Gould v Purtle

The Notice of Motion 18The Defendant's solicitors filed the notice of motion on 3 March 2014. The relief claimed was as follows: "1. Order that the Plaintiff accept the transfer of title of the property at 7 Charlton Avenue South Lismore pursuant to order 1 of the family provision order dated 5 July 2013, and execute the Transfer of Title relating to the property at 7 Charlton Avenue, South Lismore as transferee. 2. In the alternative, order that the Registrar of the NSW Supreme Court execute Transfer of Title relating to the property at 7 Charlton Avenue, South Lismore as transferee on behalf of the Plaintiff. 3. In the alternative, declaration that the Plaintiff has disclaimed her gift of the property at 7 Charlton Avenue, South Lismore from the will of the late Maxwell Sanders as amended by the family provision order dated 5 July 2013. 4. Order that the Defendant has possession of the property at 7 Charlton Avenue, South Lismore. 5. Order that the Plaintiff vacate the property at 7 Charlton Avenue, South Lismore. 6. Costs 7. Such further or other order as the court sees fit." 19The Defendant relied upon an affidavit of her solicitor, Clayton Ross James, sworn 28 February 2014. It is from the contents of that affidavit that I have taken many of the facts stated above. 20The notice of motion was returnable before me in the Family Provision List on 7 March 2014. On that date, the matter was adjourned until 25 March 2014, on which adjourned date, it was adjourned again until today. 21(The matter was adjourned on 7 March 2014 because the Plaintiff's solicitors advised, by facsimile to the Supreme Court Registry, dated 7 March 2014, marked "Urgent", that they had not informed the Plaintiff that the matter was listed on that date and that she may have been unaware of the hearing. Although there was some evidence that the notice of motion had been served personally upon the Plaintiff, in view of the closeness of time to the date of filing the notice of motion, I considered it necessary to adjourn the motion.) 22At the hearing of the notice of motion today, the Defendant read an affidavit of service of David Charles Abey affirmed 3 April 2014, in which he deposed to having served the Plaintiff on 2 April 2014 with a copy of the notice of motion, a copy of the affidavit of Clayton Ross James of 5 March 2014 (to which was attached his earlier affidavit of 28 February 2014), and a covering letter dated 1 April 2014 from the Defendant's solicitors. 23A copy of the letter dated 1 April 2014 was not, in fact, annexed to Mr Abey's affidavit. However, counsel for the Defendant tendered a copy thereof (Ex. NM1). In addition to informing the Plaintiff of the date for hearing the notice of motion, the letter also stated: "This matter has been listed before His Honour, Mr Justice Hallen at 10.00am on 23 April 2014. If you are unrepresented or do not attend the court may make orders in your absence. A copy of [the] motion is enclosed together with an affidavit by myself C R James in support." 24Mr Abey deposed, also, that he served the documents personally upon the Plaintiff by handing them to her at the Property. At the time, she acknowledged that she was Georgia Anne Gould, the person referred to in the notice of motion. He informed her that the notice of motion was listed for hearing on 23 April 2014 and that it was important that she be represented at that time. He observed the Plaintiff place the documents in the garbage bin. 25The material placed before the court does not establish, or even indicate, any matter, other than the claim for a right of way and the disrepair of the front and back stairs, neither of which provides a reasonable basis, that might, otherwise, have been advanced by, or on behalf of, the Plaintiff against the application, or any sufficient reason for her refusing to execute the Transfer. 26When the matter commenced, the Plaintiff was called three times outside the Court. She did not appear herself or by counsel or solicitor. 27In the circumstances, I am satisfied that the Plaintiff has been duly served personally and that she has been made aware of the proceedings being listed today. She has chosen not to appear. 28Accordingly, the Plaintiff being absent when the trial of the notice of motion had been called on, I considered whether to proceed with the trial so far as concerned any claim for relief in the proceedings: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), rule 29.7. 29In relation to UCPR rule 29.7, I wrote, in NSW Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681, at [18] - [21]: "The clear purpose of UCPR rule 29.7 is the efficient dispatch of court business. However, in dispatching court business, I cannot ignore the right of a defendant to be informed, or, at least, to be made aware, of a trial date. It is a fundamental principle that a party who may be adversely affected by the making of court orders has a right to be heard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, in which Rich J said (at 589): 'It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside, and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside. ... In such a case there has been no valid trial at all.' In the circumstances, the first issue to address is whether I am satisfied that it is appropriate to proceed in the absence of the Defendant or of anyone representing her. A party is 'absent' within the meaning of the rule, when the trial is called on, only if it can be shown that he, or she, has knowledge, or notice, of the date of the trial, and is not physically present, or not represented. In other words, before the rule can be relied upon, there should be proof that the absent party has been given reasonable notice of, or has knowledge of, the date of the trial. Having read the evidence of service, some of which I have set out, I am now satisfied that all reasonable attempts have been taken to notify the Defendant of the Plaintiff's intention to obtain orders when the matter was listed before me today. Overall, I am satisfied that attempts have been made, fruitlessly, to get in contact with the Defendant, to provide her with the documents to be relied upon, and to allow her to participate in the proceedings. The Plaintiff has also established that all reasonable attempts to notify the Defendant of the date for the trial and that it was to then proceed have been made." 30I had earlier written, in Smirski v Macander [2010] NSWSC 929, at [34]: "It is to be remembered that the primary considerations on whether to proceed ex parte concern whether there is urgency; whether irreparable damage would flow from making an ex parte order; whether hardship would flow to a party against whom an order is made and whether such an order can be set aside: Ndjamba v Toyota Finance Australia Ltd [2010] NTSC 23, per Blokland J at [8]." 31There is no specific evidence by the Defendant of urgency, but bearing in mind the date the Final Orders were entered and the delay in the completion of the final administration of the estate, I am satisfied that I should deal with the matter despite the failure of the Plaintiff to appear. In this regard, it is clear that she remains in occupation of the Property and to delay the hearing of the notice of motion, when there is no explanation given for her non-appearance, would not be in the interests of justice. (I note, in passing, that the deceased died on 23 January 2012.) 32As stated, I am satisfied that the Plaintiff has knowledge of the date of the hearing of the notice of motion and that she is not physically present or represented. She has been provided with a copy of the documents to be relied upon and every effort has been made to allow her to participate in the proceedings. 33Furthermore, I note that no application for an adjournment of the notice of motion was made by, or on behalf of, the Plaintiff and, being satisfied that she was, or should have been, aware of the hearing date, and also that the notice of motion would be proceeding, and that orders could be made in her absence, there is no ground on which it would be appropriate for the court to adjourn the hearing of the notice of motion. Thus, there would be no point in the court, of its own motion, adjourning the matter, and I have proceeded to hear the notice of motion in the absence of the Plaintiff.

Whether the matter may proceed by notice of motion 34Because the Final Orders have been made, and there is no "liberty to apply" order included, a question whether the relief sought by the Defendant can proceed by notice of motion, rather than by new proceedings in which the Plaintiff would be named as the Defendant arises. 35I am satisfied that there are a number of bases on which the claims for relief sought in the notice of motion can proceed in this way. The first is by reliance on the inherent jurisdiction of the Supreme Court. In Newmont Yandal Operations Pty Ltd v J Aron Corporation and the Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411, Spigelman CJ (with whom Santow JA and Handley AJA concurred) wrote, concerning the inherent power of the court: "[20] As Morris LJ put it in Thynne v Thynne [1955] 3 WLR 465 at 489: In addition to powers resulting from rules of court, it is clear that there are necessary powers which are inherent in the jurisdiction of the court. It would, I think, be undesirable to limit the scope of these powers as a result of any words which describe them. I respectfully agree with what was indicated by Evershed LJ in Meier v Meier [1948] P 89 at 95 when he said: 'I prefer not to attempt a definition of the extent of the court's inherent jurisdiction to vary, modify or extend its own orders if, in its view, the purposes of justice require that it should do so'. ... The inherent jurisdiction [67] It is well established that the inherent jurisdiction is not at large, but it is not capable of being confined to defined categories. (See Tringali v Stewardson Stubbs & Collett Pty Ltd [1966] 1 NSWR 354 at 361; Reid v Howard (1995) 184 CLR 1 at 16). It is also well established that the jurisdiction may be exercised after orders have been perfected. [68] The inherent jurisdiction is closely related to s 23 of the Supreme Court Act 1970, which confers 'all jurisdiction which may be necessary for the administration of justice in New South Wales'. (See Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 617-618.) Both sources of jurisdiction may be exercised when necessary for the administration of justice: Reid v Howard (at 17). [69] As McLelland J said of the exercise of both the inherent power and s 23 in Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285 at 287: 'Since it rests on necessity for the purpose of preventing injustice, the extent of the power is commensurate with the requirements of the necessity which calls it into existence'". 36I accept, as did Rein J, in Raulfs v Fishy Bite Pty Ltd (No 3) [2013] NSWSC 1732, at [17], that: "the inherent power to vary judgments and orders is very limited and that it cannot be used to reopen a case to alter the substantive conclusions reached: see Gamser v the Nominal Defendant (1977) 136 CLR 145; Romeo v Paralie [2012] NSWCA 221 Sackville AJA with whom Basten J and Campbell JJA concurred and see Dimitrovski v Australian Executor Trustee Ltd [2013] NSWSC 337 at [13]." 37In this case, however, the orders that are being sought are ancillary and are sought to give effect to the orders previously made. They do not involve any reopening of the case or a variation to the substantive orders made by agreement of the parties. 38A second basis is s 56 of the Civil Procedure Act 2005 (NSW), which, relevantly, provides: "(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule." 39It would not facilitate the "just, quick and cheap resolution" of the proceedings to require the Defendant to commence fresh proceedings in which the Plaintiff is named as the Defendant in order to obtain the relief that the Defendant seeks in the notice of motion. 40A third basis is the principle referred to by McLelland J in Phillips v Walsh (1990) 20 NSWLR 206, at 209-210: "The question whether any particular application can properly be made in existing proceedings is a matter to be determined according to general law principles as modified by any relevant statutory provision. One such principle of the general law is that when proceedings have been disposed of by a final order which has been entered, the proceedings are at an end and cannot be revived: see generally Bailey v Marinoff (1971) 125 CLR 529; Gamser v Nominal Defendant (1977) 136 CLR 145; and FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268. There are a number of exceptions and qualifications to this principle but none that has any relevance to the present application, unless it be that subsequent to a final order application may be made for the purpose of dealing with a matter involved in, or arising in the course of, working out that order; for example, by making more specific provision for its implementation or by modifying its operation to take account of some subsequent change of circumstance or by enforcing it. ... In a final order, liberty to apply is often expressly reserved as authority to make a subsequent application for the purpose of dealing with a matter involved in or arising in the course of working out the order; but the absence of an express reservation of liberty to apply does not preclude such an application: see Penrice v Williams (1883) 23 Ch D 353; Light v West & Sons Ltd [1926] 2 KB 238; Chandless-Chandless v Nicholson [1942] 2 KB 321 and Re Porteous (at 385; 91)." 41It seems to me that, subsequent to the Final Orders, application is now being made for the purpose of dealing with a matter involved in, or arising in the course of, working out the Final Orders, by making more specific provision for their implementation. 42Finally, I refer to s 66 of the Act, which relevantly provides: "(1) The Court may, in addition to, or as part of, a family provision order, make orders for or with respect to all or any of the following matters for the purpose of giving effect to the family provision order: ... (a) the transfer of property of the estate directly to the eligible person in whose favour the order is made, or to any other person as trustee for that person, ... (i) the securing, either wholly or partially, of the due performance of an order under this Part, ... (k) the execution of any necessary conveyance, document or instrument, the production of documents of title or the doing of such other things as the Court thinks necessary in relation to the performance of the family provision order, (l) any other matter the Court thinks necessary." 43It seems to me that permitting the court to make orders "in addition to" the family provision order, and where the orders able to be made include the matters to which I have referred, such orders may be made after the family provision order has been made. The types of orders identified appear to be for the purpose of dealing with a matter involved in, or arising in the course of, working out the Final Orders, by making more specific provision for their implementation and for giving effect to the family provision order.

The Relief Claimed 44At the hearing of the notice of motion, the relief claimed ultimately involved two aspects. First, the manner in which the Defendant could satisfactorily complete the Final Orders and ensure, in so doing, that the Plaintiff does so as well. In this regard, the first order to be completed is (1)(a) set out above. This requires the Defendant to transfer the Property to the Plaintiff. 45The evidence reveals that the Property is currently registered in the name of the Defendant who has provided to the Plaintiff an executed transfer. She has available for lodgement, at the appropriate time, the Certificate of Title and a discharge of mortgage. However, until such time as the Transfer is duly executed and stamped, it cannot be registered. 46A question arises whether the responsibility for stamping the Transfer and lodging the discharge of mortgage falls upon the Defendant as the executrix of the estate. In my view, it does since Order 1(a) required her to transfer the Property to the Plaintiff free of any encumbrances in lieu of the provision made for the Plaintiff in the Will of the deceased. 47During submissions, Ms Catanzariti, counsel for the Defendant, informed me from the bar Table that the Stamp Duties Office would not permit the Transfer to be stamped without some evidence identifying the transferee named on the Transfer (e.g. a driver's licence). She was unable to inform me whether the Stamp Duties Office would be satisfied with production of the Final Orders and the payment of the fee necessary to enable the Transfer to be stamped. 48It is hoped that the Stamp Duties Office, if provided with a sealed copy of the Final Orders and a sealed copy of the orders to be made by me, which orders will include one requiring the Defendant to pay any stamp duty on the Transfer, together with the necessary fee, will be prepared to stamp the Transfer to enable Order 1(a) of the Final Orders to be complied with. 49Even if the Stamp Duties Office is prepared to stamp the Transfer, it will still be necessary for the Plaintiff to execute any Transfer, which, it would seem, she is not prepared to do. In those circumstances, it would be prudent not to require the Defendant to have the Transfer stamped until after it is signed by the Plaintiff, or, subject to what is said later in these reasons, signed by a person nominated by the court to do so. 50Clearly, as I have stated above, there is power given to the court under s 66(1)(k) of the Act to make an order requiring the Plaintiff to execute the Transfer. No such order, so far as I am aware, has been made. I am prepared to make an order to that effect. 51The Defendant, in relation to the second prayer for relief in the notice of motion, relies upon s 94 of the Civil Procedure Act, which relevantly provides: "(1) If any person does not comply with a judgment or order directing the person: (a) to execute any conveyance, contract or other document, or (b) to endorse any negotiable instrument, the court may order that the conveyance, contract or other document be executed, or the negotiable instrument endorsed, by such person as the court may nominate for that purpose. (2) A conveyance, contract, document or instrument that is executed or endorsed pursuant to an order under subsection (1) operates, and is for all purposes available, as if it had been executed or endorsed by the person originally directed to execute or endorse it." 52It seems, prima facie, that, in order to make an order nominating another person to execute the Transfer, the Plaintiff, first, must not comply with the order directing her to do so. As I have said, at the present time, no such order has been made. 53However, in Jeloudev v Lohman [2010] NSWSC 1229, Brereton J considered whether an order under s 94 of the Civil Procedure Act could be made in anticipation of non-compliance and concluded that such an order could be made, a conclusion with which I respectfully agree. His Honour wrote, at [11] - [13]: "The course of proceedings to this point - and in particular, the apparent absence of response from Mr Lohman, his apparent absence from his property and his apparent disregard of the present proceedings - suggests that there is a high degree of likelihood that he will not comply with an order directing him to execute the consent within a short period of time. In those circumstances, a question arises as to whether the court can make an order that the consent be executed by the Registrar pursuant to Civil Procedure Act, s 94, before Mr Lohman himself has been allowed an opportunity to do so. It is clear that the power under s 94 is conditioned on non-compliance with a judgment or order directing the party bound to execute the relevant instrument. However, in Savage v Norton [1908] 1 Ch 290, Parker J, while holding that, before making an order under a corresponding provision, the court ought as a rule be satisfied that the person originally ordered to execute an instrument had neglected or refused to do so, nonetheless allowed that there may be cases in which the court might make an anticipatory order, because it appeared that the person ordered to do so had in fact by his conduct already demonstrated that he refused to do the act ordered, in which case the court may make an order at once because of the probable futility of any proper request [see also Folley v Marafioti (No 2) (1972) 9 SASR 9]. As I indicated in Commonwealth Bank of Australia v Gaszewski [2006] NSWSC 772, an order appointing the registrar may be made prospectively, although there cannot yet be said to be non-compliance by the defendant with the order to execute, if the circumstances demonstrate the probable futility of any proper request, and the order is framed in such a manner as requires the relevant non-compliance to be established before the power is exercised. This view has been followed, by Hamilton J in Ciavarella v Polimeni [2008] NSWSC 541." 54As in that case, one party's attitude to the proceedings to this point demonstrate the probable futility of any proper request for the execution of the document. However, I shall allow the Plaintiff one last opportunity to comply with an order, but shall avoid the Defendant having to incur the costs of further representation at any hearing if the Plaintiff does not by making what I hope is an appropriate order for the Registrar in Equity or Deputy Registrar in Equity to sign if certain steps are taken and there is evidence that the Plaintiff has not complied. 55I have followed a form of order made by Hamilton J in Ciavarella v Polimeni [2008] NSWSC 541. 56Finally, I note that the Final Orders require the payment of $40,000 by the Plaintiff within 28 days of the Defendant transferring the Property to the Plaintiff. I have earlier referred to s 66(1)(i) of the Act which enables an additional order to be made securing, either wholly or partially, the due performance of an order under this Part. 57It seems to me that the way that this payment can be secured is by way an equitable charge over the Property in favour of the Defendant if it is not paid in accordance with Paragraph 1(b) of the Final Orders. 58The costs and expenses of, and incidental to, the further preparation of the Transfer should be borne by the Plaintiff. The costs and expenses of, and incidental to, its execution and lodgement, for stamping, together with the costs associated with transferring the Property free of any encumbrance, should be borne by the Defendant. 59There is no reason why the Plaintiff should not pay the Defendant's costs of the notice of motion. 60The orders I make are that: (a) At 11:00 a.m. on 21 May 2014, the Plaintiff, herself, and the Defendant, herself or by her solicitor, attend at the Registry of the Equity Division, Supreme Court, Sydney, before the Duty Registrar, and the Plaintiff there execute a Transfer, in registrable form, of the property situated at, and known as, 7 Charlton Avenue, South Lismore, being the whole of the land in Folio Identifier 8/249305, as transferee, with the Defendant as transferor, together with such other documents as may be necessary to enable the said Transfer to be registered. (b) It will be satisfactory compliance with order (a), if the Plaintiff returns to the Defendant's solicitor, a Transfer of the said property, duly executed by her, by 4:00 p.m. on 20 May 2014. (c) The Transfer and any other documents executed by the Plaintiff be retained by the Defendant, or by the Defendant's solicitor, for stamping and lodgement for registration with Land & Property Information. (d) The Defendant is to pay the costs of stamping and registering the Transfer of the said property to the Plaintiff free of encumbrance. (e) If the Plaintiff fails, refuses, or neglects, to comply with order (a), the Registrar in Equity, or Deputy Registrar in Equity, is nominated, pursuant to s 94 of the Civil Procedure Act, to then forthwith execute the Transfer and such other documents as may be necessary to enable the said Transfer to be registered, for and on behalf of the Plaintiff, and to provide the said Transfer and other documents to the Defendant, or to the Defendant's solicitor, for stamping and then registration with Land & Property Information. (f) The Registrar in Equity, or the Deputy Registrar in Equity, is authorised to execute the Transfer and such other documents as may be necessary to enable the said Transfer to be registered, for and on behalf of the Plaintiff, upon being satisfied that the failure, refusal or neglect of the Plaintiff has occurred. (g) Notice to the Plaintiff of these orders may be given by affixing a copy of the sealed orders to the outer door of the house at 7 Charlton Avenue, South Lismore, in the State of New South Wales and by providing a copy of these reasons sent by registered post to the Plaintiff at the address of the Property. (h) The Plaintiff is to pay the Defendant's costs of the notice of motion. (i) The Plaintiff's obligation to pay the Defendant $40,000 in order 1(b) of the court orders dated 5 July 2013 be secured by way of charge over the Property from the day following the day on which the payment is to be made until the date of payment. (j) The parties have leave to re-list these proceedings by arrangement with the Associate to Hallen J in relation to any further orders required for the implementation, or giving effect to, the family provision order.

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