HER HONOUR: This is an application, by summons filed 23 February 2017, brought by David Parsons, his sister Michelle Parsons and Darren Scott for orders in relation to the interest of the late Eric Sidney Parsons in a property at Maroubra (the Maroubra property). David and Michelle Parsons are the executors of the estate of their late mother, Daphne Norma Parsons. Darren Scott is the administrator of the estate of his late wife, Katherine Jane Scott nee Parsons. David, Michelle and Katherine (who died on 26 December 2009) are the children of the late Eric Sidney Parsons and the late Daphne Norma Parsons.
The deceased and Daphne Parsons separated in about 1978. The marriage between them was dissolved in 1979. On or about 26 June 1980, the deceased and Daphne Parsons entered into a deed pursuant to s 87 of the Family Law Act 1975 (Cth) recording, amongst other things, their agreement that the Maroubra property would be sold and that the deceased and Daphne Parsons would each receive one-half of the net proceeds of sale. However, the Maroubra property was not sold.
Khalid v Perpetual Limited [2017] NSWSC 349 | Case summary | Zoe
On or about 23 January 1985, the deceased, Daphne Parsons, and their three children entered into a deed (the 1985 Deed) pursuant to which it was agreed that the deceased would sell his one-half share of the Maroubra property to his children in equal one-eighth shares, for the total sum of $49,470.
There is evidence before me (see affidavit of David Michael Parsons sworn 13 February 2017) as to the payment in full of the purchase price that had been agreed in the 1985 Deed by way of instalments over the period through to 1991. There is no evidence of any claim made by the deceased prior to his death for any amount outstanding under that deed. There is also evidence that the deceased signed a transfer in respect of his interest in the Maroubra property, which was provided to solicitors acting for Daphne Parsons, and that the signed transfer was retained by those solicitors pending payment out of what was referred to as the comparatively small amount then still owing on the mortgage in respect of that property.
A copy of the signed transfer is annexed to the affidavit of David Parsons. The original signed transfer has not been able to be located despite enquiries having been made of the successor law firm to the solicitors (Salmon Connolly & Co) to whom the transfer was provided and who had indicated that it would remain in safe custody until registration at the Land Titles Office at some time in the future when the mortgage had been paid out.
The deceased died intestate on 10 November 2000. Letters of administration have not been granted by the Court in respect of the deceased's estate, although notice has been given of an application for a limited grant of letters of administration in relation to part of the deceased's estate (see affidavit of Justin Restuccia sworn 18 March 2017 at [2]).
On 2 February 2014, Daphne Parsons died, leaving a will dated 16 June 2008, a copy of which is in evidence. Under that will, amongst other things, Daphne appointed her son David and her daughter Michelle as her executors and trustees and gave her estate in equal shares to those of her three children who survived her, and to her grandchildren, by way of substitution, the share that would have passed to any child that pre-deceased her. Timothy Scott, who has survived his mother Katherine, is therefore entitled to receive his mother's share of Daphne's estate.
On 16 December 2012, probate of Daphne Parsons' will was granted to Michelle Parsons and David Parsons.
There has been evidence put before me as to the relationships that the deceased had with three women after his marriage to Daphne Parsons ceased. There is no evidence of any application having been made by any of those women (in relation to the deceased's estate) in the seventeen years since the death of the deceased in 2000.
There is also evidence that Daphne Parsons and her daughter Michelle remained in the Maroubra property uninterrupted and unchallenged from the time the executed transfer was delivered to Salmon Connolly & Co in 1986 and that no adverse claims were made by or on behalf of the deceased either prior to or following his death in 2000 to challenge the interest claimed by the plaintiffs in the deceased's share of the Maroubra property.
I am satisfied on the evidence that has been put before the Court that: the deceased agreed and intended to transfer his half-share of the Maroubra property to Daphne Parsons and the deceased's children in equal one-eighth shares pursuant to the terms of the 1985 Deed; the deceased executed a transfer in that respect and delivered the executed transfer to Salmon Connolly & Co, the former solicitors of the late Daphne Parsons for registration in due course; and the deceased was paid the full purchase price of $49,470 by instalments from 1985 to 1991. I am further satisfied that Daphne Parsons paid the stamp duty to register the transfer and paid out the mortgage on the Maroubra property, and that the transfer was held by Salmon Connolly & Co with the intention that the transfer would be lodged and registered upon payment out of the mortgage debt.
On the basis that a vendor holds property on trust by way of constructive trust for a purchaser when the purchaser has paid the purchase money (see Khalid v Perpetual Limited [2012] NSWCA 135 at [44], per Beazley JA, as her Honour then was) I find that, at the time of his death in 2000, the deceased held his share of the Maroubra property registered in his name on trust for Daphne Parsons and their three children.
In the present proceedings, the plaintiffs seek alternative forms of relief, namely relief pursuant to ss 70 and 71 of the Trustee Act 1925 (NSW) or alternatively relief pursuant to s 74 of the Probate and Administrative Act 1898 (NSW). I am satisfied that the relief that ought to be granted is the former.
Section 70 of the Trustee Act relevantly provides:
(1) The Court may make an order for the appointment of a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.
(2) The appointment may be made whenever it is expedient to appoint a new trustee or new trustees, and it is inexpedient difficult or impracticable so to do without the assistance of the Court.
Section 71 of the Trustee Act relevantly provides:
71 Vesting orders
(1) The Court may make an order in this Act called a vesting order, which shall have effect as provided in section 78.
(2) A vesting order may be made in any of the following cases, namely:
(a) where the Court appoints or has appointed a new trustee,
…
(l) where there is no legal representative of a trustee who was entitled to or possessed of any property or where it is uncertain who is the legal representative of a trustee who was entitled to or possessed of any property,
…
(n) where the Court might have made a vesting order if this Act had not been passed,
(o) where property is vested in a trustee, whether by way of mortgage or otherwise, either solely or jointly with any other person, and it appears to the Court to be expedient to make a vesting order.
(3) The provisions of paragraphs (d), (e), (f), (g), (h), and (i) of subsection (2)
…
I am satisfied that, as the deceased has died and there is no trustee to administer the trust, it is expedient to order that David Parsons be appointed trustee of the trust on which the deceased held his share of the Maroubra property.
I have read and rely upon the matters to which David Parsons deposes in his affidavit of 13 February 2017 in relation to his intention, if appointed administrator, to execute a transfer in order to transfer the share of the estate still registered in his father's name in order to enable the Maroubra property to be sold.
The Maroubra property is the subject of a contract of sale, the completion date of which has now passed. I am informed that the purchaser seeks to have the sale completed. In those circumstances, it is expedient for the Court to order that David Parsons be appointed trustee of the trust.
As to the order sought by the plaintiffs pursuant to s 71 of the Trustee Act, to vest the deceased's interest in the Maroubra property in David Parsons, I note the authorities relied upon by the plaintiff in this regard, including Macready & Anor; Estate of Leslie Macready [2004] NSWSC 887 at [17]; [18] per Barrett J, as his Honour then was; Strang v Strang (2009) NSWSC 760 at 61 per Nicholas J; Re Purkiss [1999] VSC 386 per Warren J at [16], [17]; Stret v Cordia [2016] NSWSC 1596; and Watt v Lord [2005] NSWSC 53.
I consider that it would be more efficient, and would facilitate the efficient disposal of the Maroubra property pursuant to the contract of sale of land, for orders to be made pursuant to ss 70 and 71 of the Trustee Act rather than to make the alternative order sought (which was for the limited grant of letters of administration of the deceased estate for the purpose of effecting the disposition of the Maroubra property).
I make the declaration set out in para [1] of the short minutes of order handed up by the plaintiff's counsel and I make the orders in paras [2] and [3] of those short minutes of order, which I will initial, date and place with the papers. I note that the claim for relief set out in paras [4] and [5] of the short minutes of order is not pressed. These orders are to be entered forthwith.
[2]
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Decision last updated: 05 April 2017