Haley v Perkins

Basis of Application for appointment of Trustee for Sale 6The evidence reveals that: (a) The Plaintiff sent a copy of the reasons for Judgment and orders, together with a letter drawing attention to the orders made, to the Defendant on 5 October 2010; the letter and documents were sent by express post. The letter also stated that the Plaintiff would provide a transfer, in registrable form, transferring all of her right, title and interest, in the Property to him, upon condition that he simultaneously, paid to her the amount of $50,000; and that she was "in a position to provide such transfer now". A request was made for a written response, within 14 days, that the Defendant was ready, willing and able to pay the amount of $50,000. The letter included the suggestion that "a settlement at a mutually convenient location and time to enable the transfer to be handed to you in exchange for a bank cheque of $50,000" would be arranged, failing which the matter could be re-listed for appointment of a trustee for sale of the Property. (b) The Defendant did not advise the Plaintiff, by her solicitors, in writing, within 14 days of the letter to him, that he was ready, willing and able, to pay to her, the amount of $50,000; however, he did, on 13 October 2010, telephone the Plaintiff's solicitor and advise that he was attempting to obtain finance to enable the payment to be made to the Plaintiff. (c) On 4 November 2010, a further telephone conversation between the Plaintiff's solicitor and the Defendant occurred. The Defendant stated that his application to the Bank had been unsuccessful, but that there were two other options for finance being investigated by him. The Defendant stated that he would telephone the Plaintiff's solicitor and advise of the result of the further applications. The Defendant did not do so. (d) On 19 November 2010, the Plaintiff's solicitor wrote another letter to the Defendant informing him that the proceedings would be re-listed for the appointment of a trustee for sale. (e) In February 2011, the Defendant offered to transfer part of the land to the Plaintiff in lieu of the payment of the sum of $50,000. This offer was rejected by the Plaintiff, in writing, in a letter dated 6 May 2011 from her solicitors to the Defendant. The letter also stated that a further two weeks would be allowed before the Plaintiff approached the court to have the matter re-listed. (f) On 3 June 2011, the Plaintiff's solicitor sent a letter, by express post, to the Defendant, advising that the matter had been listed before the Court at 9:30 a.m. on 17 June 2011. A copy of the affidavit of the proposed trustee and his consent was included with the letter. No response from the Defendant, to this letter, was received. Nor has the Defendant contacted the Plaintiff's solicitor by telephone or otherwise. (g) The Plaintiff has not delivered the transfer, in registrable form to the Defendant, because the payment by him to her of the amount of $50,000 has not been proffered. (h) Henry Kazar, a chartered accountant and partner in a firm of accountants in the Australian Capital Territory has consented to act as the trustee for sale. He is a registered company liquidator, and registered trustee in bankruptcy with experience in the disposal of real estate for the benefit of creditors and other stakeholders. He states that he is "accustomed to the responsibilities associated with realising assets, including real estate, from obtaining valuations and market proposals, determining the appropriate method of sale, appointing agents, negotiating sales, negotiating with secured creditors and instructing solicitors, and accounting for the sale proceeds". Mr Kazar confirms that he is "not aware of any conflict of interest or duty that would make it improper for him to act as a trustee". 7I have been informed from the bar table, by the solicitor for the Plaintiff, that the Plaintiff's costs of the proceedings are in the process of being assessed and that a certificate of assessment from the court should issue shortly. The costs of the Plaintiff have been to be about $25,000. 8There is no evidence from the Defendant.

Determination 9In the circumstances, over 8 months having passed since my orders were made, and there being evidence that the Defendant is aware of the orders, it appears that, now, there is no choice but to appoint a trustee for sale. The Plaintiff appears to have complied with her obligations set out in the orders that I made. The Defendant has not. He has failed, or omitted, to pay, or tender, to the Plaintiff the sum of $50,000. 10There is power to grant the relief now sought by the Plaintiff given to the court by s 38 of the Property (Relationships) Act 1984. That section sets out the types of orders that may be made, including, as now called in aid, the appointment of trustees (sub-s (1)(g)), the transfer of property (sub-s (1)(a)), the production of documents of title (sub-s (1)(c)) and the sale of property with distribution of the proceeds of sale in default of the order for payment of money not being satisfied (sub-s. 1(b)). Sub-section (j1) permits the court to make an order in the absence of a party. (The power in that section to appoint trustees extends to appointing an individual trustee ( Interpretation Act 1987, s 8): Dyson v Holden [2010] NSWSC 1494 at [22].) Section 38(2) provides, also, that the court may make any order, or grant any remedy or relief which it is empowered to make or grant under any other Act. As pointed out also in Dyson v Holden , there is power under s 70(1) and (2) of the Trustee Act 1925 for the court to appoint a new trustee, even where there is no existing trustee, whenever it is expedient to do so, and it would be inexpedient and impractical to do so without the assistance of the court. 11For the reasons I have given, and in the light of the evidence that I have read, I consider that this application ought not to have been necessary. I order that the Defendant is to pay the Plaintiff's costs of this application. 12I make the following orders: (a) Order pursuant to s 38(1)(g) of the Property Relationships Act 1984 and s 70(1) and (2) of the Trustee Act 1925 that Henry Kazar be appointed as Trustee for the sale of the Property comprised in Certificate of Title Folio Identifier ### together with all improvements erected thereon and being the property known as "Bimbimbie" ("the Property"). (b) Order that the Property be vested in the Trustee subject to any encumbrances affecting the entirety thereof to be held by the Trustee upon trust for sale. (c) Order that the trustee have power to take, or obtain, possession of the Property in order to give vacant possession to a purchaser. (d) Order that the Defendant deliver to the Trustee all the documents of title within his possession for the Property within fourteen (14) days from the date of service of these Orders upon him. (e) Grant leave, under s 66I of the Conveyancing Act 1919, for the Defendant to bid for, or buy, the Property setting off, or accounting, for the purchase money instead of paying the same so far as appropriate and taking into account the payments required to be made. (f) Order that the Trustee, on completion of the sale, shall distribute the proceeds of sale of the Property in the following manner: (i) In payment and discharge of all mortgages and other encumbrances registered on the title to the Property; (ii) In payment of the Trustee's commission and costs for time in attendance up to completion of the sale; (iii) In payment of the other costs of sale including, but not limited to, legal costs, advertising costs and agent's commission; (iv) In payment of expenses, if any, incurred by the Trustee for the purpose of bringing the Property up to a condition which would facilitate sale; (v) In payment of all rates, taxes and insurance and other outgoings on the Property; (vi) In payment of $50,000, together with interest accrued thereon, calculated at the rates prescribed by s 101 of the Civil Procedure Act 2005 on unpaid judgments from 27 October 2010 to the date of payment to the Plaintiff; (vii) In payment of the Plaintiff's costs of the proceedings and of this application; and, if those costs have not been agreed upon, or assessed, then the Trustee should retain no less than the Plaintiff's solicitor's reasonable estimate of those costs, calculated on the ordinary basis until such time as the costs have been agreed upon or assessed; (viii) The payment of the balance to the Defendant, in the event that he is not the purchaser. (g) Order that the Trustee shall be at liberty to execute any and all necessary conveyance, or other documents, and to do all such things as are necessary to enable the compliance with, and the performance of, these Orders. (h) Grant the parties, and the Trustee, liberty to restore on seven (7) days notice, to obtain such further, or other relief, to enable effect to be given to these Orders or the discharge thereof. (i) These orders shall be entered forthwith with the inclusion of the Folio Identifier reference, which has been omitted from these reasons for judgment. 13Because the Defendant did not appear at the hearing when the matter was re-listed, and because I retain the hope that it will not be necessary for the Property to be sold by a trustee, rather than by the parties, or not at all, I shall stay the orders (with the exception of (i) above), for 28 days, upon the basis that the Plaintiff's solicitor should serve the Defendant with a copy of this Judgment and the orders, by letter sent to the Defendant by registered post no later than 7 days from today.

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: 04 July 2011