Croghan v Blacktown City Council

Appointment of trustee appropriate

1. Section 186(1) of the SSD Act provides expressly for the making of ancillary orders to give effect to a strata renewal plan. Such an application can be made after the order giving effect to the strata renewal plan is made: subs (3). Any person may make an application for such an order with leave of the Court: subs (4). The appointment of a trustee of property in order to facilitate its sale is expressly provided for in s 186(2)(a). An order vesting property in the trustee appointed is expressly provided for in s 186(2)(b). An order requiring the provision of the owner's certificate of title to the trustee can be made under s 186(2)(c).
2. Ms Harris is already bound by the orders made in SP No 61299 (No 1) to do that which is required to give them effect. The affidavit evidence of Mr Pang outlines the extensive steps taken to alert Ms Harris to the Class 3 proceedings and the obligation to comply with any orders made by the Court and of the outcome of the application to the Court. The appointment of a trustee will enable the orders already made to be given effect. It is appropriate that an order for the appointment of a trustee for lot 63 be made.
3. Mr Griffiths the proposed trustee has the necessary experience and qualifications to undertake the relatively straightforward task required of executing the contract for sale and ensuring the discharge of the mortgage held by HSBC. All that is required to discharge the mortgage is the lodgement of the necessary discharge form. He has provided an estimate of fees of the likely work required in his affidavit.
4. The mortgagee HSBC holds the certificate of title according to Mr Pang's affidavit. HSBC as mortgagee is also bound by the orders made in SP No 61299 (No 1). It is therefore appropriate that orders be made binding it to deal with the discharge of the mortgage and delivery of the certificate of title as required to effect the collective sale of the strata scheme.

Costs

1. Orders are sought for payment of the trustee's costs and of this application to be payable from the proceeds of the sale of lot 63 rather than be borne by the OC on behalf of all complying lot owners. I was informed that the amount allocated for costs incurred by the OC throughout the Court process, which the purchaser agreed to pay in s 3.3 of the strata renewal plan, has been exhausted. In the absence of a costs order the OC will therefore pay these costs.
2. Section 188 of the SSD Act is a costs provision dealing with the costs of proceedings for an application for an order to give effect to a strata renewal scheme in the case of a dissenting owner. The SSD Act does not have any provisions dealing with ancillary orders such as the payment of a trustee's fees if someone is appointed pursuant to s 186(2). Nor does the SSD Act deal with payment of costs of an application for an ancillary order.
3. Section 98 of the Civil Procedure Act 2005 provides a general power to make a costs order subject to the rules of a court, if any. These are Class 3 proceedings to which r 3.7 of the Land and Environment Court Rules 2007 does not apply as this is not an appeal or other matter referred to in s 19(h) of the Land and Environment Court Act 1979 (LEC Act). Under s 19 of the LEC Act applications under Pt 10 of the SSD Act are identified in s 19(g6) as forming part of the Court's Class 3 jurisdiction. The costs discretion is therefore at large subject to being exercised judicially such as taking into account relevant matters.
4. This is the first ancillary order application under the SSD Act considered by the Court. One category of Class 3 matters where the costs discretion is also at large is compulsory acquisition cases under the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act). Recently in Croghan v Blacktown City Council [2019] NSWCA 248 the Court of Appeal considered costs in Class 3 matters in the context of how offers of compromise provisions in the Uniform Civil Procedure Rules 2005 apply in Just Terms Act matters. The Court of Appeal confirmed at [18] (Meagher JA, McCallum JA and Simpson AJA agreeing) that the general costs position as determined in Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328 (Dillon) is that generally a dispossessed owner should be awarded costs if their claim for compensation is brought and executed reasonably. Dillon identified at [60] that the costs discretion was unfettered.
5. Compensation offered for the sale of lots in a strata scheme must be just and equitable in all the circumstances, see s 182(1)(d) of the SSD Act. As the Applicant submitted, the process under the SSD Act is different to the Just Terms Act as compensation is determined for active dissenting owners at the same time as an order is made enabling the sale of property. Section 188 provides a dissenting owner with the benefit of a presumptive costs order.
6. I am applying the wide costs discretion in the context of the SSD Act in the particular circumstances before me of a lot owner not complying with the Court's orders. Ms Harris, through her failure to comply with court orders by which she is bound, is causing unnecessary expense to be incurred by all the complying lot holders in relation to the appointment of a trustee and this ancillary order application if no costs order is made. It is fair and equitable that she be responsible for these two categories of costs. Orders to that effect will be made.

Orders

1. The Court orders: 1. Mitchell Griffiths of Rapsey Griffiths Insolvency and Advisory is, from the date of these orders, appointed as trustee for the sale of lot 63 SP 61299 (the Property). 2. The Property is, from the date of these orders, vested in the trustee subject to any encumbrances affecting the entirety thereof to be held by the trustee upon trust for sale. 3. The trustee is to: 1. deliver, within seven days of these orders, to HSBC Bank Australia Limited confirmation of the vesting of the Property in the trustee and an executed discharge of mortgage for execution by HSBC Bank Australia Limited in respect of the mortgage registered on the title of the Property; 2. exercise the obligations as owner of the Property pursuant to the orders made by this Court in the proceedings on 8 August 2019 giving effect to the strata renewal plan for the collective sale of all lots in Strata Plan 61299 to City Hotel Enterprises Pty Ltd; and 3. receive the relevant portion of the strata plan administrative and sinking funds associated with the strata scheme for the Property within 14 days of termination of the strata scheme. 1. Within seven days of receipt of the discharge of mortgage referred to in (3)(a) above, HSBC Bank Australia Limited is to deliver to the trustee the certificate of title and executed discharge of mortgage in order to permit settlement of the sale of the Property to occur on 18 November 2019. 2. Aleta Sarawati Harris is to pay the Applicant's costs of this application, and the trustee is authorised to pay such costs on her behalf from the proceeds of sale of the Property. 3. The trustee, on completion of the sale in accordance with the strata renewal plan, shall distribute the proceeds of sale of the Property (and the relevant administrative and sinking fund proceeds) in the following manner: 1. in payment of the trustee's commission and costs for time in attendance up to completion of the sale; 2. in payment of the other costs of sale as contemplated by s 3.9.1 of the strata renewal plan, including conveyancing fees. This payment is to be made into the trust account of Dentons Australia Limited; 3. in payment of all rates, taxes and insurance and other outgoings on the Property as contemplated by s 3.9.1 of the strata renewal plan; 4. in payment of the Applicant's costs of this application for trustee appointment, as referred to in order (5). This payment is to be made into the trust account of Dentons Australia Limited; and 5. the payment of the balance to Aleta Sarawati Harris.

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: 31 October 2019