, Mr French executed a power of attorney in favour of the PIA Trustee. The instrument authorised the PIA Trustee to do "all things reasonably necessary in respect of [Mr French's] interest" in the three properties.
Over the following twelve months, Mr Calabretta negotiated with the PIA Trustee to buy the Trustee's interest in the three properties. The negotiations were fractious and apparently resulted in litigation, the details of which are not clear on the evidence. But following a mediation, in late March this year, agreement was reached and a formal contract, styled the "Sale Agreement", was executed.
The parties to the Sale Agreement included the PIA Trustee, Mr Calabretta, HHC, Mr Amirbeaggi, YBL and the Purchasers. The Agreement was structured so that the Purchasers were to pay the consideration (the actual amount has been treated as confidential in these proceedings) to the PIA Trustee immediately on execution of the Agreement, but the funds were to be held in escrow until "Completion". This was defined as "the date upon which [the Purchasers] obtain the Transfer or the Declaration whichever is the earlier". In the meantime, the parties agreed to do "all things reasonably necessary and or [sic] execute all documentation required to carry into execution the Transfer and or [sic] to assist [the Purchasers] in seeking and obtaining of [sic] the Declaration".
For the purposes of the Agreement, the "Transfer" was defined as "the transfer of [Mr French's] title to [the three properties] to [the Purchasers]". The "Declaration" was defined as "a Declaration made by [this Court] that [the Purchasers] are the owner[s] of all legal and/or beneficial title and interest in [Mr French's] interest in [the three properties]".
Meanwhile, following my decision in December last year, the Sale Trustee had taken steps to proceed with the sale of the five properties. This included the appointment of agents to handle the sales. Auction dates were fixed for 8 and 9 May.
A few days after executing the Sale Agreement, on 2 April, Mr Amirbeaggi wrote directly to the Sale Trustee with an offer to acquire the three properties. He began by stating that he had been informed by the agent that the properties were expected to fetch $1.6 million in total. The letter continued: … I offer to acquire Dr. Bremner's interest in the above 3 properties on the following terms: a. payment to you of $800,000, b. payment to you of a sum equivalent to 50% of your remuneration / costs incurred from 1 December 2023, to date in relation to the sale of the 3 properties, c. immediate exchange and settlement [I can place the sum into your solicitor's trust account whilst we document the terms], d. you agree for the 3 properties to be excised from the pool of 5 properties, such that upon completion of the sales of the 3 contemplated your function as trustee with respect to the 3 properties is at an end [to facilitate that we are happy to make approach to the Court for further orders / directions].
Correspondence ensued between Mr Amirbeaggi (apparently acting for Mr Calabretta as Receiver of HHC as well as for the Purchasers), solicitors acting for the PIA Trustee, solicitors acting for the Sale Trustee and solicitors acting for Dr Bremner. The correspondence in evidence (which appears incomplete) shows that the solicitors for the Sale Trustee sought a copy of the Sale Agreement. This was refused by Mr Amirbeaggi, although he provided a summary of the Agreement which stated that the interest acquired by the Purchasers under the Sale Agreement included Mr French's "right title and interest in" the three properties. Mr Amirbeaggi stated that the Purchasers sought Mr Stone's consent to be registered on title to the three properties "to perfect" their interest.
Although continuing to pursue their request for a copy of the Sale Agreement, the solicitors for the Sale Trustee provided a response to the offer. That offer had proceeded on the basis that, as a result of the Sale Agreement, the Purchasers had already acquired a half interest in each of the properties. The solicitors reserved the Sale Trustee's position on whether this was correct. The solicitors also pointed out that the offer cut across the Sale Orders, which were of course binding on the Sale Trustee. In particular, the Sale Orders obliged the Sale Trustee to sell the whole of the properties, and did not authorise the sale of Dr Bremner's half share only. The offer also cut across the provisions in the Sale Orders for the proceeds to be deposited in a bank account under the control of the Sale Trustee while any claims by Mr French or Dr Bremner for allowances, and the quantum of the Sale Trustee's remuneration, were worked out.
The Sale Trustee's solicitors nevertheless indicated that he was prepared to consider an alternative to going ahead with the sale of the three properties. But this was conditional on agreement from Dr Bremner and on satisfactory provision being made for the payment of the Sale Trustee's costs.
The correspondence with Mr Amirbeaggi continued, but the Sale Trustee's position remained firm and was reiterated in a letter dated 11 April. There is no further correspondence in evidence from the period before the 2024 proceedings which were commenced by the filing of a summons on 1 May.
The summons named the Purchasers as plaintiffs. Mr Stone was named as the first defendant, Dr Bremner as the second defendant, and the PIA Trustee as the third defendant.
I will describe the final orders sought in the summons in more detail later in this judgment. For present purposes, it is enough to say that the summons sought declarations to the effect that Mr French's "interest" in the three properties had passed to the Purchasers, and orders for the registration of the Purchasers as co-owners of the three properties in Mr French's place.
A notice of motion was also filed in the 2024 proceedings for the Purchasers as applicants and naming the three defendants as respondents. The notice of motion began by seeking "leave to intervene" and "leave to re-open" the 2014 proceedings. It went on to seek the variation of the Sale Orders. One variation was to provide for the proceeds of sale of the three properties to be paid directly to the Purchasers. Other orders sought included directions which would permit the Purchasers, if they were to buy the properties from the Sale Trustee, to be relieved of any obligation to pay a deposit, and to be credited for the purposes of the settlement with half of the purchase price.
Following the filing of the summons in the 2024 proceedings, discussions continued between the parties' legal representatives. On 6 May, the Purchasers and the PIA Trustee reached agreement on, and signed, a minute of consent order providing for the Court to make the declarations sought in the summons. But no agreement was reached with the Sale Trustee and Dr Bremner.
In the course of the debate, the auction dates for 8 and 9 May were postponed. The proceedings were brought before me on 31 May. I was asked to deal with them on an expedited basis and I fixed them for hearing on 6 June. The auction dates are currently fixed for 3 and 4 July.
Mr French was not joined as a party to the 2024 proceedings. The question of his involvement was raised in correspondence but resisted by Mr Amirbeaggi on the basis that he had "no standing" and was "a cantankerous individual". Following the mention on 31 May, copies of the originating summons and notice of motion were emailed to Mr French, but he was never formally joined or served and he did not participate.
At the hearing on 6 June, the Purchasers, the Sale Trustee, Dr Bremner and the PIA Trustee were all represented by counsel. Affidavits were read from Mr Amirbeaggi, the Sale Trustee's solicitors, and Mr Lo Pilato. Strictly speaking, the hearing was a final one insofar as it concerned claims for substantive relief in the summons, but no point was taken about the admissibility of the affidavits for the purposes of a final hearing, nor was any cross-examination sought.
At the mention on 31 May, I raised a question with counsel for the Purchasers about whether the matter was being advanced in a properly constituted form. I suggested that if, as appeared to have been accepted, it was agreed between the PIA Trustee and the Purchasers that the Purchasers had succeeded to the PIA Trustee's rights, the appropriate course might be an application to have the Purchasers joined as cross-defendants to Dr Bremner's cross-claim in the 2014 proceedings, in place of the PIA Trustee. Once joined as parties to that cross-claim, the Purchasers could make their claims for orders and directions against the Sale Trustee and Dr Bremner, and for variation of the Sale Orders, by way of motion in those proceedings.
At the hearing on 6 June, I repeated the point. Counsel thereupon sought leave to have the Purchasers joined as cross-defendants to Dr Bremner's cross-claim in the 2014 proceedings, and to file a notice of motion seeking the relief which had been sought by way of notice of motion in the 2024 proceedings (to the extent still pressed). I granted the necessary leave, which was not opposed.
The PIA Trustee however remained a cross-defendant to Dr Bremner's cross-claim. The Purchasers were joined as additional (fourth, fifth and sixth) cross-defendants. As I understood it, this was because counsel took the view that the PIA Trustee could not be replaced until the Purchasers had obtained transfer of the title to the three properties.
In due course, the foreshadowed notice of motion was filed for the Purchasers in the 2014 proceedings. The Sale Trustee, Dr Bremner and the PIA Trustee were named as respondents. Mr French was not joined as a party to the motion. The notice of motion, which had been filed in the 2024 proceedings, was, in effect, superseded.

2024 proceedings

The declaratory relief sought in the summons consisted of three declarations. The first declaration concerned the purchase by the first of the three properties. The declaration sought was that the first of the Purchasers had become the "owner of right, title, and interest in [Mr French's] legal and beneficial interest as tenant in common as to one of two equal shares in" the property. The other two declarations concerned the other two properties and were in equivalent form.
The summons went on to claim the following further orders concerning registration: Orders 4. That the Registrar General of Lands of Victoria carry into execution the following transfers: 4.1 legal title held in the name of Andrew Boyd French in Newmerella 1 to the first plaintiff. 4.2 legal title held in the name of Andrew Boyd French in Cobungra to the second plaintiff. 4.3 legal title held in the name of Andrew Boyd French in Newmerella 2 the third plaintiff. 5. That within 48 hours of Order the first and second defendants [the Sale Trustee and Dr Bremner] do all things, and execute all documents, necessary to enable the Registrar General of Lands to carry into execution the transfers contemplated in Orders 4.1, 4.2, and 4.3.
The declaratory relief in [1]-[3] of the summons was not pursued. In written submissions prior to the hearing on 6 June, counsel accepted that an order could not be obtained directly against the Registrar and abandoned [4], as well as other consequential orders. The only issue presented for determination in the proceedings was whether the Court should make the orders sought in [5] requiring the Sale Trustee and Dr Bremner to do all things necessary to assist the Purchasers to be registered as the proprietors of Mr French's half share of the three properties.

Jurisdiction

The first question for consideration is whether the Court has jurisdiction to entertain the proceedings. The question arises because of the potential effect of federal legislation concerning bankruptcy jurisdiction.
A similar question was considered by Gleeson JA in Re Galtari Pty Ltd [2018] NSWSC 917 and can be dealt with in the present case by reference to that decision.
His Honour's analysis establishes the following. 1. Under s 27 of the Bankruptcy Act 1966 (Cth) ("BA"), jurisdiction "in bankruptcy" is exclusively conferred on federal courts: at [26]-[28]. 2. Despite s 27, the Court is not deprived of jurisdiction in a matter which arises "in bankruptcy". Such jurisdiction is conferred by s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). But such a matter is a "special federal matter" for the purposes of cross-vesting legislation and must be transferred to the Federal Court unless there are "special reasons" for the Court determining the matter itself. These "special reasons" do not include the wishes or convenience of the parties: at [37]-[44]. 3. For the purposes of BA s 27, jurisdiction "in bankruptcy" is generally taken to include matters involving claims which have the effect of declaring for or against the title of a trustee in bankruptcy: at [57]-[61]. 4. On the other hand, a distinction has been recognised between exercising jurisdiction "in bankruptcy" and merely recognising the effect that the BA has for the purpose of State matters: at [51]-[56], [62].
The question of jurisdiction was raised by the Court. Counsel for the Purchasers submitted, with a brief reference to Galtari, that there was no special federal matter. None of the other counsel demurred. Nevertheless, it is the first duty of the Court to satisfy itself of its jurisdiction, and I have considered the question as best I can in the absence of any contradictor.
In the present case, there is no dispute that Mr French has, at least in equity, assigned whatever interest he had in the three properties, or in the proceeds of those properties, to the PIA Trustee. Nor is there any dispute that that interest has now been assigned to the Purchasers. The question in the proceedings is what the interest was.
It seems to me that in these circumstances there can be no question of the Court in these proceedings declaring for or against the title of the PIA Trustee. There is simply no controversy in the proceedings about that matter which the Court is being asked to quell. Indeed, Mr French is not even a party to the proceedings.
The same conclusion may be supportable by broader reasoning. In the case of a bankruptcy, the vesting of the bankrupt's property in the trustee is effected by statute, and the distribution of the property among the bankrupts' creditors is prescribed by statute. A Part X arrangement is different. The arrangement itself involves an assignment by the debtor of property for the benefit of creditors which operates according to ordinary principles of contract law and trust law. Likewise, the distribution of the proceeds, and the payment of the trustee's costs, is dealt with in the arrangement itself and is not statutory.
There are of course statutory provisions which apply to Part X arrangements. Among other things, they make a PIA binding on all creditors and bar them from taking enforcement action on provable debts (BA s 229). They also provide for the release of provable debts by the PIA (BA s 230). In Galtari, Gleeson JA held that a defence to an action for damages or compensation for breach of director's duties which merely recognised the effect of s 230 did involve the exercise of jurisdiction "in bankruptcy". The present case is arguably one step further removed. It does not relevantly involve the effect of the BA at all.
For these reasons, I am satisfied that this is not a special federal matter. Therefore, the Court is entitled (and bound) to proceed with making orders disposing of the proceedings.

Statutory provisions

The Sale Orders were, as already mentioned, made pursuant to Part IV (ss 221-234I) of the Property Law Act 1958 (Vic) ("PLA"). Those provisions date back to 2005, when they replaced the previous Part IV. Generally speaking, jurisdiction under Part IV, in its post-2005 form, is conferred on the Victorian Civil and Administrative Tribunal ("VCAT"). There are however exceptions which resulted in this Court having jurisdiction (cross-vested from Victoria) in the present case: see J1 [470]-[471].
PLA s 228 provides generally for the orders which VCAT can make: (1) In any proceeding under this Division, VCAT may make any order it thinks fit to ensure that a just and fair sale or division of land or goods occurs. (2) Without limiting VCAT's powers, it may order - (a) the sale of the land or goods and the division of the proceeds of sale among the co-owners; or (b) the physical division of the land or goods among the co-owners; or (c) that a combination of the matters specified in paragraphs (a) and (b) occurs.
VCAT has express power, in PLA s 231, to make an order for the appointment of trustees for sale. It was under this section that the order appointing the Sale Trustee was made in the present case. The section relevantly provides: (1) In any proceeding under this Division, if VCAT thinks that the appointment or removal of trustees is necessary or desirable, it may order - (a) the appointment of trustees; or (b) the removal of trustees. (2) In an order appointing trustees for the purposes of the sale of land or goods, VCAT may - (a) direct the trustees as to the terms and conditions on which any sale is to be carried out; (b) direct the distribution of any proceeds of the sale in any manner specified by VCAT. (3) In an order appointing trustees for the purposes of a physical division of land or goods, VCAT may direct the trustees as to the manner in which the division is to be carried out. (4) An order under this section may provide for the remuneration of the trustees appointed under the order and - (a) if trustees are appointed for the purposes referred to in subsection (2), the order may provide that the remuneration of the trustees be paid from the proceeds of sale; and (b) if the trustees are appointed for the purposes referred to in subsection (3), the order may provide that the remuneration of the trustees be paid by such parties to the proceeding as VCAT considers just and fair in the circumstances.
PLA s 232 conveys power to make various specific types of order. It provides: In any proceeding under this Division, VCAT may order - (a) that the land or goods be sold by private sale or at auction; (b) that the co-owners may purchase the land or goods at that sale or auction; (c) in the case of a private sale, that the sale be at fair market price as determined by an independent valuer; (d) in the case of an auction, that the reserve price is the reserve price set by VCAT; (e) that an independent valuation of the land or goods take place; (f) that a sale is to be completed within a specified time; (g) that the costs of the sale be met - (i) by one or more of the co-owners; or (ii) from the proceeds of the sale; (h) that the sale and division of the proceeds of sale or the physical division of the land or goods is subject to any terms and conditions which VCAT considers necessary or desirable in any particular case; (i) in the case of land, that any necessary deed or instrument be executed and documents of title be produced or other things be done that are necessary to enable an order to be carried out effectively; (j) in the case of land to which the Transfer of Land Act 1958 applies, directing the Registrar of Titles to make amendments to the Register within the meaning of that Act or do any act or make any recordings necessary to give effect to an order under this Division.
PLA s 233 gives VCAT power to make orders for compensation, accounting or adjustment as between co-owners.

Statutory context

The 2005 version of Part IV replaced a previous version which had been enacted with the rest of the Act in 1958. Under the former version of the provisions, orders concerning the partition or sale of co-owned land were made by the Supreme Court or the County Court.
The critical provision, so far as sale was concerned, was PLA s 222 which provided: In an action for partition where if this Act or any corresponding previous enactment had not been passed a judgment for partition might have been made, then if it appears to the Court that … a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may if it thinks fit on the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly and may give all necessary or proper consequential directions.
Part IV also made express provision authorising any of the existing parties interested in the property to bid at the sale on such terms as to non-payment of deposit or as to setting off or accounting for the purchase money "as to the Court seem reasonable" (s 225).
PLA s 227 dealt with the proceeds of the sale. It relevantly provided: (1) All money to be received on any sale effected under the authority of this Part may (if the Court thinks fit) be paid to any trustees of whom it shall approve, or otherwise the same shall be paid to the credit of the Master of the Supreme Court or Master of the County Court ex parte the applicant in the matter of this Act, and in either case such money shall be applied as the Court shall from time to time direct to some one or more of the following purposes, namely: The payment of the costs and expenses of and incidental to such sale which have not been otherwise specially dealt with or reserved to be dealt with under section two hundred and thirty-two of this Act; or The discharge or redemption of any incumbrance affecting the hereditaments in respect of which such money was paid, or affecting any other hereditaments subject to the same uses or trusts; or The purchase of other hereditaments to be settled in the same manner as the hereditaments in respect of which the money was paid; or The payment to any person becoming absolutely entitled. (2) The application of the money in manner aforesaid may (if the Court so directs) be made by the trustees (if any) without any application to the Court or otherwise upon an order of the Court upon the application of the person who would be entitled to the possession or the receipt of the rents and profits of the land if the money had been invested in the purchase of land. (3) Until the money can be applied as aforesaid the same shall be from time to time invested in Government debentures or any other debentures upon which trust funds may legally be invested or any public securities granted or issued or to be granted or issued by the Government of Victoria, or on first mortgage of real property in the State of Victoria as the Court thinks fit, and the interest and dividends of such debentures or securities shall be paid to the person who would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land.
PLA s 226 provided that s 57 of the Trustee Act 1958 (Vic) ("TA") should "extend and apply" to cases in which the Court directed a sale under Part IV. The effect was to bring the provisions of the TA, which concerned vesting orders (Part IV, Division 2; ss 51-62), expressly into play.
TA s 51(2) provided that the Supreme Court might make a vesting order in various cases, including where new or replacement trustees have been appointed under an existing settlement. But the power to make a vesting order was also extended to other cases, including: … (i) where a trustee neglects or refuses to convey any property, or to receive the dividends or income of any property, or to sue for or recover any property according to the direction of the person absolutely entitled to the same for twenty-eight days next after a request in writing has been made to him by the person so entitled; … (m) where any person neglects or refuses to convey any property, or to receive the dividends or income of any property, or to sue for or recover any property in accordance with the terms of an order of the Court; …
TA s 58 dealt with the effect of such a vesting order. It relevantly provided: (1) In the case of a vesting order consequential on the appointment of a new trustee, or the retirement of a trustee, the vesting order shall have the same effect as if the persons who before the appointment or retirement were the trustees (if any) had duly executed all proper conveyances of the property for such estate or interest as the Court directs, or if there is no such person, or no such person of full capacity, then as if such person had existed and been of full capacity, and had duly executed all proper conveyances of the property for such estate or interest as the Court directs. (2) In every other case the vesting order shall have the same effect as if the trustee or other person or description or class of persons to whose rights, or supposed rights, the provisions of this Part respectively relate, had been an ascertained and existing person of full capacity, and had executed a conveyance or release to the effect intended by the order. (3) In the case of land subject to the operation of the Transfer of Land Act 1958 the land shall not vest until the appropriate recordings are made in accordance with the provisions of that Act. …
The Court was given an alternative power to appoint a person to convey the relevant property. TA s 60 provided: In all cases where a vesting order can be made under any of the foregoing provisions, the Court may, if it is more convenient, appoint a person to convey the property or release any right, and a conveyance or release by that person in conformity with the order shall have the same effect as an order under the appropriate provision.
Against this background, s 57 of the TA relevantly provided: Where a judgment is given for the specific performance of a contract concerning any interest in land, or for partition or sale in lieu of partition or exchange of any interest in land, or generally where any judgment is given for the conveyance of any interest in land either in cases arising out of the doctrine of election or otherwise, the Court may declare - (a) that any of the parties to the action are trustees of any interest in the land or any part thereof within the meaning of this Act; or … and thereupon the Court may make a vesting order relating to the rights of those persons … as if they had been trustees.
The Transfer of Land Act 1958 (Vic) ("TLA") made specific provision for registration which dovetailed with TA s 58(3). TLA ss 58 and 59 provided: 58 Registrar to give effect to order vesting trust estate (1) Whenever any person interested in land under the operation of this Act appears to any court or to the Registrar to be a trustee or beneficiary of such land within the intent and meaning of any Act relating to trustees or beneficiaries and any vesting order is made in the premises by any such court or by the Registrar (which order he is hereby empowered to make concurrently with the court), the Registrar on making or being served with such order or an office copy thereof must register that person as the proprietor of the land, and that person becomes the registered proprietor and transferee of the land. (2) Until a recording is made as aforesaid no vesting order referred to in this section shall have any effect or operation in transferring or otherwise vesting the land. 59 Application to become registered proprietor by person who land is vested in by Act or court order (1) A person may apply to the Registrar to become the registered proprietor of land that has been vested in the person - (a) by or under any Act, including a Commonwealth Act; or (b) by order of a court. (2) An application under subsection (1) must be in the appropriate approved form. (3) Upon granting of an application made under subsection (1), the Registrar must register the applicant as the proprietor of the land, and that person becomes the registered proprietor and transferee of the land.
The 2005 amendments were the product of a recommendation from the Victorian Law Reform Commission. The Commission's Report (Victorian Law Reform Commission, Disputes Between Co-owners: Report, (December 2001) shows that it considered, as a possible model for the new legislation, the corresponding statutory provisions in New South Wales (Conveyancing Act 1919 (NSW) ("NSW CA"), Part 4, Division 6, ss 66F-66I) and Queensland (Property Law Act 1974, (Qld) Part 5, Division 2, ss 37-43). Those provisions were in similar terms, and it is only necessary to refer to the New South Wales legislation for present purposes.
The key provision in the NSW Act was s 66G. It relevantly provided: 66G Statutory trusts for sale or partition of property held in co-ownership (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. … (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. …
The "statutory trust for sale" was defined in s 66F(2)(a) as follows: … Property held upon the "statutory trust for sale" shall be held upon trust to sell the same and to stand possessed of the net proceeds of sale, after payment of costs and expenses, and of the net income until sale after payment of costs, expenses, and outgoings, and in the case of land of rates, taxes, costs of insurance, repairs properly payable out of income, and other outgoings upon such trusts, and subject to such powers and provisions as may be requisite for giving effect to the rights of the co-owners, …
NSW CA s 66G did not contain an equivalent to PLA s 226 which expressly made the TA provisions on vesting orders applicable. But it was clear from NSW CA s 66G(3)(b) that vesting orders made under s 66G would be covered by the relevant New South Wales trustee legislation, the Trustee Act 1925 (NSW) ("NSW TA").
The NSW TA provisions were in very similar, and in some cases, exactly the same, form as the corresponding provisions of the TA. The circumstances in which trustees could be appointed were similar, including the circumstances specified in TA s 51(2)(i) and (m) (NSW TA s 71(2)(i) and (m)). The effect of the vesting order as set out in TA s 58 was effectively the same (NSW TA s 78) as was the alternative provision for the appointment of a person to convey property set out in TA s 60 (NSW TA s 79). There was also an equivalent to TA s 57 giving power to the Court to make a vesting order in cases of specific performance, partition or sale in lieu of partition, or the exchange of land (NSW TA s 77).
Under New South Wales legislation, the provisions relating to the vesting of Torrens title land were also substantially the same. NSW TA s 78(3), corresponded with TA s 58(3), providing that land would not vest until the necessary entries were made in the Register. The New South Wales Torrens title legislation (Real Property Act 1900 (NSW) ("NSW RPA")) contained provisions for registration in equivalent terms to TLA s 58 (NSW RPA s 86).
The Commission's Report was preceded by a Discussion Paper (Victorian Law Reform Commission, Disputes Between Co-owners: Discussion Paper, (June 2001)). In the Discussion Paper, the Commission identified (at [4.09]-[4.12]) three main reasons for replacing the 1958 version of PLA Part IV. 1. The language of the 1958 version of Part IV was derived from earlier legislation going back to partition laws in the sixteenth century, which had been amended in the nineteenth century to permit sale rather than partition in some circumstances. The language was described by the Commission as "archaic", with some provisions, at least, using terms which were no longer current and likely to be understandable only by "very few lawyers". 2. Originally partition had been the usual remedy, consistent with the main field of operation of the previous legislation being agricultural land. But in modern times the desirable remedy was to be sale. The Commission noted that, under the 1958 version of Part 4, this might not always be available. 3. The existing procedure was characterised by the Commission as "expensive, time consuming and rigid". Proceedings had to be brought in the Supreme Court or the County Court which was likely to be expensive and might involve considerable delay. Court proceedings could not be avoided through the use of alternative dispute resolution, or at least there was no formal process for doing so. In some cases, for example where there was a lack of capacity to agree, a court order would be essential.
The Commission went on to consider two alternative methods of reform, based on approaches in other jurisdictions. One was the approach in New South Wales (and Queensland) of appointing a trustee for sale, the other was the approach in British Columbia, which was essentially the same as the approach ultimately recommended by the Commission.
In making the comparison, the discussion paper stated, at [4.16]-[4.17] (citations omitted): The New South Wales provisions are simpler than the provisions which apply in Victoria. By making trustees responsible for administering the sale or physical division of the property, they may reduce disputes between co-owners about matters of detail. For example, the trustees can oversee the advertising of the property and decide when the sale should occur. They can also ensure that any proceeds of sale are properly distributed. The disadvantage of these provisions is that they establish a complex process for sale or division of the property, which will often be unnecessary. It may be useful to have trustees appointed to oversee the sale or division in some situations. For example, if the relationship between the co-owners has disintegrated so that they cannot agree on details, or if some of the co-owners are minors who cannot manage their own assets, it may be advantageous to have trustees involved. However, it is not clear why the legislation requires the appointment of trustees in every case of partition and sale. When co-owned land is sold or divided under the Family Law Act 1975 (Cth) or under Part IX of the Property Law Act 1958 (Vic), the court generally orders a sale without appointing trustees, though it has power to appoint trustees in appropriate circumstances. In addition to being unnecessary in some cases, the appointment of trustees may sometimes delay realisation of property.
By comparison, the British Columbia approach was seen as even simpler, and lacking any obvious disadvantages. In particular, if all co-owners were adults of full legal capacity, the Commission stated that it was "cumbersome" to require the appointment of trustees for the sale or division of the property. The British Columbia approach was also seen as more flexible. The Discussion Paper suggested that giving a court or tribunal a broad power to divide the proceeds as it saw fit was "likely to lead to a fairer outcome": at [4.19]-[4.20].
The Report by the Commission essentially confirmed the preliminary views which had been expressed in the Discussion Paper and made recommendations accordingly. But the Commission did refer (at [4.49]) to a submission that in certain situations, such as where there was a risk of violence, "the NSW approach would be preferable". Appointment of a trustee would provide a mechanism which, in such a case, would avoid direct contact between the co-owners and remove the possibility of coercion. The Commission added that other situations where it would be "necessary" to appoint a trustee included situations in which some of the co-owners were minors or were incapable of looking after their own affairs.
The Report commented, at [4.50]: While we acknowledge that these circumstances would require the presence of a trustee, we do not believe that it should be necessary to appoint trustees in all cases. Such a requirement would be cumbersome, and may lead to additional expense and delay for the parties. Instead, the Commission recommends providing VCAT with a broad discretion to order division or sale of the land as is seen to be appropriate. We recommend that this discretion should include the power to appoint or remove trustees where necessary. Trustees should be appointed where there are circumstances of violence, or where some of the co-owners are minors or are incapable of looking after their own affairs. VCAT should also have the power to direct the trustees as to the terms and conditions of the sale, and to distribute the proceeds in any manner VCAT sees fit.
In his second reading speech (Victorian Legislative Assembly, Parliamentary Debates (Hansard), 14 September 2005 at 878)), the then Attorney General in substance repeated the conclusions of the Commission. Concerning the appointment of trustees he said: VCAT will also have the power to appoint trustees to oversee the sale or division of the land. It is expected that VCAT will appoint trustees where there are circumstances of violence between the co-owners or where some of the co-owners are minors or are incapable of looking after their own affairs. VCAT will be able to direct the trustees as to the terms and conditions of the sale and to distribute the proceeds in any manner VCAT sees fit.

Argument and conclusions

Case law in New South Wales establishes that trustees for sale appointed under NSW CA s 66G have all the ordinary duties and obligations of trustees, including to get the best price, to make appropriate enquiries and to take expert advice and act on it if they consider it appropriate: Harb v Harb [2010] NSWSC 1251 at [11]. It is also established that, at least once the trustees have been registered as the proprietors of the property in question, the co-owner's rights of occupation cease. In Harb, at [15]-[19], Brereton J discussed the case law, concluding that after trustees have been appointed pursuant to s 66G, the rights of the owners of the property become rights to have the trust for sale performed and to share in the proceeds of sale. They no longer have a beneficial interests in the real property itself.
One of the cases to which his Honour referred was Abbott v Pegler (1980) 1 BPR 9267. Trustees for sale of a property were appointed under s 66G but one of the co-owners (Mr Abbott) maintained that they were not entitled to sell the subject land until determination of earlier proceedings in which Mr Abbott had claimed an interest in that land. Powell J stated, at 9270: … it is, in my view, clear that, upon the trustees becoming registered as the proprietors of the subject land, they took title free from any estate, interest or right which might thitherto have entitled Mr Abbott to occupy or remain in possession of the land (MacDiarmid v MacDiarmid (1956) 74 WN (NSW) 170) and the rights of Mr Abbott became, instead, a right to have the trustees execute the statutory trust and, if the property were sold, a right to receive his rightful share in the proceeds - indeed, the more correct view may be that, since the order itself operated as a conversion as from the date of the order ([NSW CA] s 66G (7)(b)) Mr Abbott thereafter had no estate, interest or right to occupy or remain in possession of the subject land (Burgess v Booth [1908] 2 Ch 648) even though the title to the subject land did not vest in the trustees until registration of the order.
I referred to this line of authority in last December's judgment. In distinguishing between the circumstances which obtained prior to the making of the sale orders and the circumstances which obtained thereafter, I stated (J3 [124]): The period after 31 October 2019 (strictly speaking, after 18 November 2019, when the Sale Trustee's appointment took effect) was different. Mr French had been in occupation of the properties as a co-owner, and any allowances he might have been entitled to depended upon his entitlements as such. From 18 November 2019, his rights and entitlements as co-owner ceased and were replaced by an interest, as beneficiary, in a share of the properties and any income derived from them ([Harb] at [16]-[19]). As occupier, he effectively became a licensee of the Trustee.
Later in the judgment, when addressing problems which had arisen from the fact that one of the five properties had never been registered in the names of Dr Bremner and Mr French, but had remained registered in the name of the vendor, who had later died, I stated (J3 [136]): … As initially constituted, the trust for sale resulting from the orders of 31 October 2019 was a trust for the sale of all five of the properties. The Trustee's duty was to sell all the properties and distribute the net proceeds. There were not five separate trusts for the sale of five separate properties. ...
Counsel for the Purchasers accepted that these passages in the judgment would have been an accurate statement of the position if the Sale Orders had been made under NSW CA s 66G. But counsel contended that they were not applicable in the present circumstances where the Court's power to appoint the Sale Trustee derived from the post-2005 version of PLA Part IV. Counsel pointed out that provisions for vesting of the property in question in the trustee (s 66G(1) and (3)) and for conversion (s 66G (7)(b)) were absent from Part IV.
Counsel developed this contention by pointing to the changes made in 2005 and the justifications put forward by the Victorian Law Reform Commission, and picked up in the second reading speech, for those changes. In particular, counsel pointed out that the Parliament in 2005 had adopted a statutory regime giving VCAT wide powers to direct the sale of co-owned property (by the parties) and the division of the proceeds without the need for the appointment of a trustee. In the ordinary course the property would be sold by the parties. It was clear, in counsel's submission, that this regime had been chosen in order to avoid technicality and rigidity.
Counsel acknowledged that Part IV provides for the appointment of trustees for sale had been included in some cases. But counsel submitted that this did should not skew its interpretation. Counsel suggested that a trustee appointed under PLA s 231 should be seen as an "agent" for the owners rather than a fully-fledged independent trustee. In this regard, counsel referred to my discussion in Rookwood General Cemeteries Reserve Land Manager v Attorney-General NSW [2022] NSWSC 1763 at [183]-[211] of the case law distinguishing between statutes which create a trust in the strict sense, on the one hand, and "statutory trusts" on the other. Counsel submitted that PLA s 231 fell into the latter category.
The usual practice in New South Wales is, I understand, that, following the making of a s 66G order, the appointed trustee is registered as the proprietor of the property in question (presumably under NSW RPA s 86). At the pre-trial hearing on 31 May, I asked Mr Stone's legal representatives why this had not happened in the present case. By way of explanation, an affidavit was filed and read at the hearing on 6 June from Mr Michael John Clements, a solicitor employed by the firm acting for Mr Stone. Mr Clements has 17 years' experience of practice as a solicitor in Victoria, primarily in property law. He deposed, based on his own experience as well as "research" that a person appointed, under PLA s 231, as trustee for the sale of co-owned land is not ordinarily registered on title following his or her appointment.
Mr Clements attributed this practice to TLA s 37, which provides: Entry of trusts in Register The Registrar shall not record in the Register notice of any trust whether express, implied or constructive.
Mr Clements also deposed to a discussion with Mr Khoi La who works with the Victorian Land Registry Services. Mr La's title is "Principal Expert (Registrations)". Mr La's opinion, as recounted by Mr Clements, is that: i. in Victoria, property does not vest in a trustee appointed under section 231 and that the Victorian approach is different to New South Wales (in respect of vesting); ii. section 37 of the [TLA] prohibits the recording of a trust on title; iii. if a person is recorded on title, the Registry would treat them as the owner. Given that section 37 of the [TLA] prohibits the recording of a trust, if a trustee appointed under section 231 of the [PLA] was to be recorded on title, the Registry would (in the absence of any ability to record their trustee status) assume that they (the person recorded on title) were the owner and they could deal with the land however they wanted; and iv. under section 231 of the [PLA], the person is just appointed to effect the sale process and to sign documents (if ordered) and to distribute proceeds.
According to Mr Clements, Mr La added that a trustee appointed under PLA s 231 cannot lodge a caveat because (in Mr La's opinion) such a trustee does not have a caveatable interest in land.
In the course of their submissions, counsel for the Purchasers invited me to accept the opinions expressed by Mr Clements and Mr La as expressing the correct understanding of the effect of PLA s 231.
Counsel for the Sale Trustee and counsel for Dr Bremner contested these submissions. There was some difference in emphasis between them, but no actual disagreement.
Neither the Sale Trustee nor Dr Bremner was a party to the Sale Agreement which is the source of the Purchasers' claim in the 2024 proceedings. One might ask what jurisdiction the Court has to order them to assist the Purchasers in obtaining the benefit of that Agreement. They have no obligation to do so under the BA, and it is hard to identify any legal or equitable doctrine which could give rise to such an obligation either. The Court, of course, has power under PLA Part IV to give directions to them associated with effecting the sale of the properties under the Sale Orders, but that jurisdiction can be invoked by way of motion (provided the Purchasers have standing, a topic to which I will return below) in the 2014 proceedings, and did not require the institution of fresh proceedings. This point was not, however, explored in the submissions by counsel for the parties and I will say no more about it.
I accept that in the usual case a sale under the post-2005 version of PLA Part IV is undertaken by the parties themselves pursuant to orders and directions made by VCAT. But the present case is not of that character. I have in fact made an order appointing Mr Stone as trustee for sale of the five properties. The question for determination is what, as a matter of interpretation of PLA s 231, the effect of that order was. How the interests of the parties should be characterised in the usual case, where no trustee is appointed, does not arise for decision and does not need to be considered.
The starting point is that PLA s 231 refers to the appointment of a "trustee". In deciding between a trust in the strict sense and a statutory trust, such terminology is not decisive, but it is relevant.
It is also relevant that PLA Part IV is concerned with private rights (namely, the realisation of the property in question and the determination of the parties' rights to the proceeds) rather than the discharge of public functions (Registrar of Accident Compensation Tribunal v Commissioner of Taxation (1993) 178 CLR 145 at 163-164). This point is reinforced by the broader history. Conveyancers originally devised trusts for sale centuries ago: Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015) ("MGL") at [35-125]. When, in the nineteenth century, statutes began to be enacted providing for the appointment of trustees for sale, those statutes were only adopting a well-established private law institution for other private law purposes.
If the argument by counsel for the Purchasers were correct, co-owners of a property the subject of an order under PLA s 231 would, despite the order, remain fully entitled to deal with their interests in the property. That would include disposing of their interests to third party purchasers. Any interest thus disposed of would cease to be saleable by the trustee. Indeed, on the Purchasers' argument in the present case, the trustee would be obliged to assist the rival transaction.
Such a consequence would defeat the whole purpose of appointing an independent person to effect the sale. The trustee's efforts would be liable at any point prior to sale to be rendered irrelevant, with a consequent wastage of costs. Counsel for the Sale Trustee submitted, and I agree, that this is a most unlikely intention to attribute to the Parliament. It is particularly unlikely where one of the co-owners may be subject to pressure or coercion, which is the very type of case in which the Commission considered a trustee would usually be appointed.
I do not think that it answers these points to say that the trustee is an agent rather than a trustee in the strict sense. Subject to any contrary terms of the contract of agency, an agent must act in accordance with the principal's instructions and the agent's authority may be terminated at any time by the principal, at which point the agent must account to the principal for any property entrusted by the principal to the agent. In the present case, the Sale Trustee's authority and instructions come from orders of the Court, which may be directly contrary to the wishes of one or other of the co-owners. If it is correct to see the Trustee as the representative or agent of someone else, that someone would be the Court, not the co-owners.
The Commission's Discussion Paper and Report, and the second reading speech, do not displace these conclusions. Indeed, I think that they support them.
It needs to be borne in mind that the regime which was replaced in 2005 was the regime under the 1958 version of PLA Part IV. That regime did not include the appointment of trustees for sale; rather, the sale of property was dealt with by way of directions made by the Supreme Court or the County Court, as the case might be (s 222). Trusteeship was only a feature of the 1958 regime once the property had been sold and it became necessary to receive and distribute the proceeds (s 227). The Commission expressly acknowledged the utility of the trustee procedure, so far as sale was concerned, in that, in the ordinary case, there is no need for the Court to be concerned with these matters at all.
In this context it would be wrong to see the enactment of the new PLA Part IV as a wholesale rejection of the "NSW approach" reflected in s 66G. Rather, as counsel for Dr Bremner submitted, the Commission accepted that such an approach would an improvement on the 1958 Part IV, and effectively adopted that approach for cases which needed it.
For these reasons, I reject the submissions by counsel for the Purchasers. In my view, a trustee for sale appointed under PLA s231 is a trustee in the ordinary sense. This leads me to three conclusions.
First, the Sale Trustee is entitled, if he wishes, to be registered as the proprietor of any or all of the five properties the subject of the Sale Orders. This does not depend upon a vesting order being made. It is simply a consequence of the order appointing Mr Stone as trustee for sale.
A trustee's function is to hold the legal title to the trust property, and exercise the rights which that legal property confers, for the benefit of the beneficiaries under the terms of the trust. One of the trustee's most basic duties is to get in the trust property by ensuring that the title is, if not in their names, at least in their control: Heydon JD, Leeming MJ, Jacobs' Law of Trusts in Australia (2016, 8th ed, LexisNexis Butterworths) at [17-02]. A vesting order is one, but only one, way in which that can occur. The trustee's status as trustee does not depend upon getting in the legal title, it is the other way around.
It should be noted that NSW CA s 66G(2) does not provide for vesting where the appointed trustee is already trustee of the property. In the usual case, the trustee would already have got in the legal estate, but it still reinforces the point that the critical step in clothing the trustee with responsibility for effecting the sale is appointment, not vesting.
So far, Mr Stone has not found it necessary to go onto the title himself. Instead, he has proceeded in accordance with what the evidence indicated is the usual Victorian practice of obtaining directions from the Court obliging Dr Bremner and Mr French to deal with the legal title in accordance with his requirements.
But clearly trustees appointed under PLA s 231 are entitled to obtain the legal title if they want it. This can be achieved in various different ways. If co-owners fail to comply with a request for transfer by a trustee, an application may be made for a vesting order under TA s 51(2). And, although the express picking up of TA s 57 has been deleted from the post-2005 version of PLA Part IV, a s 231 order would appear to answer the description of a "judgment…. for partition or sale in lieu of partition" for the purposes of that section, so that it would still be available. Once a vesting order has been obtained, the trustee can proceed to registration under TLA ss 58 or 59. Indeed, TLA s 59 would appear to be directly available even without the making or a vesting order.
An even simpler course would be to apply for an order under PLA s 232(i) requiring the co-owners to transfer the title to the trustees, or for an order under PLA s 232(j) directly providing for registration. I have no doubt that, if required to facilitate the sale or safeguard the property in the meantime, such orders would be made as a matter of course.
In these circumstances, the Court would not have tolerated Mr French delaying or frustrating the discharge of Mr Stone's duties under the Sale Orders by transferring his share of the properties to the PIA Trustee (or the Purchasers). For this reason alone, the Court would not now make any order which would result in the transfer of the title to the properties out of Mr French's name prior to the sale. Nor is there any basis on which the Sale Trustee or Dr Bremner could be required to assist with any such transfer.
My second conclusion, which may only be a broader way of expressing the first conclusion, is that, upon the making of the Sale Orders, Mr French no longer had any interest in the five properties apart from a bare legal title to the properties. The beneficial interest in those properties, which Mr French previously held, was replaced by an entitlement to receive a distribution from the proceeds in accordance with the Sale Orders, or such further orders which the Court might make in that regard. In substance, I consider that the propositions in Harb are equally applicable to a trustee appointed under PLA s 231.
With all respect to those who may be of the contrary opinion, I do not see TLA s 37 as justifying any departure from those propositions. TLA s 37 is not unique to Victoria; it has an equivalent in other States and Territories (in New South Wales, RPA s 82). It, and its equivalents elsewhere, reflect a basic principle of the Torrens system, namely that the Register is made up of defined legal interests and does not include equitable interests: see Edgeworth B, Butt's Land Law (7th ed, 2017, Thomson Reuters) at [12.670].
The idea that a person who becomes a trustee is entitled to be registered as the legal title holder is entirely consistent with this principle. There is no basis for a concern of the type attributed to Mr La that upon registration Mr Stone would be free to deal with the properties. That is exactly what he is supposed to do under the Sale Orders.
Nor is it relevant that PLA s 231 contains no reference to conversion similar to that found in NSW CA s 66G(7)(b). In the first place, the circumstances of this case do not require any consideration of the equitable doctrine of conversion. That doctrine is concerned with the rules of succession law which distinguish between realty and personalty. Under the doctrine, personalty may be treated as if it was realty, or vice versa. The doctrine is related to, or is perhaps a particular application of, the maxim that equity regards as done that which ought to have been done. To say that a statutory trust for sale changes the co-owners' interest from ownership of realty to an entitlement to the proceeds of sale does not require recourse to the doctrine. It is no more than a statement of how the statute operates: see MGL at [35-005, [35-125]. In any event, it seems that for the purposes of the doctrine s 66G(7)(b) is only declaratory of the general law: Burgess v Booth [1908] 2 Ch 648; Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 657-658.
The third conclusion concerns the consequence of the assignment from Mr French to the PIA Trustee having covered only three of the five properties which were the subject of the Sale Orders. Counsel for the Purchaser submitted that, as a matter of construction of the Orders, I was wrong to say that there was one trust rather than five. In support of this submission, counsel relied on the chapeau to order 5 which refers to "each of" the three properties.
I do not accept this submission. The critical order is order 2, and that refers to the appointment of Mr Stone as trustee for sale of all five properties, rather than each of the five properties individually. The position, I think, is put beyond doubt by order 5(e)(i), which expressly permits the receipts from one of the properties to be applied towards holding, maintenance or sale expenses associated with the other properties.
It follows, in my view, that Mr French's beneficial interest in the proceeds of sale was an interest in the fund as a whole, that is, the proceeds of all five properties. When Mr French purported to transfer his interest in three of the five properties to the PIA Trustee that was not an assignment which could take effect at law, entitling the PIA Trustee to make a claim to a share of the proceeds in his own name. It could only take effect as an assignment in equity: Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 29-30. The PIA Trustee was only entitled to a share of the proceeds received by Mr French upon the completion of sale of all five properties.
If I am wrong in thinking that the effect of the Sale Orders was to create a trust in the strict sense, and instead it created only a "statutory trust", then none of the conclusions which I have stated would be affected. The line between a statutory trustee and a trustee in the strict sense is a very fine one. In most situations, the classification will make no practical difference to the relief which can be obtained by, or against, the trustee: cf Rookwood at [263]-[264]. In particular, if Mr Stone were only a statutory trustee, the Court would still recognise him as being entitled (and indeed obliged) to proceed with the sale of the properties, and for that purpose to obtain or control the legal title to those properties, and the Court would still see the Purchasers interest as limited to a share of the eventual proceeds.
Finally, if I am wrong in these conclusions, I would still not make the orders which the Purchasers seek. That is because Mr French has not been joined as a party to the proceedings. The orders are designed to obtain the transfer of the legal title from Mr French, who now holds it, to the Purchasers. In my view, Mr French clearly had an interest in opposing those orders and was entitled, as of right, to be heard: John Alexander's Clubs Pty Ltd v White City Tennis Club (2010) 241 CLR 1 at [131].
I have not overlooked the fact that notice was given to Mr French of the proceedings. That notice was belated; it was given only after the proceedings had been fixed for final hearing only a few days later. But, in any event, the entitlement is to joinder, not merely notice: John Alexander's Clubs at [140]. Mr French was entitled to ignore the notification and to treat any resulting order as a nullity.

2014 proceedings

In their final submission, counsel for the Purchasers produced a revised and expanded list of orders which they sought to have the Court make. The application was a bold one. The Court was asked to vacate paragraphs 2(a)(b)(c) and 5 of the Sale Orders. In place of a sale of the three properties by public auction, orders were sought for valuations of the properties to be obtained and for the Purchasers to be entitled to buy Dr Bremner's 50% interest in the properties at the prices so obtained.
If the Purchasers chose not to buy Dr Bremner's share of any of the properties, the properties in question were to be sold at public auction. The sale was to be conducted by a nominated real estate agent (who, I understand, is one of the agents retained by the Sale Trustee) and a solicitor jointly instructed by Dr Bremner and the Purchasers, with the costs of sale to be paid out of the proceeds and the balance to be divided equally between the Purchasers and Dr Bremner, but with Dr Bremner's share being paid into Court until further order.
The effect of these orders would be to remove Mr Stone from any ongoing involvement in the sale of the three properties. Counsel for the Purchasers proposed consequential orders that Mr Stone's remuneration and costs be paid by Dr Bremner and Mr French equally for the period up to the date of the Sale Agreement (28 March 2024) and, thereafter, equally by Dr Bremner and the Purchasers. But the amount payable by the Purchasers was not to include Mr Stone's remuneration for the period after the Sale Agreement or his costs of these proceedings.
The remaining two properties were to be left to Mr Stone to sell, with the proceeds to be applied, in each case, towards costs and expenses associated with the holding, maintenance (including defence against bushfires), or sale of the property and the trustee's remuneration "in respect of" the sale of that property.
The Sale Orders, in their current form, reserve two questions for further consideration (order (6B)). But, leaving aside for the moment any question of standing, the application by the Purchasers goes far beyond asking the Court to make further orders on those reserved questions. Rather, it is a wholesale attempt to rewrite the Sale Orders so that they accord with the Purchasers' wishes, presumably based on their perceived commercial advantage.
In last December's judgment, I raised a question as to the application of the principle in Woods v Sheriff of Queensland (1895) 6 QLJ 163 which prevents the Court from entertaining an application to amend or discharge orders previously made, whether interlocutory or final (J3 [141]). For the purposes of that principle, it is necessary to distinguish between two types of order. There seems to me to be no difficulty with an application to vary orders which might be classified as mechanical, such as orders prescribing the mode or method of sale. But orders which I referred to as "substantive" orders, which determine the rights of the parties (including, for present purposes, Mr Stone) to the proceeds are another matter. I expressed the view that the Woods principle would seem to prevent such orders being reconsidered.
As the application is now presented, the Purchasers seek orders which would: 1. interpose a new method of realising the three properties, involving a change to the nature of the property being realised (that is, Dr Bremner's half share rather than the property as a whole), to be determined in accordance with a valuation rather than a sale on the open market (cf J3 [112]-[117]); 2. deprive Mr French (and Dr Bremner) of their entitlement to make a claim for expenses incurred and services provided in maintaining those properties since the Sale Orders were made (cf J3 [118]-[128]); 3. deprive Mr Stone of his entitlement to have his remuneration and disbursements paid out of the costs of sale and, in the case of his costs and disbursements of these proceedings, deprive him of recoupment of such costs and disbursements entirely; 4. at the same time, deprive Mr French and Dr Bremner of the opportunity to require Mr Stone to justify his remuneration and disbursements (cf J3 [129]-[133]); and 5. override the reservation of how Mr French's share of the net proceeds are to be apportioned, replacing it with a formulation based on "costs in respect of the sale", the content of which is unclear (cf J3 [134]-[140]).
These features of the proposed orders are substantive rather than mechanical in nature. I acknowledge that I have already varied the Sale Orders once, but further reflection only serves to reinforce the conclusion I tentatively reached last December that this was impermissible. The Orders stand because there has been no appeal against them. But that is no reason to make the same mistake again. In my view, the Woods principle prevents me from entertaining the Purchasers' application.
If I am wrong in this view, I would still, as a matter of discretion, decline the application. The Sale Orders were exhaustively reconsidered last year. The Purchaser's predecessor in title (the PIA Trustee) participated in that hearing. The sale process is well advanced and, if I were to make the orders sought, that could well result in further delay and expense. As a matter of discretion, the proper course would simply be to leave the orders in their current form to allow the sale to complete and then to deal with any reserved matters in the way contemplated by the Sale Orders.
Finally, the same problem arises as arose in the 2024 proceedings: Mr French has not been joined. Even more clearly, the orders sought affect his interests. As the present motion was not filed until after the hearing took place on 6 June, Mr French has not even been notified of it. Even if I were wrong on other questions, the application would have to be refused for that reason alone.
Strictly speaking, as a result of my earlier conclusions, the PIA Trustee probably had no entitlement to be joined as a cross-defendant in the 2014 cross-claim. However, as I have stated, I reserved an issue for determination as between the PIA Trustee about the division of the proceeds and that, I think, is sufficient to give the PIA Trustee ongoing standing. However, the same cannot be said for the Purchasers. At present, they have been joined as additional cross-defendants, that is, additional to the PIA Trustee. If they are not to be substituted for the PIA Trustee then the appropriate order might be for them to be removed as cross-defendants and for the further determination of the reserved issue to be dealt with by the PIA Trustee, but I leave that question for the parties to consider.
It must be borne in mind that I only reserved determination of two specific issues. In last December's judgment I dealt finally with all other questions of entitlement. And, as I have pointed out, neither the PIA Trustee nor the Purchasers, as the assignee of the PIA Trustee, has sought to take advantage of my reservation of that issue for further consideration. On the conclusions I have stated above, neither the PIA Trustee nor the Purchasers would have standing to address any other issue.

Orders

Counsel for the Purchasers accepted that, given my conclusions, the 2024 proceedings and the Purchasers' motion in the 2014 proceedings should be dismissed. Counsel also accepted that there should be orders for costs in favour of the Sale Trustee and Dr Bremner. But, as already noted, counsel then asked me not to make orders disposing of the proceedings, so that an application could be made for orders to preserve the position pending an appeal, and I acceded to that request.
The orders of the Court on 20 June were: 1. Adjourn the proceedings to 28 June 2024 at 2pm before Parker J.

Amendments 05 July 2024 - [41] addition of missing word 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: 05 July 2024

New South Wales (Conveyancing Act 1919(NSW)

(Real Property Act 1900(NSW)

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