EQUITY - Trusts and trustees - Court-appointed trustee - Trust powers - Orders facilitating trustee being able to sell properties as per previous orders made by the Court in these proceedings
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EQUITY - Trusts and trustees - Court-appointed trustee - Trust powers - Orders facilitating trustee being able to sell properties as per previous orders made by the Court in these proceedings
Judgment (3 paragraphs)
[1]
Solicitors:
First Choice Family Lawyers (plaintiff)
Excused (first defendant)
Self-represented (second defendant)
Whittens & McKeough (third defendant)
Sharah & Associates (fourth defendant)
Gordon Albert Salier AM (applicant)
File Number(s): 2015/374480
[2]
Judgment
These reasons for judgment deal with two outstanding matters in the administration of the estate of the late Nicholas Kalantzis.
The first issue concerns a claim for relief made by Mr Gordon Albert Salier AM by notice of motion filed by leave in court on 1 July 2019. Mr Salier has been ordered by the Court to be appointed as the administrator of the deceased's estate (although the grant has not yet issued), and has been appointed a trustee for the sale of the properties owned by the deceased in New South Wales.
The Court has already published three judgments in this matter: see Katramados v Hasapis [2018] NSWSC 948; Katramados v Hasapis (No 2) [2018] NSWSC 1604; and Katramados v Hasapis (No 3) [2019] NSWSC 435.
The background facts relevant to Mr Salier's notice of motion will be found in the earlier judgments. I will describe the parties using the same names as I have used in those judgments.
Mr Salier's notice of motion primarily concerns the property described in the earlier judgments as the Campsie property. That property was, at the time of the deceased's death, owned by Julia, his widow, and the deceased as tenants in common in equal shares. Consequently, in practical terms, Julia has a right to have the property sold so that she can realise her half-interest in the property. The estate of the deceased is only entitled to the other half.
Pending the completion of formalities for the grant of letters of administration of the deceased's estate to Mr Salier, he was appointed as sole trustee for the sale of the Campsie property under s 66G of the Conveyancing Act 1919 (NSW).
The difficulty that has arisen concerns the fact that Adriana has been living at the Campsie property for many years without paying any rent, and for some time her aged and infirm mother has been living with her. There is no alternative course but for Adriana and her mother to vacate the Campsie property, so that Mr Salier can gain vacant possession for the purpose of facilitating the sale of the property in accordance with the orders made by the Court.
In support of his notice of motion, Mr Salier has sworn an affidavit dated 20 May 2019. Mr Salier deposes to the fact that he has forwarded letters or emails to Adriana on 15 January 2019, 5 February 2019, 20 March 2019 and 12 April 2019. Mr Salier introduced himself to Adriana, and sought her advice as to whether she wished to implement an arrangement whereby the Court would permit her to bid for the Campsie property at auction on favourable terms, and if not, what arrangements were proposed for her to give vacant possession of the property to Mr Salier. Adriana did not reply to any of the communications.
Consequently, Mr Salier filed his notice of motion.
Adriana appeared at the hearing of the notice of motion. She delivered written submissions to my associate before the hearing of the notice of motion commenced. I have read Adriana's submissions. In essence, they deny the jurisdiction of this Court to make the orders that have been made concerning the disposition of the deceased's properties in New South Wales. The submissions contain many allegations concerning the effect of the law of Greece and the law of this State, and the conduct of various parties, which in substance consist of an attempt to go behind the judgments that have already been delivered by this Court.
Adriana's oral and written submissions in response to Mr Salier's application make plain that she challenges the material findings that the Court has already made in these proceedings, and that she resists being required to give vacant possession of the Campsie property to Mr Salier to enable him to perform his duty in accordance with the orders already made by the Court. I am satisfied that the Court cannot rely upon Adriana to comply in a proper and efficient manner with any order made by the Court concerning the delivery of vacant possession of the Campsie property to Mr Salier.
Rule 6.3(f) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) requires that proceedings for possession of land be commenced by statement of claim. Rule 14.15 of the UCPR requires that certain matters be pleaded. Section 14 of the Civil Procedure Act 2005 (NSW) permits the Court to dispense with any requirement of the rules of court, if satisfied that it is appropriate to do so in the circumstances of the case.
Given that Mr Salier's need for possession of the Campsie property arises out of orders made in these contested proceedings, Mr Salier seeks an order of the Court dispensing with the need for him to proceed by way of statement of claim in order to obtain a writ for possession of the Campsie property. I am satisfied that it is appropriate for the Court to dispense with the requirement for a statement of claim in these circumstances. The dispensation will have the additional beneficial effect of not requiring Mr Salier to incur additional, unnecessary legal expenses.
A further problem that arises concerns the fact that Adriana's mother has resided at the Campsie property for a number of years, so that Adriana can care for her.
The written submissions provided to the Court on behalf of Mr Salier note that UCPR rule 6.8 requires that, if a person, described as the occupier, is in occupation of the whole or any part of the land the subject of proceedings for possession of the land, and is not joined as a defendant, the plaintiff must, relevantly, serve the originating process on the occupier together with a notice in certain terms.
The submissions provided on behalf of Mr Salier contain persuasive reasons as to why Adriana's mother might not strictly be classified as an occupier for the purpose of rule 6.8. Among other things, noting that Julia has always been one of the registered proprietors of the Campsie property, there is no suggestion that Adriana's mother has been given any enforceable right of occupation by the registered proprietors of the property.
However, because of the highly contentious nature of these proceedings, and the doubts that I have about whether Adriana has been providing accurate information to her mother concerning the course of these proceedings, and the consequences of the orders that have inevitably been made, I propose to direct Mr Salier to provide a form of notice to Adriana's mother, as if she were in fact an occupier, on the terms and in the manner that I will set out in the orders that I make below. Plainly, it would be proper for Adriana to fully inform her mother about the need for Adriana and her mother to move out of the Campsie property. I am also conscious that there is material before the Court which founds concerns about the mother's mental capacity. The most that can be done, however, is for Mr Salier to attempt to give her notice of his intention to apply for the issue of a writ of possession, and then it will be for Adriana and her mother to take any steps that may be legally available to them. That is not a question that requires the consideration of this Court at the present time.
The second issue that must be addressed is the manner in which the Court may achieve the necessary outcome of being able to make final orders to complete these proceedings.
The essential problem has been considered in some depth in the previously published judgments. In essence, the Court was originally told, by means of the evidence tendered by Julia, that the deceased's Greek estate that was divisible under Greek law between certain of the parties to these proceedings had a particular value, but that the mechanism for realising that value was such that this Court could not be certain as to what value would ultimately be realised, and as to how long it would take to sell the relevant Greek properties.
Before the Court has been able to make final orders, the Court was first told that, provided that the relevant parties to these proceedings agreed and cooperated, they could appoint an agent in Greece to sell all of the relevant properties by private arrangements. However, the Court was also told that, by reason of economic conditions in Greece, the possibility that all of the relevant properties could be sold was problematic, and the prices obtainable could not be estimated with confidence.
Furthermore, the Court was also told that estate taxes on the properties would be imposed by Greek law, and that the parties to these proceedings who had an interest in the Greek properties would be accumulating tax liabilities of a substantial nature. The Court has been told that the Greek properties cannot be sold and the proceeds divided between any of the parties to these proceedings without the total accumulated Greek taxes being paid. There is no sound evidence as to the amount of the Greek taxes, although it appears that they will continue to accumulate indefinitely until they are paid. It is therefore possible that the Greek properties are not, in practical terms, realisable, and their values may have been entirely stultified by the taxes that have accumulated.
In order to attempt to progress these proceedings towards final orders, I requested, at [118(11)] of my third judgment, that the parties provide certain information to the Court in response to specified questions.
All of the relevant parties responded to my request, save for Adriana, who provided a limited response on 1 July 2019.
The first question enquired whether each interested party would join with the other parties in authorising the sale of the Greek estate of the deceased that is divisible between parties to these proceedings.
Julia and Billy have advised the Court that they would join in attempting to sell the relevant Greek properties. Mary informed the Court that she would prefer to come to an agreement with Julia and her siblings to divide the Greek properties so that she could retain her share in specie. Mary also said that she understood that, because of economic circumstances in Greece, the properties were in practical terms not realisable. Mary advised, however, that, if necessary, she would join with the other parties in attempting to sell the properties. Adriana has still not given a response.
The Court was informed by counsel for Julia at the hearing on 1 July 2019, without contradiction by the other parties present, that none of the parties had voluntarily taken any steps either to agree to a division of the Greek properties, or to authorise any agent to sell those properties on the market.
The response of the parties to the second question posed by the Court is also relevant to this issue. The question was whether any of the parties, to their knowledge, owe any taxes payable to any Greek tax authority in respect of any of the deceased's Greek estate in which that party has an interest. Julia's position is that she has paid all of the taxes that she owes, and is not aware of any outstanding taxes. Both Mary and Billy responded that they are not aware of the tax position in Greece, or whether they have any liability for taxes. Mary added that, if she has any such liability, she will take responsibility for paying the taxes. Adriana has not responded.
It is now clear to the Court that all of the parties to these proceedings who claim an interest in the Greek estate of the deceased ought to have made enquiries about their liability for taxes and provided appropriate evidence to the Court on that subject.
The consequence has been that the first judgment in these proceedings was given on false assumptions as to the value and saleability of the relevant Greek properties of the deceased, and the possible liabilities of parties with interests in those properties to pay taxes to the Greek tax authorities.
As it is beyond the jurisdiction of this Court to deal with the Greek properties of the deceased; as the parties have not taken any steps to realise the value of those properties, notwithstanding the encouragement given by this Court; and for the reasons given at [21] above; I have concluded that the Court should, in determining what orders should finally be made on the family provision applications, take into account all of the evidence that is now before the Court concerning the realisable value of the Greek properties, and the imposition of estate taxes on parties with interests in those properties, which is likely to require the Court to discount their apparent values. Neither Adriana nor Billy has materially responded to the evidence that has been put before the Court, since the primary judgment was published, to sufficiently clarify or explain the position concerning the realisable value of the Greek properties or their liability for estate taxes.
The third question asked of the parties was whether they proposed to apply for orders for the assessment of any of the legal costs and disbursements that will be payable out of the estate of the deceased, as a consequence of the costs orders set out at [118] of the Court's third judgment in these proceedings. That question was asked because the cumulative costs claimed by the parties is substantial, and will have a significant practical effect on the family provision orders that the Court could make in favour of Adriana and Billy as a result of these proceedings.
Julia, Mary and Billy have advised the Court that they do not propose to take steps to require the costs payable out of the estate for the other parties' legal costs and disbursements to be assessed. In her written submissions dated 1 July 2019, Adriana only stated that she would require the costs of the Greek lawyers incurred by Julia to be assessed in some manner. Adriana will apparently not require Julia's, or the other parties', legal costs of these proceedings to be assessed.
The effect of the position taken by the parties is that, at the end of the day, the costs and disbursements payable out of the deceased's estate will be what those parties have claimed, save, perhaps, for the result of Adriana's challenge to Julia's Greek lawyers' costs. It is yet to be seen whether Adriana will in fact challenge the Greek lawyers' costs, or, if she does, the basis upon which she will do so.
The final question that the Court asked the parties was whether they wish the Court to decide what orders should finally be made on the family provision applications by Adriana and Billy on the basis of whatever information is now before the Court concerning the realisable value of the assets in the deceased's estate, or whether they would prefer the Court to defer finally determining the claims until there is also one or both of evidence of (1) the actual realised net value of the deceased's estate in this State following the sale of the relevant properties; and (2) the total amount paid out of the estate to satisfy costs orders in favour of the parties.
The position taken by Mary and Billy is that the Court should formulate the final orders solely on the basis of the evidence now before the Court. Julia's position is that she would prefer the Court to defer the consideration of the precise final orders until the Campsie property and the Dulwich Hill property have been sold, so that the sale price of each property is known, as well as all of the actual costs of sale, and until the total costs of the parties have been paid. Adriana has not indicated a preference.
I have decided that I should not, at this stage, make final family provision orders. Given the level of uncertainty that remains, the only form that family provision orders that were made now could take is that some specified percentage of what may be left after all relevant assets have been realised and all costs crystallised and paid should be given to Adriana and Billy by way of further provision. Family provision orders made in those terms would be uncertain as to their ultimate effect.
I consider that there remains substantial doubt about the outcome of Mr Salier's implementation of his duty to sell the two properties, particularly in relation to the prices that may be obtained and the costs that may be incurred in realising the properties.
I propose to make orders that require that the Court be provided, at an appropriate time, with evidence of the legal costs and disbursements that are finally incurred by all parties, as well as the net proceeds of sale of the two properties. Allowance will also have to be made in an appropriate way for Mr Salier's remuneration and expenses, and any other matters that should properly be taken into account.
When that is done, the Court will have a more firm basis for judging the effect of any family provision orders that may then be able to be made.
I would encourage the parties, in the meantime, to address the need to try to realise the deceased's Greek estate for the highest value that is obtainable. However, that is a matter for the parties themselves.
In these circumstances, I make the following orders:
1. Note that no party has requested Gordon Albert Salier AM to take any step to administer the assets of the late Nicholas Kalantzis situated in Greece, and accordingly he does not intend to do so.
2. Order pursuant to s 71 of the Trustee Act 1925 (NSW) that the property being the whole of the land contained in folio identifier F/369428 situated and known as 75 Duke Street, Campsie in the State of New South Wales (Campsie Property) vest in Gordon Albert Salier AM.
3. Order that the requirement to file a statement of claim in respect of the application for possession of the Campsie Property be dispensed with.
4. Order that the Second Defendant, Adriana Hasapis (known for the purposes of these proceedings as Adriana Kalantzis) give Gordon Albert Salier AM possession of the Campsie Property.
5. Leave to Gordon Albert Salier AM to issue a writ of possession of the Campsie Property.
6. Order that the leave given by order 5 be suspended, subject to further order of the Court, until the time allowed by order 7 for an application to be made for the setting aside of orders 2, 4 and 5 has elapsed without such application having been made.
7. Order Gordon Albert Salier AM to serve on the mother of Adriana Kalantzis, who is said to be living at the Campsie Property, within seven days, a letter, addressed to her by her name, and in the manner permitted by rule 6.8(2) of the Uniform Civil Procedure Rules 2005 (NSW), which informs the mother that the Court has made orders 2 to 7, and advises her that, if she does not apply to the Court within 10 days, by notice of motion served on the other parties to these proceedings, for an order that she be added as a defendant to these proceedings, and for an order setting aside orders 2, 4 and 5, then Gordon Albert Salier AM will be entitled to exercise the leave granted to him to issue a writ of possession of the Campsie Property, by reason of which she may be evicted.
8. Direct Gordon Albert Salier AM to serve on the parties to these proceedings, and deliver to the associate to Robb J, within 21 days of the sale of the last of the Campsie Property and the property being the whole of the land contained in certificate of title volume 13259 folio 59 situated at and known as 436 New Canterbury Road, Dulwich Hill in the State of New South Wales to be sold in accordance with orders made by this Court, an affidavit which provides particulars of the net proceeds of sale of both properties and Mr Salier's claim for remuneration and expenses, and any other costs and expenses that are anticipated in the administration of the estate of the late Nicholas Kalantzis, as may be considered sufficient to enable the Court to make final family provision and costs orders in these proceedings.
9. Direct each party to these proceedings in whose favour the Court stated, in par 118 of its judgment delivered on 18 April 2019 (Katramados v Hasapis (No 3) [2019] NSWSC 435), that an order for costs will be made out of the estate of the late Nicholas Kalantzis, to serve on the parties to these proceedings, and deliver to the associate to Robb J, within 14 days of receiving the affidavit of Mr Salier referred to in order 8, an affidavit stating the estimated final costs and disbursements of that party to be the subject of the costs order, with reasonable particulars of the amounts claimed.
10. Direct any party who wishes to do so to serve on the parties to these proceedings, and to deliver to the associate to Robb J, within 28 days of receiving the affidavit of Mr Salier referred to in order 8, brief written submissions concerning the orders that the Court should make for the final determination of these proceedings, for the purpose of enabling the Court to determine what orders should be made in chambers, if that appears appropriate to the Court
11. Note that, following receipt of the affidavits referred to in orders 8 and 9, and the submissions referred to in order 10, the associate to Robb J will, if it appears necessary and appropriate to Robb J to do so, list these proceedings for further directions for the purpose of determining what, if any, case management orders remain to be made for the purpose of enabling the Court to make final orders in these proceedings.
[3]
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Decision last updated: 05 July 2019