Halfhide v Beaven

Halfhide v Beaven - [2023] NSWSC 966 - NSWSC 2023 case summary — Zoe

[3]

Relevant Principles

Section 63(1) of the Act provides that: "A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument."
NSWT&G submitted, and John Wardy agreed, that principles relating to applications under this provision were helpfully summarised in the recent decision of Meek J in Application of Macedonian Orthodox Community Church St Petka Inc [2023] NSWSC 918 (Application of Macedonian Church) at [48]-[50]. The principles there set out include that: 1. the jurisdictional power under section 63 is enlivened where there is a question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument; 2. the primary purpose of judicial advice is to enable trustees to ascertain in advance whether the particular conduct that they contemplate will be in accordance with their duties as trustees; 3. if trustees then act on the advice, they will have discharged their responsibility and, subject to the proviso in section 63(2), will not be liable for breach of trust; 4. a related purpose of a section 63 application concerns the right of a trustee to be indemnified from the trust fund for the trustee's costs of performing the trustee's duties; 5. the Court in the section 63 application is not bound to give judicial advice, merely because the trustee has a right to apply for it, and in dealing with such an application and in deciding whether to give advice or not, the Court must ultimately be guided by what it perceives to be in the best interests of the trust estate; 6. although the provisions of the Act do not mandate that the application be supported by an opinion, the practical reality is that the Court places considerable importance upon the availability of an opinion of counsel. In particular, the procedural objectives of speed and efficiency served by judicial advice proceedings are facilitated by and in many cases cannot be achieved unless the Court is presented with the assistance of an opinion by an independently minded lawyer who has, out of court, studied the problem to be solved, examined the factual context critically, analysed competing contentions and worked out a solution that lends itself to his or her professional judgment; 7. the facts stated to the Court by the trustee are ordinarily untested by adversarial procedure and are assumed by the Court to be true only for the purpose of the application. There is no finding by the Court that those facts are accurate. It has been said that no person bound by the advice is prevented from litigating as to the accuracy of those facts in other proceedings: Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247 at [69] per Palmer J; and 8. as a practical matter, some degree of rigour and care should be taken in providing to the Court a sufficiently satisfactory base of stated facts (whether by statement, evidence or other materials) which enables the Court properly to exercise its statutory jurisdiction with a degree of confidence.
I deal separately below with authorities bearing upon the exercise of the Court's discretion to decline to give advice in respect of a trustee's application under section 63.
So far as concerns the sale of an estate asset, NSWT&G relied on the following statement by Barrett J in Halfhide v Beaven [2003] NSWSC 1207 at [44]: "… the standard of care to be exercised by an administrator in effecting a sale for purposes of administration may be regarded as the equivalent of that expected of a trustee exercising a power of sale, although considerations relevant to the competing interests of classes of beneficiaries will not intrude in the case of a legal personal representative. The standard of care includes the exercise of diligence in inviting competition and in pursuing a course of conduct of the kind that an ordinary prudent person would apply in managing his or her own affairs. Formulations based on a supposed duty to 'obtain the best price' or 'not to sell at an undervalue' must, I think, be approached with care. Such absolutes tend to be illusory. The emphasis is on responsible, methodical and prudent behaviour undertaken according to an informed appreciation of the subject matter and the market environment in which it is to be sold. In In re Cooper & Allen's Contract for sale to Harlech (1876) 4 ChD 802, Jessel MR said: 'It is the duty of trustees for sale to sell the estate to the best advantage they can, that is the manner most beneficial to the cestuis que trust.' Harvey J added, in Permanent Trustee Co v Angus [1917] NSWStRp 37; (1917) 17 SR (NSW) 364: 'Regard must be paid to the method of sale adopted by ordinary prudent vendors of their own property in this country, who are anxious to dispose of their property to the best advantage.' I regard these criteria as equally applicable to a legal personal representative undertaking a sale of estate assets for purposes of administration."
John Wardy did not contend that those principles are inapplicable in respect of the proposed sale of the Coogee Property.

[4]

Sale process leading to CBC offer

The Coogee Property is an undeveloped mixed use holding of two shops, four residential flats and four garages. It was common ground that the property was most likely to attract a developer.
In earlier contested proceedings in respect of this estate, White JA made an order on 3 August 2020 that NSWT&G be restrained from selling, encumbering or otherwise dealing with the Coogee Property, until determination of an appeal which was then on foot or earlier order of the Court: Wardy v NSW Trustee and Guardian [2020] NSWCA 169. That appeal was determined on 4 June 2021: Wardy v NSW Trustee and Guardian [2021] NSWCA 121. Following this, in September 2021, instructions were given by NSWT&G to commence the process of sale of the Coogee Property.
I was taken in detail through the steps taken to sell the Coogee Property from September 2021 onwards, as set out in Ms Mendoza's affidavit and in the documents exhibited to it. By way of brief summary, these include: 1. obtaining in September 2021 an independent valuation of the Coogee Property, which valued the property at $9 million; 2. conducting from October 2021, in accordance with NSWT&G's standard procedures, a tendering process for the appointment of a real estate agent in respect of the sale of the Coogee Property; 3. after consideration of the responses to the tendering process, which were assessed in the light of various specified criteria, appointing in December 2021 Stephen Zoellner of Laing and Simmons Double Bay as real estate agent in respect of the proposed sale; 4. conducting from around mid March 2021 a marketing process, including public and private inspections, which led to three parties making pre-auction offers in amounts of $7 million, $7.18 million, and $7.5 million respectively; 5. obtaining in early April 2022 an updated independent valuation, which valued the Coogee Property at between $7.5 million and $9 million, and which concluded that offers in excess of $7 million should be "seriously considered"; 6. holding on 9 April 2022 an auction at which there were two active bidders. The Coogee Property passed in at auction, with the highest bidder offering $7.8 million with a 5% deposit and a 12 month settlement, and the underbidder offering $7.75 million with a 5% deposit and a 6 month settlement; and 7. in the weeks following the auction, the property being marketed as "offers invited", and interested parties being contacted several times to submit their best and final offer.
As at June 2022, after the Coogee Property had been on the market for some three months, the highest offer received was an offer for $8 million with a 5% deposit and a 12 month settlement. It is this offer which has led to the proposed contract with CBC. Other than the Wardy Offer, which is addressed below, no higher offer has emerged since then, despite the Coogee Property remaining on the market.
Ms Mendoza, who has over 15 years' experience in the property industry, has formed the view that the market has been thoroughly tested, and that the current market conditions have declined as a result of increasing interest rates and building costs.
Each of Hassiba's Sons provided, in June 2022, written confirmation in favour of the sale to CBC going ahead on the proposed terms. This remains their position.
While John Wardy contended that a different agent with different experience or skills might have been engaged in respect of the sale of the Coogee Property, the evidence discloses that, as noted in the Joint Opinion, NSWT&G undertook an extensive process, with objective selection criteria being applied, before the current agent was appointed. Further, there is no material before me to indicate that the agent chosen was not appropriately qualified, or did not take adequate steps to market the Coogee Property. Having regard to those matters, there is no basis in the material before me to conclude that the selection of one agent, rather than another, was unreasonable.
Likewise, while John Wardy has raised some concerns about the marketing and auction process, those matters have been addressed by NSWT&G in correspondence, and there is nothing before me to indicate that the position that NSWT&G has taken in response to each of those matters is not reasonably based. Further, as disclosed by the evidence on this application, the marketing process which was undertaken led to various indications of interest from a number of parties, as well as various offers being received in March to June 2022 within the range of the independent valuation of the property that was obtained in early April 2022.
So far as concerns the 12 month settlement period under the CBC offer, it was common ground that any purchaser of the Coogee Property is likely to be purchasing the property in order to redevelop it. In that context, as counsel for NSWT&G submitted, the proposed length of the settlement period is not surprising even if a shorter period would have been preferable. This is also borne out by the fact that most of the offers which have been made in respect of the Coogee Property have been on terms that there would be an extended settlement period, from around 6 to 18 months.
There was some suggestion by John Wardy in submissions that because the sale process was conducted in the first half of 2022, and time had moved on, the whole process should be recommenced with a fresh agent in a fresh campaign. However, as noted above, it is the opinion of Ms Mendoza, who has extensive experience in the property industry, that current market conditions have declined. Further, recommencing the process would involve the risk that the existing purchaser might fall away, as counsel for John Wardy acknowledged.

[5]

Wardy Offer

The Wardy Offer involves the payment of $4.1 million plus half of any GST payable on the contract price of $8.2 million. I was informed that under the contract with CBC which has been signed, but not exchanged, GST has been calculated on the basis that GST would be payable in respect of one of the shops comprising part of the Coogee Property, representing some 15% of the value of the Coogee Property. When calculated on this basis, the GST on the sale price of $8 million under the CBC offer is $120,000 (being 10% x 15% x $8 million). Using the same basis, and a contract price of $8.2 million under the Wardy Offer, the GST payable would be $123,000, with half of that amount ($61,500) being paid by John Wardy, and the remaining half being borne by the estate. On that basis, NSWT&G has reached the view that, although the contract price is higher under the Wardy Offer than the CBC offer, the offers are broadly comparable in amount.
However, unlike the CBC offer, the Wardy Offer is conditional upon John Wardy's agreement to a set of estate accounts. I was taken to correspondence showing that there has been, going back to 2017, a dispute about the estate accounting. It is not necessary for the purposes of this application to go into the detail of the history of that dispute, or the nature of the issues raised. I was informed that the question of estate accounts is currently before the Court in another proceeding before Slattery J, who made orders in June 2023 for an independent person to prepare a set of the estate accounts. As I have noted above, the Court was informed that those accounts have now been completed and were provided to John Wardy's solicitors yesterday.
Under the terms of the Wardy Offer, exchange will only occur 90 days following, and conditional upon, a full set of estate accounts being agreed, and settlement would then occur 90 days after exchange. Accordingly, assuming that John Wardy agrees to the estate accounts which have now been provided within the next three months, settlement will not occur for another 6 months after that occurs. This means it is doubtful whether there is likely to be any, or any significant, timing difference between the terms of the two offers, so far as settlement date is concerned.
However, whereas NSWT&G could proceed immediately to exchange contracts on the CBC offer, such that the period for settlement can begin to run, it is uncertain whether, and if so when, contracts would be exchanged on the Wardy Offer. That is because exchange is conditional upon John Wardy's agreement to the estate amounts, and the offer will lapse if such agreement is not reached within 90 days of their provision.
If NSWT&G were to proceed with the Wardy Offer, there plainly would be a risk that the relevant condition would not be satisfied such that no contract would be entered with John Wardy in respect of the Coogee Property. In such an eventuality, the current offer by CBC might well no longer be available, with the result that the entire sales process (which previously took some 9 months, from September 2021 to June 2022) would need to recommence at a point in time several months hence. This would likely lead to further significant delay in the administration of the estate.
Counsel for NSWT&G have noted in the Joint Opinion that, while it is possible that Mr Wardy's proposal could ultimately prove more advantageous than the CBC contract, there is a very real possibility that given the history of the administration of the estate, and in particular the protracted disputes about the estate accounts, Mr Wardy's proposal will prove to be less advantageous, and indeed may not proceed to settlement. For that reason, counsel for NSWT&G have expressed in the Joint Opinion the view that there is "a very considerable advantage of a certain and unconditional contract with a third party when weighed against a proposal with uncertainties and conditions". Following the provision of the reformulated Wardy Offer, counsel for NSWT&G confirmed it was their view that, having regard to the uncertainty attaching to that offer, NSWT&G would be justified in proceeding with an exchange of contracts with CBC as soon as possible.
While accepting that the timing of the Wardy Offer was "a little open ended", counsel for John Wardy submitted that, if there were any dispute about the estate accounts once they are prepared, and there needed to be litigation, this would not necessarily be a significant matter, since it would involve seeking a declaration that the accounts were accurate. However, although I have little information before me regarding the nature of disputes regarding matters of accounting, I have been informed that the estate accounts which were ordered to be prepared go back over some 14 years, and I have no reason to conclude that any litigation about such accounts would be of limited compass and resolved in a short space of time, leaving aside any issue of an appeal. If any dispute arises, there must therefore be a significant risk that the estate accounts will not be agreed to within 90 days of their having been provided, with the result that the Wardy Offer will then lapse.
Despite the price under the Wardy Offer (assuming it led to an exchange of contracts) being lower than the price under the CBC offer, Hassiba's Sons, who hold 50% of the interest in the residuary realty estate, are in favour of NSWT&G proceeding to accept the CBC offer. They stated at the hearing that they wanted the Coogee Property to be sold, and to be sold "forthwith", and they are concerned that, having regard to the history of this "long tortuous litigated matter", John Wardy "may never, ever agree to the accounts".
Having regard to those matters, I do not consider that NSWT&G would be acting unreasonably in forming the view that the CBC offer is superior to the Wardy Offer, and that it is in the interests of the estate for the former to be accepted and for the exchange of contracts to proceed forthwith.

[6]

Exchange of contracts in advance of finalisation of estate accounts

John Wardy submitted that until the estate accounts are completed and agreed, it is premature for NSWT&G to make a decision regarding the sale of the Coogee Property.
If the sale of the Coogee Property is approached through the prism of the Wardy Offer, it is plain that there is a connection between the finalisation of the estate accounts and the sale of the Coogee Property, since that offer cannot lead to a contract unless and until those accounts are agreed.
However, if the sale of the Coogee Property is approached through the prism of the CBC offer, it is difficult to see why the accounts must be agreed before contracts are exchanged. I was not informed of any reason why exchange of contracts in respect of that offer would prejudice or delay the process of the finalising the accounts, which needs to be completed whether or not the sale goes ahead. As counsel for NSWT&G submitted, it is in the interests of all persons concerned that the estate accounts be completed, and any dispute about them be resolved, but that task has no particular interrelation with the sale of the Coogee Property to CBC, such that those two matters could both proceed at the same time.
Similarly, it is difficult to see why it is premature to select between the CBC offer and the Wardy Offer, prior to the accounts being agreed. It is the case that, if the accounts are agreed, then the Wardy Offer would no longer be conditional in that respect, and might at that time be judged to be superior to the CBC offer by reason of price and settlement date. However, it is also the case, as noted above, that John Wardy may not agree to the accounts which have recently been completed, and NSWT&G might then find itself in the position where it does not have an offer from either CBC or John Wardy. Counsel for John Wardy accepted that there is a risk that John Wardy may not agree to the accounts, and that by that time CBC would not be willing to exchange, with the result that there would not be any buyer for the Coogee Property, and the sale process would need to start all over again. That was described as "part of the vicissitudes of not yet having exchanged". But that submission underlines why this application is now brought. It is in order to address those vicissitudes that NSWT&G proposes, at this time, to proceed with the CBC offer. On the material before me, that is not an unreasonable view for a trustee in the position of NSWT&G. That is particularly so, given that, as counsel for John Wardy observed, the Sydney property market is a "dynamic beast".
When being notified yesterday evening of the provision of a set of the estate accounts to John Wardy's solicitors, the Court was also informed that counsel for NSWT&G and John Wardy agree that under the will, the Coogee Property forms part of the general property residue but there is an express power to transfer it to John Wardy and Hassiba's Sons as tenants in common in equal 50% shares. In the Joint Opinion, counsel for NSWT&G noted that, as well as putting forward the Wardy Offer, John Wardy had variously taken the position in correspondence that the Coogee Property should not be sold at all, or that it should be transferred in specie to the residuary realty beneficiaries, being John Wardy as to 50% and Hassiba's Sons as to 50%. In respect of the latter proposal, counsel for NSWT&G expressed the view that where the Coogee Property is part of the residual estate, and the estate has liabilities that it currently cannot meet, NSWT&G could not be said to be acting unreasonably in pursuing a sale of the property. It is also relevant, as noted above, that Hassiba's Sons do not want the Coogee Property to be transferred to them, and instead want it to be sold forthwith.
John Wardy referred to matters in the history of the administration of the estate which, he contended, had led to NSWT&G being in the position where it has liabilities that it cannot meet. I do not need to determine whether or not those criticisms of NSWT&G are justified, and the determination of this application will not preclude any such issue being agitated by John Wardy or any other beneficiary. Instead, the issue on this application is whether, given the current position of the estate, NSWT&G is justified in proceeding with a sale of a substantial asset to a ready and willing buyer, having taken steps over an extended period to test the market for that asset.
John Wardy further submitted that, if any real property should be sold to provide funding for administration expenses of the estate, it ought to be one of the other two other properties owned by the estate. However, whatever the position with the other properties in the estate (about which I had very limited information), the fact remains that NSWT&G has a current offer to purchase the Coogee Property, together with the competing Wardy Offer; has formed the view that it is in the interests of the estate to accept the CBC offer; and has a concern that if the CBC offer is lost, a sale at the same level will not be able to be achieved. I do not consider that, in those circumstances, it is premature for NSWT&G to seek advice as to whether it is justified on proceeding with the sale of the Coogee Property to CBC at this point in time.
Finally, it is difficult to see how it could be described as premature for NSWT&G to be now seeking advice on whether to enter into a contract with CBC for the sale of the Coogee Property, given the fact that the process of selling the Coogee Property commenced almost two years ago, and the CBC offer was made more than 14 months ago.
I note that an issue has been raised in recent correspondence between NSWT&G and John Wardy as to whether GST is in fact payable on any portion of the sale proceeds of the Coogee Property. However, John Wardy did not contend that it is premature to exchange contracts on the Coogee Property before this particular issue is resolved, and NSWT&G has indicated that it may seek further advice on this issue. Accordingly, I do not address it further.

[7]

Discretion

John Wardy put forward material regarding the history of the administration of the estate, with his counsel explaining that this was "because we are focused on the discretionary aspects of this". John Wardy submitted that this is not an appropriate case for judicial advice, relying on the following statement by Brereton J in Application of Willoughby City Council (as manager of the Talus Reserve Trust) & anor [2016] NSWSC 1717 at [85]: "Historically, courts have declined to give judicial advice on matters of basic controversy, or where the rights of beneficiaries will be affected, as distinct from matters of management and administration…"
This statement must be read in light of the remarks which his Honour made immediately thereafter (at [87]): "Courts have become somewhat less reluctant to give advice in some circumstances where previously they might have declined as a matter of discretion to do so, following the judgment of the High Court in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand, which emphasised that the only jurisdictional prerequisite for the exercise of jurisdiction under s 63 is that the applicant must point to the existence of a question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument, and that no other limitation confines a court's discretion to exercise its power to give judicial advice, other than the subject-matter, scope and purpose of the legislation. Nonetheless, while judicial reluctance to give advice in some situations has been mitigated by Macedonian Church, that does not mean that the court should or may never, as a matter of discretion, decline to give advice (footnote references removed)."
In Macedonian Church, the plurality emphasised that there is nothing in the relevant provisions of the Act, or in the authorities, which "warrants limiting the powers given to the Court by s 63 by reference to a classification of some proceedings as 'adversarial proceedings', and others as not" (at [112]; see also at [56], [116]). Their Honours observed that there are no express words in s 63, and no implications from the express words in that section, making some discretionary factors always more significant or controlling than others: "Hence the discretion is confined only by the subject matter, scope and purpose of the legislation" (at [59]). Accordingly, the discretion of the Court to consider applications brought under s 63 "should not be yoked to a general first principle that, where there is a contest or where there are adversaries, it is not appropriate to give advice" (at [60]).
John Wardy also relied on the observations of Lindsay J in Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844 at [196]-[198] (emphasis added): "Not unnaturally, the High Court's observations have been taken as an encouragement to trustees to make a s 63 application whenever confronted by an element of doubt about steps to be taken in the due administration of a trust; as an encouragement to courts of first instance to exercise s 63 jurisdiction liberally; and as an encouragement to them not to withhold judicial advice by adoption of a restricted view of the operation of s 63. … However, if the jurisdiction of the Court to aid the due administration of trusts is to be exercised fairly, efficiently and beneficially, care needs to be taken to ensure that an application to the Court is not made unnecessarily, prematurely or without due engagement of persons who may have an interest in the outcome of a s 63 application."
The present application by NSWT&G could not be said to have been made "without due engagement of persons who may have an interest in the outcome". The correspondence reveals that, throughout the sale process in respect of the Coogee Property, there has been engagement at each step of the way with John Wardy and with Hassiba's Sons, being the only persons with an interest in that sale. In Application of Willoughby City Council at [89], Brereton J, having set out the remarks of Lindsay J quoted above, identified two policy concerns underlying those observations, the first being that s 63 reflects a compromise between affording private advice to trustees and the need for affected persons to be given a hearing; and the second being that the Court's ability to provide well measured advice may be affected because it is not afforded the arguments of competing interests. In the present case, each of the affected persons, being the residuary realty beneficiaries, has been heard, and the Court has heard the arguments of competing interests and, in particular, the arguments of John Wardy, who is the only residuary realty beneficiary who opposes the sale to CBC, and the proponent of the only current competing offer.
It is also difficult to see that it could be said that the current application has been made "prematurely", in circumstances where there was, at the time the application was made in April 2023, a controversy over whether to accept an offer for the Coogee Property which had been made some ten months earlier, and which was the subject of extensive correspondence in that period. I have otherwise addressed above the submission that NSWT&G is acting prematurely.
John Wardy has submitted that the current application has been made "unnecessarily", given that he has offered to purchase a one half share of the Coogee Property at a higher amount than the CBC offer. However, that submission is, in effect, predicated on a view that the choice between the Wardy Offer and the CBC offer should be resolved in a particular way; and advice is being sought from the Court precisely because John Wardy, who holds a 50% interest in the residuary realty estate, has a different view to the holders of the other 50% interest and to NSWT&G regarding this choice. As I have explained, NSWT&G has formed a view that, by reason of the conditions attaching to the Wardy Offer, the CBC offer is superior and should be accepted forthwith. The necessity for the current application arises from the fact that John Wardy disputes NSWT&G's decision to prefer the CBC offer and to proceed to exchange contracts on that basis and at this time.
Further, this is not a matter where there is a substantial factual controversy which needs to be resolved in order for the application to be determined. There was no factual dispute as to what steps have been taken by NSWT&G in respect of the sale process; or as to what issues have been raised by John Wardy, and what responses have been given by NSWT&G, in the course of correspondence regarding the sale process; or as to what offers have been made by CBC and John Wardy in respect of the property; or as to what views are held by NSWT&G or the residuary realty beneficiaries in respect of those offers. It is against the background of those matters that the issue arises on this application whether the NSWT&G would be justified in now proceeding to exchange contracts on the terms of the CBC offer.
In Application of Willoughby City Council at [90], Brereton J observed, with reference to the comments of Pembroke J in Alexander v Perpetual Trustee Company Ltd [2015] NSWSC 1815 at [4], that "the question whether any particular case is an appropriate vehicle for judicial advice is ultimately a matter for the exercise of the Court's discretion, and depends very much on the particular circumstances". Further, as Meek J observed in the recent Application of Macedonian Church decision at [48], the Court, in determining whether to give the advice or not, must ultimately "be guided by what it perceives to be in the best interests of the trust estate".
As already outlined above, the relevant circumstances in this case include that: in the estate of a person who died some 14 years ago, NSWT&G commenced a sale process for the realisation of a major asset nearly two years ago, with the property remaining on the market since then; an issue has arisen whether or not NSWT&G should accept an offer which was made some 14 months ago, and which NSWT&G regards as the best offer made to date; and the residuary realty beneficiaries are split 50/50 in respect of that issue, with one camp seeking that the CBC offer should be accepted forthwith, and the other seeking that NSWT&G either accept the conditional Wardy Offer or recommence the sale process. In the light of those circumstances, I do not consider it in the best interests of the estate for the Court to decline to give the advice sought by NSWT&G, which would carry with it both the risk of further delay in the administration of the estate and the risk of the loss of the existing CBC offer, particularly given the uncertainty whether any sale of the Coogee Property would or could be achieved at the level of the CBC offer, or when it would be achieved, if that offer were to fall away. One point on which there appeared to be common ground is that it is in the interests of everyone concerned that the administration of the estate be finalised, given its long drawn-out and contentious history.

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