Supreme Court of WA|2008-04-29|Before: Ipp J, Newnes J

CAMERON -v- RENOUF [2008] WASC 60 (29 April 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : CAMERON -v- RENOUF [2008] WASC 60

Practice and procedure - Claim by plaintiffs that house was gift from defendants - Order at trial that defendants transfer house to plaintiffs - Liability for outstanding rates and taxes not considered at trial - Encumbrance on title by local authorities for outstanding rates and taxes - Transfer of house unable to be effected until rates and taxes paid - Reservation of liberty to apply at trial - Whether applies to determination of liability for outstanding rates and taxes - Ambit of liberty to apply - Turns on own facts

1 NEWNES J: This application involves a very unfortunate and very long running family dispute. The application is made by the defendants (the Renoufs) who seek a declaration that any amounts owing to the City of Joondalup, the State Revenue Department or the Water Corporation for rates, taxes, charges, interest and penalties owing in relation to the property at 22 Meridian Drive, Mullaloo (the Mullaloo property) are the responsibility of the plaintiffs (the Camerons) or alternatively the first-named plaintiff (Mr Cameron).

2 The Renoufs also seek an order that the obligation of the first-named defendant, Ms Renouf, pursuant to orders made by this court on 3 October 1997, to do all things necessary to cause the Mullaloo property to be registered in the name of the Camerons, does not include payment of the outstanding rates and taxes or procuring the discharge of any encumbrances against the certificate of title in respect of rates and taxes.

3 The application was heard on 30 January 2008 and on 29 February 2008 I received some further material I had requested in connection with it.

4 Before turning to the particular issues which arise on the application, it is necessary to describe the context in which the application arises.

5 In 1996, the Camerons commenced the current action against the Renoufs claiming a declaration that the Camerons were the owners in equity of the Mullaloo property and seeking an order that Ms Renouf, who is the Camerons' daughter and was (and is) the registered proprietor of the Mullaloo property, transfer the property to them. The Camerons contended that, on 21 July 1986, in the course of a telephone conversation, the Renoufs represented to them that the Mullaloo property had been purchased by the Renoufs as a gift, that it was the Camerons' property, and that they should move to Perth to live in the house. At the time, the Camerons were living in Auckland and the Renoufs were living in Sydney.

6 The Camerons said that the Renoufs repeated, in substance, those statements to them on 4 December 1996 in Sydney.

7 The Camerons said that they acted on the faith of those representations. With the encouragement and acquiescence of the Renoufs, the Camerons wound up their personal affairs and Mr Cameron wound up his business affairs in Auckland and they migrated to Australia to take up residence in the Mullaloo property. The Camerons said that after taking up occupancy of the Mullaloo property they made various improvements to it.

8 The Renoufs denied that they made any representation of the nature alleged and said that the Camerons were otherwise committed to travel to and reside in Perth.

9 The Camerons' claim went to trial in September 1997. At the trial, counsel for the Renoufs conceded that should the Camerons succeed in establishing the representations and relevant detriment, they would be entitled to the orders they sought.

10 On 3 October 1997, Ipp J delivered his reasons for judgment, in which he concluded that the Camerons had made out their case. His Honour then heard from counsel as to the form of orders that should be made. The orders ultimately made by his Honour were, so far as relevant, as follows:

The property known as 22 Meridian Drive, Mullaloo in the State of Western Australia ... is vested in fee simple in equity in the plaintiffs.
The first-named defendant forthwith do all acts and things requisite to cause the property to be registered in the name of the plaintiffs including but not limited to:

(a) signing a transfer in registrable form transferring all of her right, title and interest in the property to the plaintiffs;

(b) causing the duplicate certificate of title in respect of the property to be delivered to the plaintiffs' solicitors.

The parties shall have liberty to apply in relation to the implementation of these orders.
There be no order as to costs and that the parties bear their own costs.

11 It is apparent from the reasons for judgment of Ipp J and the transcript of the trial that which of the parties was liable to pay the outstanding rates and taxes on the property, in the event that the Camerons' claim was successful, was not an issue that was specifically canvassed at the trial. The question of the rates and taxes was, however, referred to and I will come back to that shortly.

12 At some time shortly after judgment, there arose a dispute between the parties as to who bore the liability for the outstanding rates and taxes, there being significant arrears owing. A stalemate developed between the parties and that remained the position for some years. Recently, the Renoufs have sought to resolve the impasse by bringing the current application.

13 The present position is that the City of Joondalup and the Water Corporation have each lodged a memorial against the certificate of title in respect of the money owing to them. Until those memorials are removed by payment of the outstanding rates and taxes, the transfer of the Mullaloo property to the Camerons pursuant to the judgment cannot be effected. I understand from counsel that the amount of the arrears of rates and taxes is currently in the order of $57,500. An amount of some $40,300 is owed to the Water Corporation and an amount of some $17,200 is owed to the City of Joondalup. No amount is thought to be owing to the State Revenue Department.

14 I should also mention that the second-named plaintiff (Mrs Cameron) did not appear and was not represented on the application. I understand that while Mr Cameron continues to live in the Mullaloo property, Mrs Cameron has not done so for a number of years.

15 This application is brought by the Renoufs pursuant to the liberty to apply granted by Ipp J on 3 October 1997. When the application first came before me, I directed that it go to mediation, in the hope that the parties might be able to resolve it between them. Regrettably, that did not turn out to be the case and the matter has come back to me for determination.

16 The first issue on the application is whether the relief sought by the Renoufs falls within the liberty to apply provision.

17 It was argued on behalf of Mr Cameron that the liberty to apply provision has no application; that the present dispute involves matters that could have been, but were not, pleaded and pursued in the substantive hearing, when any necessary evidence could have been led. Mr Cameron says that the present application is not consequential upon the orders made by Ipp J and that the issues now raised by the Renoufs could only be pursued in fresh, separate proceedings. To determine those issues in this action would offend the public interest in, and the private right to, finality of judgment, as it would require re-opening the evidence at the original trial.

18 It was also contended on behalf of Mr Cameron that the order that Ms Renouf 'do all acts and things requisite to cause the property to be registered in the name of the plaintiffs' requires Ms Renouf to cause the memorials to be discharged by payment of the outstanding rates and taxes. Accordingly, the present application in fact seeks a variation of the orders made by Ipp J, something which cannot be done under a liberty to apply provision.

19 It was submitted on behalf of the Renoufs that the question of the rates and taxes was not considered at the trial because it was not, at that point, an issue between the parties. The question of who was liable for the rates and taxes could not be determined until after it had been determined whether or not the Camerons were the beneficial owners of the Mullaloo property.

20 It was further submitted that, in fact, at the trial it had appeared there was no issue as to the Camerons' liability to pay the rates and taxes. Counsel for the Renoufs referred to the following exchanges in the course of Mr Cameron's cross-examination at the trial:

JAMES MR: Did [Mr Renouf] say to you 'You'll have to pay the outgoings, including the insurance and rates?'---Well, I expected that. If the house was a gift, I would have to do that, wouldn't I?

But did he say to you, 'You'll have to pay the outgoings?'---He asked me for a cheque because he had paid the rates and he asked me for reimbursement, which I did.

Yes?---And as a matter of fact I paid them twice. He was refunded the money and he kept it.

...

But did he say that you would have to pay the rates and insurance on the house?---There was a natural assumption. If I owned the house, it was going to be ...'

IPP J: Did he say it? Did he say it or didn't he say it?---He said it, as I said before.

21 It was submitted that therefore it did not appear to be a matter that required to be determined by the trial judge, there apparently being no dispute on the Camerons' part that if they were successful it followed that they would be liable to pay the rates and taxes assessed on the property since they had occupied it.

22 I should interpose that in the course of argument on this application, counsel for Mr Cameron conceded that Mr Cameron was liable for the rates and taxes on the Mullaloo property at the pensioner rate for the period since the Camerons had taken up occupation (Mr Cameron having been at all relevant times a pensioner), but contended that he was not liable for rates and taxes at the normal, non-pensioner, rate or for interest and penalties on the overdue rates.

23 Counsel for the Renoufs argued that the specific purpose of the order for liberty to apply was to deal with any problems that arose in implementing the order that the Renoufs transfer the Mullaloo property to the Camerons. Such a problem has arisen in that effect cannot be given to that order until the rates and taxes have been paid and the memorials removed. That requires a determination of who is liable for the rates and taxes.

24 While he did not concede that he would be found liable, I understood it was accepted by Mr Cameron that if his contention in respect of the liberty to apply provision is correct, it would still be open to the Renoufs to commence fresh proceedings seeking to recover the amount of the outstanding rates and taxes. In the course of argument counsel for the Renoufs referred to possible claims that the Renoufs were, at all material times, trustees of the Mullaloo property for the Camerons and the rates and taxes were amounts incurred by the Renoufs as trustees for the benefit of the Camerons, or that (having regard to matters referred to in evidence at the trial) the Camerons were now estopped from denying liability for the rates.

25 I should say, however, that, understandably, neither counsel appeared to evince any enthusiasm for a fresh round of litigation, with all the further time and costs that would be involved, over the relatively modest amount currently in issue between the parties. It is obviously a very unattractive prospect. It is unfortunate enough that the present application appears already to have absorbed substantial time and costs.

26 I do not accept the contention put on behalf of Mr Cameron that the effect of the order requiring Ms Renouf to 'do all acts and things requisite to cause the property to be registered in the name of [the Camerons]' is that Ms Renouf must pay the outstanding rates and taxes, as the payment of them is the only means of removing the encumbrance on the title. In the first place, I think it is clear that that order was not intended to apply to a matter of the present nature but only matters of a more procedural nature. In any event, in my view the order could only have been intended to refer to 'acts and things' required on Ms Renouf's part to be done. That then leads back to the question of who, as between the parties, is liable to pay the outstanding amounts. If, as between the parties, the liability to pay the outstanding rates and taxes in fact lies on the Camerons, it could never have been intended by the order that Ms Renouf should first have to meet a liability of the Camerons simply in order to effect a transfer of the land, leaving Ms Renouf then to seek to recover the amount of it from the Camerons.

27 While the case for the Camerons was put on the basis that the issue of the liability for the rates and taxes was a matter that could and should have been raised by the Renoufs at the trial, the real difficulty, it seems to me, is that neither party addressed the issue of who, as between them, was liable for the rates and taxes if the Camerons' claim was successful. As that issue was not determined at the trial, there is now an impediment to effect being given to the principal relief obtained by the Camerons. Can it be resolved under the liberty to apply?

28 The purpose of a reservation of liberty to apply is to enable further orders to be made which are necessary for the purpose of implementing and giving effect to the principal relief already pronounced in the action: Cristel v Cristel [1951] 2 KB 725, 729 - 730; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 [79]. But it cannot be used to alter the substance of an order already made: Dowdle v Hillier (1949) 66 WN (NSW) 155, 156; Cristel v Cristel.

29 In Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593, McPherson SPJ described what is involved in liberty to apply as follows:

[A] judgment or order that expressly reserves to parties a leave or liberty to apply can be varied on an application pursuant to such leave only so far as may be necessary for the purpose of working out the actual terms of the order so as to make it more efficacious in matters of detail. What is meant in this context by 'working out' the terms of an order is considered in some of the cases on the point. In Cristel v Cristel [1951] 2 KB 727, 728, Somervell LJ said it 'involves matters on which it may be necessary to obtain the decision of the court. Prima facie, certainly, it does not entitle people to come and ask that the order itself shall be varied'. A simple judgment for a money sum requires no 'working out' in any sense, so that liberty to apply is quite inappropriate in such a case. On the other hand, there are many orders, particularly on the equity side, as to which the process of carrying the primary judgment into effect may require supervision, with the consequence that further or supplementary orders or directions may be needed to enable it to achieve its purpose. An example commonly encountered in practice is specific performance, where, because the consent or approval of some person or instrumentality may be needed to authorise a preliminary step, the judgment sometimes takes the form only of a declaration that the contract be specifically performed, together with subsidiary orders compelling particular acts to be done. See Egan v Ross (1928) 29 SR (NSW) 382, 388; Hasham v Zenab [1960] AC 316; Brown v Heffer [1967] HCA 40; (1967) 116 CLR 344, 350. The primary order may then need to be supplemented by further orders from time to time before the stage is reached at which the defendant can finally be ordered to perform specifically what he contracted to do in the way of transfer or payment as the case may be: Brown v Heffer [1967] HCA 40; (1967) 116 CLR 344, 350.

In Penrice v Williams (1883) 23 Ch D 353, 356-357, Chitty J spoke of an order that is 'clearly not of a final character, and also when there is necessarily something to be done irrespective of what appears on the face of the order'. His Lordship was there explaining that in some cases an order may by its very nature need to be supplemented to give full effect to it, in which event liberty to apply is implied and need not be expressly reserved. See also Fritz v Hobson (1880) 14 Ch D 542, 561; Cristel v Cristel [1951] 2 KB 727, 731. A decree of specific performance in the limited form previously described nevertheless is a 'final' order for the purpose of appeal and otherwise, and so, at least as to issues litigated, cannot be discharged or varied under liberty to apply, notwithstanding that further decisions and orders may yet have to be made in working out its consequences. What cannot be done under the guise of 'working out' an order is to vary it. (598)

30 It is important to note that a reservation of liberty to apply is not inconsistent with the making of final orders for the principal relief. As the Full Federal Court observed in Abigroup Ltd v Abignano [1992] FCA 567; (1992) 39 FCR 74, in the course of discussing the nature of a reservation of liberty to apply:

Historically the reservation by the Court of Chancery of further consideration of a decree was intended to cover the circumstance where following the pronouncement of the decree (a final decree) a further hearing was necessary for the court to deal with some outstanding issue sometimes requiring taking further evidence and making further declarations or orders. But this did not detract from the initial orders as being final orders. Rather it was a mechanism designed by the Court of Chancery to obviate the necessity of a further suit being instituted to deal with matters that were essentially consequential upon the making of the initial final decree. This demonstrates that there is no inconsistency between the making of final decrees, judgments or orders or declarations and subsequent orders of the court. It all depends upon the circumstances of the case and the particular orders or decrees formulated by the court. (88)

31 In determining the ambit of a reservation of liberty to apply, it is necessary to have regard to the nature of the final orders made in the action. The Court of Appeal of New South Wales pointed out in Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104 that

what can be done under a reservation of liberty to apply depends on what needs to be done, in the particular case, to work out the particular orders that have been made. If an order is one the working out of which of its nature involves deciding complex questions, or questions that were not specifically raised at the time that the order was made, those questions can be raised and decided in the original suit pursuant to liberty to apply. [56]

32 The Court of Appeal noted ([64]) that applications under a reservation of liberty to apply are not necessarily limited to pure matters of machinery or matters that can be disposed of in a summary way. The court also pointed out that a reservation of liberty to apply must be understood in the context of contemporary practices and procedures of the court and (in NSW) by reference to s 56 of the Civil Procedure Act 2005 (NSW), the latter being to a similar effect to O 1 r 4B of the Rules of the Supreme Court 1971 (WA), namely, that the processes and procedures of the court are to be conducted so as best to ensure the just, efficient and timely determination of litigation at a cost affordable to the parties. In my respectful view, the same approach is to be taken to liberty to apply in this jurisdiction.

33 The order for the transfer of the Mullaloo property to the Camerons inevitably involved a number of steps that would have to be taken by the parties after judgment to give effect to it. For obvious reasons, the court did not seek to set out all of the steps that would, or may need to, be taken. Some, only, of the essential procedural steps were set out in the order.

34 It is clear that in fact one of the steps that will have to be taken to enable the transfer to take place is payment of the outstanding rates and taxes, so that the memorials can be discharged. Although counsel for Mr Cameron sought to make something of the fact that Ms Renouf, as the registered proprietor of the Mullaloo property, is liable under the relevant statutes for the rates and taxes, in the present context that does not seem to me to be to the point. The substantive issue is, as between the parties, which of them is liable for the outstanding rates and taxes, and if both, in what proportions respectively. It is the case that until the rates and taxes are paid and the memorials discharged Ms Renouf cannot comply with her obligation to transfer the Mullaloo property to the Camerons. However, if (as between the parties) the Camerons are liable for the rates and taxes, they can hardly complain that the transfer has not been effected while they refuse to pay those charges and thereby cause the memorials to be maintained.

35 As I have mentioned, the issue of liability for the outstanding rates and taxes could be left to a fresh round of litigation. In the circumstances, that is hardly a desirable or convenient course. Nor, in my view, is it one compelled by the form of orders made by Ipp J. The fact that there are other, much less convenient, ways to resolve issues which arise in the course of working out the order for the principal relief is not a reason to read the reservation of liberty to apply narrowly or to treat it as necessarily excluding those issues.

36 The essential position is that the order for the principal relief requires Ms Renouf to transfer the Mullaloo property to the Camerons. In practical terms, effect cannot be given to that order while the rates and taxes remain outstanding. It is clear that the rates and taxes will not be paid until the liability for them, as between the parties, has been determined. In order to give effect to the principal relief, it is therefore necessary that that issue of liability be determined. I am satisfied that the determination of it falls within the reservation of liberty to apply, albeit the precise nature of the relief that should be granted upon its determination is a matter that may require further consideration.

37 It was common ground that if I reached that view, the matter should be relisted so that directions could be given for the determination of that issue. I will therefore hear the parties on those directions. In view of the amount involved, it hardly need saying that the parties need to give close attention to the most efficient and least costly method of resolving the matter.

CAMERON -v- RENOUF [2008] WASC 60 (29 April 2008)

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CAMERON -v- RENOUF [2008] WASC 60 (29 April 2008)

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