DJ Singh v DH Singh and Others

Relevant principles

1. The principles to be applied when exercising the Court's power to grant a stay pending an appeal are well known: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695, and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (Kalifair) (2002) 55 NSWLR 737; [2002] NSWCA 383 at [17]-[20].
2. The successful party is prima facie entitled to the benefit of a judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal, and that there is a significant risk that if money is paid it will be unable to be recovered if the appeal succeeds; or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Limited v Antoniadis (No 2) (1999) 48 NSWLR 381 at 385 [15].
3. It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [2]. That invites consideration of two matters. First, whether the appeal raises a serious question to be tried, in the sense of arguable grounds, and if so, where the balance of convenience lies: Kalifair at [18]; Vaughan v Dawson [2008] NSWCA 169 at [17] (Campbell JA).

Whether arguable grounds of appeal

1. In written submissions, the parties took opposite positions as to whether the appeal is an arguable one. The applicant contended that the appeal is reasonably arguable. The executors contended that the appeal does not raise any arguable grounds or serious question to be tried.
2. Consistently with the approach taken by this Court in February 2017 when dealing with the review application (see [12] above), I proceed upon the basis that as the applicant has an appeal as of right it should be assumed that his appeal is bona fide and arguable, unless the contrary is shown. In oral argument, counsel for the executors adopted a less dogmatic position and, in effect, accepted the observation made by this Court on the review application that "[t]here is simply too much potentially relevant material for the Court to form a view, favourable or otherwise, on the merits of the appeal at this stage": [2017] NSWCA 15 at [3]. Accordingly, the presumption of arguability has not been displaced.

Balance of convenience

1. The questions to be considered on the present application concern the balance of convenience or the balance of hardship.
2. The applicant submitted that the properties the subject of the deceased's estate must be preserved and maintained in their present form, otherwise the relief sought in the amended notice of appeal, if successful, would be rendered nugatory. The applicant's submission continued: "Each and every asset having been subject to joint tenancies in ownership must be preserved and maintained such that they are retrievable and recoverable and the property dealings are effectively and practically reversible".
3. Insofar as these submissions are directed to the Broadbeach and Lismore properties, the applicant has not made out a case for a stay.
4. First, the sale of the Broadbeach property has already been completed.
5. Second, the sale of the Lismore properties is expected to be completed on or about 18 September 2017 and the estate would potentially be exposed to a claim for damages for breach of contract if it was prevented from completing that sale. Although during the course of the hearing the applicant offered an undertaking as to damages as a condition of any stay, I do not consider that the applicant, who is self-represented, fully understood the implications of giving such an undertaking, particularly in circumstances where the executors did not seek a cross-undertaking as to damages as a condition of the undertaking proffered by the executors to the Court.
6. Third, in addition to the undertakings already given to the applicant (see [17] and [19] above), the executors have proffered an undertaking to the Court (see [22(6)] above and [23] above), the effect of which is that the executors will not make any further distributions from the estate pending the determination of the appeals.
7. The applicant submitted that the undertaking proffered by the executors was deficient because it permitted the executors to pay the legal costs of the proceedings below and also the legal costs of the appeal, and any Capital Gains Tax liability incurred on the disposal of the Broadbeach and Lismore properties.
8. The first objection concerning payment of legal costs of the proceedings below was met by the executors agreeing to amend the undertaking to exclude the payment of such legal costs: see [23] above. Otherwise the applicant was mistaken in suggesting that the undertaking permitted the payment of the executors' legal costs of the appeals prior to the determination of the appeals.
9. The second objection relating to the payment of any Capital Gains Tax liability arising from the sale of those properties is not a sufficient reason for the Court not to accept the undertaking. No arguable basis was shown by the applicant for why any CGT liability should not be paid by the estate, as and when assessed and irrespective of the outcome of the appeal.
10. The applicant submitted that the "strong" inference is that the dealings, disposals or sale of any asset of the estate is a "tactic to defeat the practical effect of a successful appeal". I do not agree. The executors have adequately explained the reason for the interim distribution of $60,000 to Ms Dhillon mid-2016. Nor did the applicant point to any evidence from which an adverse inference should be drawn against the executors from their conduct in selling the Broadbeach and Lismore properties, in circumstances where those properties fall into the residue of the estate under both the 2006 will and the 2004 will.
11. Insofar as the stay sought by the applicant is directed to maintaining the status quo with respect to other properties of the estate, I consider that the applicant's position is sufficiently protected by the undertakings already given to the applicant (see [17] and [19] above), as supplemented by the undertaking proffered to the Court by the executors.
12. In my view, the applicant has not made out a case for a stay.

Restraining other sales and dealings, transfers or distributions

1. Insofar as the applicant seeks an interlocutory order restraining the executors from making any sales, dealings, transfers or distributions of the assets and income of the estate, the applicant did not advance any additional argument beyond that relied upon in support of his application for a stay of the grant of probate.
2. The questions to be considered on an application for an interlocutory injunction are whether there is a prima facie case of right; whether damages would be an adequate remedy for any breach; and the question of balance of convenience apart from the adequacy of damages. While it is usual to deal with each question separately, it is accepted that the assessment of each bears upon the assessment of the others: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [71]-[72] (Gummow and Hayne JJ).
3. Notwithstanding that the presumption of arguability in relation to the appeal has not been displaced, the applicant failed to demonstrate what right would be infringed if the executors completed the sale of the Lismore properties. Insofar as the applicant contended that the sale of the Lismore properties, if completed, would give rise to an unnecessary CGT liability, the argument was difficult to follow since on any view those properties would need to be realised by the executors, or some other legal personal representative of the estate in due course, for distribution to the persons entitled thereto, either under the 2006 will, or if the appeal was successful, under the 2004 will, or upon intestacy, being the alternate relief sought by the applicant on appeal.
4. Even if it be assumed that the sale of the Lismore properties involved a breach of the rights of the applicant (cf [27] above), damages would be an adequate remedy for any breach. As to the question of balance of convenience apart from the adequacy of damages, no good reason has been demonstrated by the applicant for restraining completion of the sale of the Lismore properties.
5. In light of the undertakings already given to the applicant (see [17] and [19] above) and the further undertaking proffered to the Court on behalf of the executors, the balance of convenience does not support the injunctive relief sought by the applicant.

Information disclosure orders

1. Insofar as the applicant seeks a full accounting, and particulars, in relation to the administration of the estate (Probate and Administration Act 1898 (NSW), s 85(1A) and s 85(2)), that relief cannot be granted in the appeal proceedings. Proceedings for an order relating to the accounts of a deceased person's estate are to be commenced by notice of motion in the "parent proceedings" which means, relevantly, the proceedings in which probate or administration has been granted in respect of the estate: Supreme Court Rules 1970, Pt 78, rr 75 and 89.
2. A decision to make an order under the Probate and Administration Act, s 85, like a decision to order an account in equity, is a discretionary one, and an order will not be made if the Court considers that it would be futile or premature: Hons v Hons [2010] NSWSC 247 at [101].
3. Any application by the applicant for an accounting by the executors should be made in the probate proceedings. In saying that, I should not be taken as indicating any view as to whether or not accounts should be ordered if such an application is made, let alone to be taken as encouraging such an application.
4. Insofar as the applicant seeks information disclosure orders directed to the assets and liabilities position of the executors personally, no basis has been shown for granting such relief.

Provision of security by executors

1. The applicant also sought an order in the following terms: Darran Harsewan Singh and Paul William Campbell provide sufficient assets to the estate of the late Douglas John Singh as collateral for securities and guarantees and sureties to sufficiently cover all losses and the costs of restoring and recovering all losses to the value of the assets and all income (including past, present and future) pertaining to the said assets… within 28 days.
2. The applicant submitted that, by an analogy to Kalifair (at [28]-[32]), the executors should provide security so that, should the applicant's appeal be successful, the estate will not be diminished by the executors contesting the proceedings. The supposed analogy with Kalifair is inapt. As mentioned, the executors have not paid any of their own legal costs, fees and disbursements of the proceedings below or the two appeals. Insofar as the applicant asserted that the estate may suffer losses from the sale of the Broadbeach and Lismore properties, no such loss was identified.

Challenge to Registrar's decision - 4 September 2017

1. On 4 September 2017, the Registrar of the Court made the following order in relation to the applicant's motion filed 29 August 2017: (1) Decline to refer the motion.
2. The background to this order is referred to at [2] above. Although the transcript of the proceeding before the Registrar on 4 September 2017 is not before the Court, two observations can be made.
3. First, the motion filed 29 August 2017 was not served at least three days before the date fixed for the motion, and the applicant did not obtain any order abiding the time for service of the motion: Uniform Civil Procedure Rules 2005 (NSW), r 18.4, which rule applies to proceedings in this Court (see UCPR, r 51.1(3)).
4. Second, plainly, the Registrar formed the view that the executors should be afforded an adjournment to prepare affidavit evidence in response to the motion, and that the motion was not otherwise urgent in circumstances where the executors had given an undertaking to the applicant not to make any further distributions in relation to the estate pending the resolution of the two appeals.
5. The nature of a review of a decision of a registrar of the court under s 121(3) of the Supreme Court Act 1970 (NSW) and UCPR, r 49.19, was considered by this Court in Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [7]-[8] (Hodgson JA, Ipp JA agreeing) and [52] (Basten JA). In Wiley Re LED (South Coast) Pty Ltd (2009) 76 NSWLR 428; [2009] NSWSC 946 at [26], Barrett J remarked that the judgments in Tomko v Palasty (No 2) make clear that review, in the relevant sense, involves discretionary intervention. His Honour said: The starting point for the Court is therefore the decision that is to be reviewed. The Court does not merely cast that decision to one side and proceed as if it was never made. While it is for the Court to make the relevant decision afresh, it will have regard to the basis on which the decision was made and the material placed before the Court itself on the application for review.
6. No further material was relied upon by the applicant on the review application.
7. I am not persuaded that it is in the interests of justice to set aside or vary order 1 made by the Registrar on 4 September 2017. That decision involved a matter of practice or procedure. The applicant has not demonstrated an error of law, or an error of the kind identified in House v The King (1936) 55 CLR 499, or a material change of circumstances, or that there is evidence that satisfies the strict requirements for fresh evidence. No purpose would be served in setting aside order 1 in circumstances where the Court is now dealing with the applicant's amended notice of motion dated 10 September 2017.
8. Further and importantly, the Registrar's decision on its face is not unreasonable. That is a sufficient reason for the Court to refuse to intervene.

Other matters

1. Insofar as the applicant sought an order for the provision of the transcript of the "judgment" and the "proceedings" before the Registrar on 4 September 2017, I am not minded to make any such order. The applicant should pursue any request for a transcript of the directions hearing on that day in the ordinary way.
2. Insofar as the applicant sought orders that the proceeds of sale of the Broadbeach and Lismore properties be paid into separate identifiable controlled moneys accounts, that order is unnecessary. The executors have already established two bank accounts in the name of the estate.
3. Insofar as the applicant sought leave to amend his notice of appeal (if required) to make further submissions (if required), including supplementary submissions, consolidated submissions, and to amend or supplement the appeal books (if required), the applicant has not provided a draft of any amended notice of appeal, or identified the subject matter of any supplementary submissions, or the content of any proposed additional material in the appeal books.
4. Leave to amend the notice of appeal, or to rely upon supplementary submissions, or to add to the appeal books should not be given in advance of the applicant formulating any such amendments and making application in the usual way on notice to the other parties, who are entitled to be given an adequate opportunity to consider their position.

Costs

1. The applicant sought costs of the motion against the executors on an indemnity basis, or alternatively, a party/party basis. The executors sought an order for costs of the motion against the applicant. In oral argument, the applicant advanced an alternative submission that costs of the motion should be costs in the appeal.
2. Section 98 of the Civil Procedure Act 2005 (NSW) provides that, subject to the rules of court, costs are in the discretion of the Court, including by whom, to whom and to what extent costs are to be paid. UCPR r 42.1 provides that if the Court makes any order as to costs, it should be in terms that costs follow the event unless the circumstances justify some other order. As the authorities make clear, the "event" may be characterised in more than one way: Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425 at [24]-[26], [54]-[60] (cited with approval in Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15].
3. Here, the applicant substantially failed in obtaining the relief sought in the amended notice of motion. Insofar as the executors have now given an undertaking to the Court in response to the motion, in addition to the inter-parties undertakings already given by the executors, the undertaking to the Court clarifies that the executors have agreed not to pay any legal costs of the proceedings below or of the appeals pending the determination of the appeals. The outcome of the motion is not significantly different to the position reached in the correspondence which preceded the applicant's motion.
4. Insofar as the executors have now provided additional information to the applicant concerning the interim distribution and the moneys held by the estate, it is relevant that they offered to provide information in relation to specific matters upon request in correspondence prior to service of the motion. I do not regard the information that has now been provided by the executors as a concession in the face of the motion.
5. In all the circumstances the appropriate order for costs is that the applicant pay 85 percent of the executors' costs of the motion.

Conclusion and orders

1. The application for a stay should be refused. In light of the undertakings given by the executors to the applicant and now also to the Court, no basis has been demonstrated for restraining any dealings by the executors, or making disclosure orders against the executors, or for requiring the provision of security by the executors. Nor has any basis been shown for setting aside order 1 made by the Registrar on 4 September 2017. That order should be confirmed.
2. Accordingly, I make the following orders: 1. The Court notes the undertaking given to the Court by the first and second respondents, by their counsel, that they will not, by themselves either jointly or individually, or by their servants or agents, make any distribution to any beneficiary from the estate of the late Douglas John Singh ("the deceased"), or cause to be charged or mortgaged any of the assets of the estate of the deceased (whether held beneficially or otherwise), provided that this undertaking shall not prevent the executor respondents from paying expenses incurred in the ordinary course of the administration of the estate of the deceased, including taxation, but not including the costs of the appeal proceedings or the proceedings below, until 29 days after judgment is given in both appeal proceedings 2015/319432 and 2017/156218. 2. Confirm order 1 made by the Registrar on 4 September 2017. 3. Dismiss the applicant's amended notice of motion dated 10 September 2017. 4. Order that the applicant pay 85 percent of the first and second respondents' costs of the motion, including the amended motion dated 10 September 2017.

Amendments 18 September 2017 - Added "Catchwords" 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: 18 September 2017