Hillman v Box and Others as executors of the will of Box

Supreme Court of the ACT|2011-02-18|Before: Refshauge J

(a) Before the defendants enter into any contract of sale for the property at 146 Gilmore Street, Queanbeyan, NSW (the Queanbeyan property) they give to the plaintiff, by service on her solicitor, seven clear days notice of their intention to enter into such a contract together with a copy of the proposed contract showing the name and address of the proposed purchaser and the proposed price and all other agreed terms;

(b) in the event that the plaintiff makes no application to the court within those seven days, or the court gives the defendants leave to do so, the defendants be at liberty to enter into the proposed contract.

(c) where the defendants have entered into the proposed contract, the plaintiff shall submit to the defendants, through their solicitors, not later than seven days prior to the date of completion notified by the defendants, withdrawal of caveat dealing number AF 798275X in registrable form;

(d) should the plaintiff fail or refuse to sign and return to the defendants prior to the date of completion the duly signed withdrawal of caveat then, acting under s 4(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), I appoint under s 94 of the Civil Procedure Act 2005 (NSW) the Registrar of the ACT Supreme Court to execute such a withdrawal of caveat as is submitted by the defendants, upon her being satisfied of such failure or refusal;

(e) on completion of the sale, the defendants shall deduct from the gross proceeds of the sale:

payment of all moneys necessary to discharge any encumbrances on the property at 10 Horan Place, Spence, ACT;
all proper agent's commission and disbursements payable in respect of the sale;
all proper costs and disbursements payable to any solicitor acting for the defendants on the sale; and
the payment of any moneys necessary to enable an adjustment of rates or other proper outgoings to be made to the date of settlement;

(f) the balance of the gross proceeds of the sale, after the deductions referred to in 4(e) have been made, shall be paid to the defendants' solicitors' trust account to be held on an interest bearing deposit pending further order.

Order 5 made on 8 December 2010 be varied by omitting "4(f)" and substituting "4(e)".
Liberty be reserved to the parties and each of them to apply on two days notice.
The plaintiff pay the defendants' costs of, and incidental to, the hearings on 8 December 2010 and on 31 January 2011 and of the submissions made on 7 February 2011 and the orders thereon (except that these costs only include one half of the costs of the defendants' submissions of 7 February 2011), such costs not to be assessed or payable until judgment or other order.

Under r 782 of the Court Procedures Rules 2006 (ACT) (the Rules), the land, being all the land at Block 44 Section 19 Division of Spence contained in Volume 1410 Folio 59 and known as 10 Horan Place Spence ACT (the Spence property), be sold subject to order by private treaty.
The defendants have the conduct of the sale and, subject to this order, bear the costs of the sale.
The plaintiff and defendants immediately confer on the minimum price for which the Spence property is to be sold, and if the parties cannot agree within seven days from the date of this order, the defendants have leave to apply to the Court for a direction about that matter under r 782 (3) of the Rules. Such an application is to be supported by affidavit made by a licensed real estate agent, or appropriate expert, and include an opinion as to the appropriate or recommended minimum price, and the reasons for that opinion.
1. The plaintiff and the defendants confer within 14 days on the terms of the contract for the sale of the Spence property and, if they cannot agree on the terms of such a contract within a reasonable time thereafter, the defendants have leave to apply to the court for an order approving the contract for sale of the Spence property.
2. The Registrar of the ACT Supreme Court be appointed under s 79 of the Trustee Act 1925 (ACT) to convey the Spence property and she is authorised and directed to sign the contract agreed or approved under order 4 above, the Memorandum of Transfer for registration of the sale, and any other documents reasonably required by the defendants for the purposes of the sale.
3. The defendants file a copy of this order with the Registrar-General with a view to it being noted on the title of the Spence property.
4. Where a prospective purchaser seeks to have any term in the contract, as agreed or approved under order 4 above, varied or to add any term, then, if the variation or added term is agreed by both the defendants and the plaintiff, or failing agreement, is approved by the court on application by either party, the contract, amended to include such variations or additions, shall be deemed to be the contract as agreed, or approved, under order 4 above.
5. On completion of the sale, the defendants shall deduct from the gross proceeds of the sale:
  1. Payment of all moneys necessary to discharge any encumbrances on the Spence property;
  2. All proper agent's commission and disbursements payable in respect of the sale;
  3. All proper costs and disbursements payable to any solicitor acting for the defendants on the sale; and
  4. The payment of any money necessary to enable an adjustment of rates or alter proper outgoings to be made to the date of settlement.
6. The balance of the gross proceeds of the sale after the deductions, referred to in order 8 above, have been made, shall be paid to the defendants' solicitors' trust account to be held on an interest bearing deposit pending further order.
7. In the event that contracts for the sale of the Spence property have not been exchanged within three months of the date of this order, the parties have liberty to apply to the court to seek orders to authorise a sale by public auction.
8. Liberty be reserved to the parties and each of them to apply on two days notice.
9. The costs of this order be included in, and in accordance with, the costs of the amendment order also made today.

1. On 31 January 2011, I delivered reasons for proposing certain orders to permit the sale of certain properties said to be part of the Estate of the deceased Graeme William Box, but claimed by the plaintiff, or in which she claimed to have an interest or other entitlement. See Hillman v Box and Ors as Executors of the Will of Box (No 2) ACTSC 10 (at [79]), where the proposed orders are set out.

I then gave the parties leave to file written submissions on those orders and on the costs of the proceedings which have led to the orders I make today. I proposed then to make the orders in chambers unless there was need to relist the matter for further submissions.
Both parties made brief submissions dated 7 February 2011. Having read them, I do not need to list the matter for further submissions, and will now make the relevant orders in chambers.
It does seem to me appropriate, however, to publish brief reasons for making the orders I make.

5. Neither plaintiff nor defendants submitted that I should vary the proposed orders except in one way. The only variation proposed was for the deletion of a proposed provision that a copy of the order relevant to the sale of what was called the Spence property should be attached to the contract of sale for that property, which should also include in it a statement that it was made under the order.

6. Although the draft minutes originally submitted by the defendants had proposed such a provision, their subsequent submissions now proposed its deletion. They described the rationale as that they "are unable to see any legal or formal requirement [for it]" and that "there may be the incorrect perception of a 'fire sale' on the part of prospective purchasers."

7. The plaintiff agrees to the deletion of that provision.

8. I accept that there is no legal requirement for it, and will not include it in the formal orders made. The order will, however, still be required to be filed with the Registrar-General, and this should meet all legal requirements sufficiently.

9. Accordingly, with that variation, I will make the orders as I otherwise proposed with a minor clarification to the amended 4 (d).

10. The defendants submitted that they should have their costs since the orders to be made closely reflected the short minutes filed by them save for the reliance on s 79 of the Trustee Act 1925 (ACT).

11. It is true that I made some minor amendments to the other orders in accordance with proposals made by the plaintiff, who cannot be said to have "failed entirely," but it is fair to say that on the main issues, none of the substantive proposals of the plaintiff were accepted.

12. The plaintiff, on the other hand, submitted that the costs should be costs in the cause. This seems to be submitted on the basis that the court, recognising that the parties would not accept alternatives discussed by me (see Hillman v Box & Ors as Executors of the Estate of Box (No 2) (at [7] to [23]), had to draft its own proposals.

13. I do not accept that characterisation. It seems to me that I had to include that in order to explain why there was a difference between the approach of the two parties to be resolved in the variation that had to be made to my original orders (see Hillman v Box and Ors as Executors of the Estate of Box [2010] ACTSC 153). It is also true that neither party provided the answer to an important question of how I could, within jurisdiction, order that the Registrar of the Supreme Court execute the contract and transfer, and I had to decide that for myself.

14. Basically, however, I rejected completely the plaintiff's proposals in relation to the Spence property and broadly adopted the defendants' proposals. The amendments in relation to the order about the property at Queanbeyan, NSW, that I made as submitted by the plaintiff, were not insignificant but were quite minor and, primarily, drafting matters.

15. In those circumstances, it seems to me that the defendants should have their costs. There is one modification to that. Since the variation of the order proposed about the Spence property was made necessary because of its inclusion originally at the suggestion of the defendants, they should not have their costs of proposing its deletion.

16. Further, I do not see any reason, and no submissions were made about this, why the common order in interlocutory applications, that the costs not be assessed or paid until judgment, should not be made. I have already ordered that the defendants have access to $50,000 from the estate to pay legal fees and so they should not be under any financial pressure as a result, but I will permit that order to be varied if necessary for cause.

17. Accordingly, I make two separate orders as follows:

(a) Before the defendants enter into any contract of sale for the property at 146 Gilmore Street, Queanbeyan, NSW (the Queanbeyan property) they give to the plaintiff, by service on her solicitor, seven clear days notice of their intention to enter into such a contract together with a copy of the proposed contract showing the name and address of the proposed purchaser and the proposed price and all other agreed terms;

(e) on completion of the sale, the defendants shall deduct from the gross proceeds of the sale:

payment of all moneys necessary to discharge any encumbrances on the property at 10 Horan Place, Spence, ACT;
all proper agent's commission and disbursements payable in respect of the sale;
all proper costs and disbursements payable to any solicitor acting for the defendants on the sale; and
the payment of any moneys necessary to enable an adjustment of rates or other proper outgoings to be made to the date of settlement;

3. Order 5 made on 8 December 2010 be varied by omitting "4(f)" and substituting "4(e)".

Liberty be reserved to the parties and each of them to apply on two days notice.
The plaintiff pay the defendants' costs of, and incidental to, the hearings on 8 December 2010 and on 31 January 2011 and of the submissions made on 7 February 2011 and the orders thereon (except that these costs only include one half of the costs of the defendants' submissions of 7 February 2011), such costs not to be assessed or payable until judgment or other order.

Under r 782 of the Court Procedures Rules 2006 (ACT) (the Rules), the land, being all the land at Block 44 Section 19 Division of Spence contained in Volume 1410 Folio 59 and known as 10 Horan Place Spence ACT (the Spence property), be sold subject to order by private treaty.
The defendants have the conduct of the sale and, subject to this order, bear the costs of the sale.
The plaintiff and defendants immediately confer on the minimum price for which the Spence property is to be sold, and if the parties cannot agree within seven days from the date of this order, the defendants have leave to apply to the Court for a direction about that matter under r 782 (3) of the Rules. Such an application is to be supported by affidavit made by a licensed real estate agent, or appropriate expert, and include an opinion as to the appropriate or recommended minimum price, and the reasons for that opinion.
The plaintiff and the defendants confer within 14 days on the terms of the contract for the sale of the Spence property and, if they cannot agree on the terms of such a contract within a reasonable time thereafter, the defendants have leave to apply to the court for an order approving the contract for sale of the Spence property.
The Registrar of the ACT Supreme Court be appointed under s 79 of the Trustee Act 1925 (ACT) to convey the Spence property and she is authorised and directed to sign the contract agreed or approved under order 4 above, the Memorandum of Transfer for registration of the sale, and any other documents reasonably required by the defendants for the purposes of the sale.
The defendants file a copy of this order with the Registrar-General with a view to it being noted on the title of the Spence property.
Where a prospective purchaser seeks to have any term in the contract, as agreed or approved under order 4 above, varied or to add any term, then, if the variation or added term is agreed by both the defendants and the plaintiff, or failing agreement, is approved by the court on application by either party, the contract amended to include such variations or additions shall be deemed to be the contract as agreed, or approved, under order 4 above.
On completion of the sale, the defendants shall deduct from the gross proceeds of the sale:
1. Payment of all moneys necessary to discharge any encumbrances on the Spence property;
2. All proper agent's commission and disbursements payable in respect of the sale;
3. All proper costs and disbursements payable to any solicitor acting for the defendants on the sale; and
4. The payment of any money necessary to enable an adjustment of rates or alter proper outgoings to be made to the date of settlement.
The balance of the gross proceeds of the sale, after the deductions referred to in order 8 above have been made, shall be paid to the defendants' solicitors' trust account to be held on an interest bearing deposit pending further order.
In the event that contracts for the sale of the Spence property have not been exchanged within three months of the date of this order, the parties have liberty to apply to the court to seek orders to authorise a sale by public auction.
Liberty be reserved to the parties and each of them to apply on two days notice.
The costs of this order be included in, and in accordance with, the costs of the amendment order also made today.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Courts (Cross-Vesting) Act 1987

Procedures Rules 2006

Courts (Cross-Vesting) Act 1987

Procedures Rules 2006

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