The Court delivered judgment in this matter on 2 August 2018: Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 (the principal judgment).
The proceedings concerned whether Mr Lewis was entitled to an equitable interest in Lot 1 in a certain deposited plan of land at Agnes Banks in this State. Lot 1 is contiguous with the other lot in the deposited plan, being Lot 2. At all material times, Mr Stewart had been the registered proprietor of both Lot 1 and Lot 2.
The basis of Mr Lewis' claim for an interest in Lot 1 was complex. For present purposes, it is not necessary to relate the nature of Mr Lewis' claim or its legal basis.
At [248] of the principal judgment, I found that in principle, by reason of the many encouragements he gave to Mr Lewis, Mr Stewart was estopped from denying that Mr Lewis was entitled to a beneficial interest in Lot 1, which he would ultimately be entitled to enjoy if, upon Mr Stewart's ultimate death, no contingency occurred that would have the effect of denying Mr Lewis that beneficial interest in Lot 1. This was on the hypothesis that Mr Stewart had acted in accordance with his assurances and made a will leaving Lot 1 to Mr Lewis.
However, at [249], I recorded that I was not satisfied that Mr Lewis had established that the remedy required in equity to avoid unconscionable conduct on Mr Stewart's part extended to full and absolute beneficial ownership of Lot 1.
I then, at [250] and [251], explained why the evidence that the parties put before the Court was not sufficient to enable the Court to decide in a precise way the remedy to which Mr Lewis was entitled.
I gave the parties a further opportunity to make submissions as to the relief that the Court should award to Mr Lewis.
The parties made further submissions and, on 5 July 2019, I delivered a further judgment: Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew (No 2) [2019] NSWSC 841 (the relief judgment).
At [31] of the relief judgment, I stated my conclusion that Mr Stewart should be ordered to pay compensation to Mr Lewis equal to 90% of the value of Lot 1, determined by its sale with Lot 2 in one line, and on the basis that the value of each Lot per square metre will be assumed to be equal.
Given that a process had to be determined for the sale of both Lots, I discussed some matters that should be addressed in the short minutes of order, and invited the parties to confer concerning the appropriate orders to be made by the Court.
I also invited the parties to make submissions concerning the costs of the proceedings.
Unfortunately, it has taken considerable time for the parties to put the Court in the position where it can make final orders in these proceedings. As will be seen, the outstanding questions have not entirely been resolved, but I have decided that the point has been reached where the Court must make the most appropriate final orders that can now be made.
Since the principal judgment was handed down, Mr Stewart has unfortunately died, and some time elapsed while his sister and tutor obtained a grant of probate of Mr Stewart's will. At a directions hearing on 11 February 2020, I noted that a grant of probate of the estate of Mr Stewart was made to Ms Mayhew on 25 October 2019.
At a directions hearing that took place on 5 June 2020, it became apparent that there was a dispute between the parties as to what orders should be made to deal with any land tax that was outstanding on the two Lots, and also how any capital gains tax (CGT) that may become payable on the sale of the two Lots should be borne. I made directions for the service of submissions concerning the orders that should be made by the Court to deal with land tax and CGT.
The Court received submissions from Ms Mayhew's solicitor on 19 June 2020, which attached Ms Mayhew's proposed draft orders.
Ms Mayhew's solicitors pointed out that Mr Stewart acquired the two Lots by separate transactions on 26 September 1989 and 23 October 2001, so that the sale of the two Lots will incur a CGT liability.
The entitlement to relief that has been acquired by Mr Lewis in respect of Lot 1 has been acquired as a result of representations made by Mr Stewart, principally from and after 2003, and by work done by Mr Lewis on the faith of those representations over a considerable number of years.
As to land tax, Ms Mayhew informed that Court that on 5 June 2020, she obtained a certificate from NSW Revenue which stated that there was no accrued land tax liability at that date.
Ms Mayhew's solicitor advised the Court that information concerning the possible CGT liability had been obtained from the solicitors acting for Ms Mayhew in the administration of Mr Stewart's estate. Those calculations have not been verified by an accountant, which is something that would need to occur following the sale of the two Lots.
Ms Mayhew's submissions explained how the total estimated cost base for the two Lots was $515,000. Assuming the two Lots were sold for $2,000,000, the net capital gain on sale would be $1,485,000. Applying the 50% discount, there would be an estimated taxable capital gain of $742,500. The submission then advised that, based on the current tax rates and assuming no other assessable income of Mr Stewart's estate, the estimated tax payable on the capital gain is $307,222.
Ms Mayhew's submissions then estimated total selling costs on the basis of the deduction of the agent's commission, conveyancing costs, and CGT payable, which led to an estimate of net sale proceeds of $1,660,278.
On the basis of an area comparison between the two Lots made by Ms Mayhew's solicitor, which yielded that Lot 1 comprises 7.1% of the combined land area of Lots 1 and 2, the proportionate share of the estimated net sale proceeds attributable to Lot 1 would be $117,879.74. As the orders contemplated by the Court had the effect that Mr Lewis would be entitled to receive a 90% share in the net value of Lot 1, his estimated receipt would be $106,091.77.
The draft orders proposed by Ms Mayhew were in the following terms:
1. That, subject to order 3 hereof, the defendant's executor forthwith do all acts and things, give all instructions and authorisations necessary to cause the whole of the land comprised in Folio Identifiers DP 1/521955 and DP 2/521955 to be sold as one aggregation ("Lots 1 and 2") by public auction on or before the date twelve (12) weeks from the date of these orders, at a reserve price agreed in writing by the executor for the defendant and the solicitor for the plaintiff not less than 14 days before the auction date and cause the proceeds of sale of Lots 1 and 2 to be applied:
a. in payment of agent's commission, legal fees and selling expenses;
b. in payment of any capital gains tax which may be assessed on the sale of the Lots;
c. in payment to the plaintiff, or such person as the plaintiff nominates in writing, a sum equivalent to 90% of Lot 1, calculated by reference to the aggregate sale price obtained for Lots 1 and 2;
d. in payment to the defendant's executor of the balance of proceeds of sale of Lots 1 and 2 then remaining.
2. That either party have liberty to apply for further orders in respect of the reserve price in order 1 on two days' notice, by arrangement with the Associate to Robb J.
3. That, provided that the agreement of the solicitor for the plaintiff has first been obtained, the defendant by his executor shall be entitled, at any time prior to the sale of Lots 1 and 2 pursuant to order 1 hereof to sell the said lots by private treaty, in which event, the executor for the defendant shall cause the proceeds of sale of the lots to be applied in the manner and order provided by order 1 hereof.
4. That the defendant's executor, forthwith do all acts and things, give all instructions and authorisations necessary to provide the plaintiff with access to Lot 1, including access over Lot 2 if necessary, to remove his personal belongings, including but not limited to machinery and vehicles, that remain on Lot 1. Such access to occur within four weeks of date of these orders;
5. That the defendant pays the plaintiff's costs on the ordinary basis as agreed or assessed.
6. That either party have liberty to apply for further orders to implement these orders on giving seven days' notice, by arrangement with the Associate to Robb J.
As appears from proposed order 5, the parties were able to agree to the costs order that should be made by the Court.
Ms Mayhew submitted that, as the Court found in the principal judgment that Mr Lewis has accrued his interest in Lot 1 over a long period of time, it is reasonable that Mr Lewis should bear a liability for the selling costs (including any CGT) on the sale of Lots 1 and 2 that is proportionate to his interest in the proceeds of sale of Lot 1. Further, as Lot 1 has not been the principal place of residence of Mr Lewis, Mr Lewis would not be entitled to any exemption in respect of the CGT that is payable.
Mr Lewis' solicitor provided submissions in response to Ms Mayhew's submissions on 2 July 2020.
Mr Lewis pointed out that further land tax might be levied on the two Lots as at midnight on 31 December 2020, unless the land is exempt. That is a good reason for final orders to be made as soon as possible so that there is some chance that the two Lots can be sold before further land tax is levied.
Mr Lewis made the following submission concerning liability for CGT:
Capital Gains Tax liability (if any) is a personal tax and not a charge on land and shouldn't be taken into account. Any Capital Gains Tax liability is part of the defendant's (or his estate's) personal income tax assessment. I refer to the attached extract (Annexure "A") from the current ATO website. Capital Gains Tax is of no relevance to the plaintiff's beneficial interest in Lot 1 as found by the Court.
Any cost base for calculation of capital gains tax (if considered relevant) ought also to include costs incurred to the plaintiff in the estimated amount of $170,000 (plus GST) being money paid for and related to the land than cost of ownership. I refer to the attached extract (Annexure "B") from the current ATO website.
Mr Lewis also submitted that it was consistent with the principal judgment that the Court should allow in the orders for the possibility for Mr Lewis to acquire Lot 1 individually. I understand this submission to mean that Mr Lewis wished to apply his 90% interest in the net proceeds of sale of Lot 1 towards a negotiated purchase price for that Lot.
Mr Lewis' submissions contained a revised version of Ms Mayhew's proposed orders. I will set out the draft orders proposed by Ms Mayhew that have been amended by Mr Lewis:
1. That, subject to order 3 hereof, and unless otherwise agreed between the parties, the defendant's executor forthwith do all acts and things, give all instructions and authorisations necessary to cause the whole of the land comprised in Folio Identifiers DP 1/521955 and DP 2/521955 to be sold as one aggregation ("Lots 1 and 2") by public auction on or before the date twelve (12) weeks from the date of these orders, at a reserve price agreed in writing by the executor for the defendant and the solicitor for the plaintiff not less than 14 days before the auction date and cause the proceeds of sale of Lots 1 and 2 to be applied:
a. in payment of reasonable agent's commission, reasonable conveyancing legal fees and reasonable selling expenses;
b. in payment of any capital gains tax which may be assessed on the sale of the Lots;
c. in payment to the plaintiff, or such person as the plaintiff nominates in writing, a sum equivalent to 90% of Lot 1, calculated by reference to the aggregate sale price obtained for Lots 1 and 2;
d. in payment to the defendant's executor of the balance of proceeds of sale of Lots 1 and 2 then remaining.
...
3. That, provided that the agreement of the solicitor for the plaintiff has first been obtained, the defendant by his executor shall be entitled, at any time prior to the sale of Lots 1 and 2 pursuant to order 1 hereof to sell the said lots individually or together by private treaty. If individually, the executor for the defendant will give the plaintiff first option to purchase Lot 1 by private treaty for a price based upon a reasonable market appraisal for Lot 1 in which case the plaintiff will be entitled to a set-off of 90% from the sale price and the plaintiff in such case shall bear a proportionate (based on area) burden of the reasonable agent's commission, reasonable conveyancing legal fees, and reasonable selling expenses for the sale of Lot 1 to the plaintiff, otherwise in which event, the executor for the defendant shall cause the proceeds of sale of the lots to be applied in the manner and order provided by order 1 hereof.
4. That the defendant's executor, forthwith do all acts and things, give all instructions and authorisations necessary to provide the plaintiff with access to Lot 1, including access over Lot 2 if necessary, to remove his personal belongings, including but not limited to machinery and vehicles, that remain on Lot 1. Such access to commence occur within four weeks of date of these orders and continue for such reasonable period as may be necessary for such purposes. Access may further extend on the plaintiff's request to permitting the plaintiff for a reasonable time to tidy up Lot 1 and carry out such repairs thereon as may be reasonably necessary to enable a more favourable presentation of Lots 1 and 2 for sale;
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6. That the executor for the defendant keep the solicitor for the plaintiff reasonably informed upon request of the said solicitor as to progress of the sale of the Lots and that either party have liberty to apply for further orders to implement these orders on giving seven days' notice, by arrangement with the Associate to Robb J.
I am prepared to accept the revisions suggested by Mr Lewis to proposed order 1 (save for sub-order (b)), order 4 (with a qualification referred to below) and order 6.
I am not prepared to accept the simple deletion of proposed order 1(b), which would have the effect that Mr Stewart's estate would be liable for the whole of the CGT that may be payable on the sale of Lots 1 and 2, without any contribution from Mr Lewis.
As I understand that Ms Mayhew opposes the revision to proposed order 3, I will not accept that revision. My reason is that the proposed order that Lots 1 and 2 be sold in one line, and that Mr Lewis' entitlement to receive 90% of the value of Lot 1, calculated proportionally on the assumption that the whole of the two Lots have the same value on a per square metre basis, was reached on the application of Mr Lewis. In the submissions that the Court originally received from Mr Lewis concerning the orders to be made, he submitted that he was entitled to protection against the possibility that, if Mr Stewart's estate were permitted to sell the two Lots under separate contracts, he would be at risk of Ms Mayhew loading the sale price onto the contract for the sale of Lot 2. Consequently, the Court adopted the expedient, at Mr Lewis' request, of requiring the two Lots to be sold in one line, and Mr Lewis' share calculated on the basis that the two Lots were equally valuable on a per square metre basis.
Mr Lewis' new suggestion that Lot 1 should be sold separately and he should be entitled to bid for it is inconsistent with the position that he has adopted to this time, and it is not appropriate that the Court should give Mr Lewis an option to require Ms Mayhew to sell both Lots together, or only Lot 1 to Mr Lewis, if it suits him. In any case, an order in the terms proposed by Mr Lewis may not work practically, because there would need to be some mechanism for determining the "reasonable market appraisal for Lot 1", which is likely to lead to further dispute.
Of course, if Mr Lewis wants to apply his 90% share in the value of Lot 1 to the purchase of Lot 1, there is no reason in principle why he should not seek to negotiate that arrangement with Ms Mayhew, even if that involves a consensual departure from the effect of the orders that the Court will make.
The qualification to the revision of order 4 suggested by Mr Lewis is that any tidying up and repair work that Mr Lewis may wish to carry out on Lot 1 must not interfere with the efficient sale process of the two Lots.
Unfortunately, the difference in the positions of the parties concerning the payment of CGT did not assist the Court to decide what final orders should be made to dispose of these proceedings.
I arranged for my Associate on 11 August 2020 to communicate with the solicitors for the parties by email.
The email pointed out that, if the Court made the orders proposed by Ms Mayhew, then CGT would be calculated on the basis of the full sale price for the two Lots, as if Mr Stewart's estate continued to be the beneficial owner of those Lots. The CGT rate would reflect the tax and income position of Mr Stewart's estate. While that course would ignore Mr Lewis' financial circumstances, it would have the advantage of simplicity.
The email advised the parties that the Court would not accept Mr Lewis' submission concerning the treatment of CGT, which would have the effect of throwing the whole burden of CGT onto Mr Stewart's estate.
The email then advised the parties that the Court did not know how the CGT legislation would apply to the unusual combination of the sale of the two Lots in one line, combined with the effect of the orders that the Court proposed to make. It noted that the parties had not specifically addressed this issue.
The email suggested that the Court might consider making an order declaring that Mr Lewis has an equitable interest in Lot 1, in a proportion that accorded with the reasons in the principal judgment. The making of such an order would be inconsistent with the position adopted by the Court in the relief judgment that Mr Lewis should only receive equitable compensation from the sale of the two Lots. The email then raised the question of whether, if such a declaration were made, when Ms Mayhew sold the two Lots, the CGT that would be payable would be calculated only on the estate's share in the value of the two Lots. If so, then it might follow that the CGT payable by Mr Stewart's estate would be fair and related only to the estate's circumstances.
In the email my Associate then stated:
That may leave the plaintiff with a complicated CGT position. However, whether or not the plaintiff is liable to pay CGT would depend only on his own circumstances. It is a matter for the plaintiff to get advice on this issue.
His Honour wants to make final orders in this matter as soon as possible. The parties should respond to this email and direct their attention to whether the making of a declaration that divides the beneficial interests in the two Lots between the two parties will make the position fairer as to payment of CGT.
If this is too complicated a question, or the answer is too doubtful, then his Honour will probably make the orders proposed by the defendant in so far as they deal with the payment of CGT.
Mr Lewis' solicitor responded by email addressed to my Associate dated 13 August 2020. The email stated:
With reference to His honour's direction set out in your email of 11 August, last, the plaintiff's view is that in the circumstances, the Court should make an order declaring that the plaintiff has the relevant percentage interest in Lot 1 in accordance with the reasons for judgment. The plaintiff can deal with his CGT position in due course. In writing the above, I have read the defendant's position as contained in a letter to me dated today's date and confirm the plaintiff is not in agreement with it.
I note that the Court has not been provided with a copy of the letter referred to by Mr Lewis' solicitor.
Also, on 13 August 2020, counsel for Ms Mayhew responded to that email by email to my Associate.
That email contained the following submissions:
The defendant sees the primary difficulty in a separate calculation of capital gains tax (CGT) on the plaintiff's share of Lot 1 to be the fixing of the date or dates of acquisition of the plaintiff's entitlement or entitlements in that lot, which appears to have accrued over a period of time.
The second difficulty is an assessment of the acquisition cost of the plaintiff's entitlement. The third difficulty is, or may be, the cost the plaintiff will incur in obtaining the valuation or valuations of his interest in the lot.
It is submitted for the defendant that, had the plaintiff received the interest he claimed in Lot 1 pursuant to the deceased's Will - as was claimed in the plaintiff's pleadings and advanced at the hearing - he would have incurred a commensurate proportion of the CGT consequence now faced by the estate in any event, even if that consequence might be deferred by a transfer in specie.
The defendant maintains that the appropriate order should require the payment of CGT by the estate on completion of the sale of both lots and before the plaintiff receives a distribution of his 90% entitlement to Lot 1.
The reason why the Court has entertained the parties' submissions concerning the payment of CGT that may follow the sale of the two Lots is because the conclusion reached in the relief judgment at [31] was that the appropriate form of the relief to be awarded to Mr Lewis was equitable compensation, and not a declaration that Mr Lewis had a beneficial interest in one or both of the two Lots. That conclusion was reached without the parties having made any submissions concerning the significance of CGT. The need to take into account CGT only became apparent when the parties responded to the Court's request that they prepare short minutes of order to give effect to the relief judgment. It is only when the parties responded to that request that the Court learned that an estimated amount of $307,222 would become payable by Mr Stewart's estate, if the sale price achieved for the two Lots was $2,000,000.
On the basis that Lot 1 occupies 7.1% of the total area of the two Lots, the share of the GST that Mr Lewis would be required to bear is $21,812.76.
The possibility that the equitable compensation that Mr Lewis will receive may be reduced by that amount by reason of the need of Mr Stewart's estate to pay CGT following the sale of the two Lots is not sufficiently significant to justify the Court in reconsidering the nature of the relief that should be granted to Mr Lewis. This is an issue that should have been raised before the Court delivered the relief judgment. It would be artificial for the Court now to make a declaration that Mr Lewis has an equitable interest in Lot 1, in the nature of a remedial constructive trust, equal in value to 90% of a proportion of the whole sale price for Lots 1 and 2, calculated by reference to the area of Lot 1 measured against the area of the two Lots. In essence, the submission made by Mr Lewis that his remedy should be calculated by reference to the sale price of the two Lots to which I have referred above, and which I accepted in the relief judgment, is not consistent with the Court simply declaring that Mr Lewis has a 90% beneficial interest in Lot 1.
I will add the following observation concerning the calculation of the CGT that may become payable. I note that in Ms Mayhew's 19 June 2020 submissions the cost base for the purpose of estimating the CGT allowed an estimated $150,000 described as: "Costs of defending ownership (the current proceedings)". Mr Lewis' 2 July 2020 submissions asserted that his costs of the proceedings were estimated at $170,000 plus GST. Order 5 proposed by Ms Mayhew will require Mr Stewart's estate to pay Mr Lewis' costs of the proceedings on the ordinary basis. If, as seems likely, the $150,000 is only an estimate of Mr Stewart's estate's cost of the proceedings, then it may be legitimate for the cost base to be calculated on a basis that includes the assessed or agreed costs of Mr Lewis. If that is a correct supposition, then the reduction in the equitable compensation that will be payable to Mr Lewis as his notional share of the CGT liability will be reduced.
I have made a number of amendments that I think are appropriate to the orders proposed by the parties.
The Court orders:
1. That, subject to order 4 hereof, and unless otherwise agreed between the parties, the executor of the estate of the late defendant forthwith do all acts and things, give all instructions and authorisations necessary to cause the whole of the land comprised in Folio Identifiers DP 1/521955 and DP 2/521955 to be sold as one aggregation ("Lots 1 and 2") by public auction on or before the date twelve (12) weeks from the date of these orders, at a reserve price agreed in writing by the executor and the solicitor for the plaintiff not less than 14 days before the auction date and cause the proceeds of sale of Lots 1 and 2 to be applied:
1. in payment of reasonable agent's commission, reasonable conveyancing legal fees and reasonable selling expenses;
2. in payment of any capital gains tax which may be assessed on the sale of the Lots;
3. in payment to the plaintiff, or such person as the plaintiff nominates in writing, a sum equivalent to 90% of Lot 1, calculated by reference to the aggregate sale price obtained for Lots 1 and 2 and the proportion of the area of Lot 1 to the combined area of the two Lots;
4. in payment to the executor on behalf of the estate of the defendant of the balance of proceeds of sale of Lots 1 and 2 then remaining.
1. That before the executor of the estate of the late defendant pays any capital gains tax which may be assessed on the sale of the Lots, the executor shall obtain appropriate accounting advice so that all reasonable and lawful steps are taken to minimise the capital gains tax which is payable, and shall provide that advice to the solicitor for the plaintiff at least two weeks before any tax return is lodged relevant to the payment of the capital gains tax.
2. That the plaintiff and the executor of the estate of the late defendant have liberty to apply for further orders in respect of the reserve price in order 1 on two days' notice, by arrangement with the Associate to Robb J.
3. That, provided that the agreement of the solicitor for the plaintiff has first been obtained, the executor of the estate of the late defendant shall be entitled, at any time prior to the sale of Lots 1 and 2 pursuant to order 1 hereof to sell the said lots by private treaty, in which event, the executor shall cause the proceeds of sale of the lots to be applied in the manner and order provided by order 1 hereof.
4. That, subject to order 6, the executor of the estate of the late defendant forthwith do all acts and things, give all instructions and authorisations necessary to provide the plaintiff with access to Lot 1, including access over Lot 2 if necessary, to remove his personal belongings, including but not limited to machinery and vehicles, that remain on Lot 1, such access to commence within two weeks of date of these orders and continue for such reasonable period as may be necessary for such purposes. Access may further extend on the plaintiff's request to permit the plaintiff for a reasonable time to tidy up Lot 1 and carry out such repairs thereon as may be reasonably necessary to enable a more favourable presentation of Lots 1 and 2 for sale.
5. The access granted to the plaintiff to Lot 1 and Lot 2 by order 5 shall not be exercised by the plaintiff in a manner that unreasonably interferes with the process of the sale of the two Lots required by order 1 at the best price achievable.
6. That the defendant pays the plaintiff's costs on the ordinary basis as agreed or assessed.
7. That the executor for the defendant keep the solicitor for the plaintiff reasonably informed upon request of the said solicitor as to progress of the sale of the Lots and that either party have liberty to apply for further orders to implement these orders on three days' notice, by arrangement with the Associate to Robb J.
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Decision last updated: 14 September 2020
Parties
Applicant/Plaintiff:
Kevin John Lewis
Respondent/Defendant:
Peggy Lillian Mayhew as executor of the estate of the late Peter William Stewart