The defendant seeks by motion to stay the plaintiffs' action in this matter until a taxation ruling is obtained. But the plaintiffs want their action brought on for hearing. Despite this procedural dispute, the parties have an unusual degree of consensus about the disposition of these proceedings.
The plaintiffs (and the respondents to the motion), Mrs Joanne Elizabeth Ludwig and Mr Robert Walter Ludwig, are a married couple. The defendant (the applicant on the motion), Mr Lynton Barrett Jeffrey, is a cousin of Mrs Ludwig. The plaintiffs and the defendant are all registered proprietors under the Real Property Act 1900 as joint tenants of real estate situated in Chester Hill ("the property"); that is, Mr and Mrs Ludwig's domestic residence. Title details of the property are omitted from this judgment but are known to the parties and appear in the unpublished form of orders made with these reasons.
Mrs Ludwig's mother transferred the property to Mr Ludwig, Mrs Ludwig and Mr Jeffrey as joint tenants in November 1994. At the same time, the property was mortgaged to Advance Bank Australia Limited ("Advance Bank"). In a not uncommon arrangement Mr Jeffrey's presence on the title assisted his relatives obtain the finance that was secured over the property. In August 2000, the Advance Bank mortgage was discharged, and Mr and Mrs Ludwig and Mr Jeffrey (as joint mortgagors) re-mortgaged the property to Newcastle Permanent Building Society Limited ("Newcastle Permanent") at the request of the borrowers, who were identified only as Mr and Mrs Ludwig.
The Ludwigs' Statement of Claim seeks declarations that Mr Jeffrey holds his one-third share in the property on express, constructive, or, alternatively, resulting trust for each of the plaintiffs. The Ludwigs then seek the transfer of one half of Mr Jeffrey's interest in the property to each of them. In the alternative, they seek the appointment of trustees for sale under Conveyancing Act 1919, s 66G.
Mr Jeffrey has never claimed a beneficial interest in the property. Indeed, he admits this in his Defence and in his Cross-Claim, and he seeks a declaration that he holds the property on trust for the plaintiffs. But the Cross-Claim also claims indemnity for various costs and liabilities ancillary to Mr Jeffrey's trusteeship.
It is not in contest that Mr Jeffrey was not the source of any part of the purchase price of the property upon its acquisition in November 1994. Nor did he pay any part of the stamp duty at purchase, nor any fees, interest, or principal repayments on the Advance Bank or Newcastle Permanent mortgages. Nor did he pay any outgoings, utility bills, repairs or maintenance expenses of any kind in respect of the property, including land tax or council rates.
Mr Jeffrey did not understand that any outgoings the Ludwigs met in respect of the property were gifts to him. Mr Jeffrey has not received any funds in connection with any loan proceeds secured by any of the mortgages registered over the property. The relationships of the parties (they being only cousins and not standing in loco parentis) do not give rise to the presumption of advancement.
Mr Jeffrey agrees that the property should be transferred to Mr and Mrs Ludwig. But he wants to be indemnified for all his actual and contingent property-related liabilities before he completes a transfer of his interest as joint tenant to them. Principal among Mr Jeffrey's contingent liabilities related to the property is any capital gains tax ("CGT") that might be assessed and become payable to the Australian Taxation Office ("the ATO"), when he transfers his interest to the Ludwigs.
The parties advocate different approaches to managing that potential CGT liability. After extensive negotiations between the parties, Mr Jeffrey has asked the ATO for a private ruling as to his potential liability for CGT. He seeks this under the scheme for private rulings by the Commissioner of Taxation ("the Commissioner") under the Taxation Administration Act 1953 (Cth), Schedule 1, Part 5-5. Mr Jeffrey's motion seeks that, pending the Commissioner's ruling, these proceedings be stayed under the Court's broad power under the Civil Procedure Act 2005 ("CPA"), s 67. Once the ruling has been obtained, Mr Jeffrey submits that his interest in the property can be transferred at the same time as any potential ATO tax liability is provided for, or satisfied.
Mr and Mrs Ludwig acknowledge Mr Jeffrey's right of indemnity. But they contend: that Mr Jeffrey's interest in the property should be transferred to them now; and that after the transfer to them, they will borrow funds (secured over the property) to satisfy Mr Jeffrey's contingent CGT liabilities arising out of the transfer.
But Mr Jeffrey says that this solution is unsatisfactory. He submits it may leave him exposed to a tax liability that the Ludwigs cannot satisfy. He does not want to be left out of pocket for discharging his role as trustee.
Mr J. Pearson of counsel, instructed by Shad Partners, represented the plaintiffs/respondents on the motion. Ms C. Ensor of counsel, instructed by Whitfields Solicitors, represented the defendant/applicant on the motion.
[2]
CGT, Real Property and Trusts
There is genuine uncertainty as to whether CGT will be assessed and payable upon Mr Jeffrey's prospective transfer of his interest in the property to the Ludwigs. This uncertainty drives the issues now before the Court. Because of this, a brief overview is useful about the issue behind Mr Jeffrey's possible liability for the assessment of CGT on the transfer.
Individuals who own a CGT asset, such as the property, as joint tenants are treated for CGT purposes as if they each owned a separate CGT asset constituted by an equal interest in the asset and as if each of them held that interest as a tenant in common: Income Tax Assessment Act 1997 (Cth), s 108-7 ("ITAA 97").
A trustee of a trust can be assessed to CGT upon the happening of a number of trust-related events. The trustee may dispose of a CGT asset: ITAA 97, s 104-10. A trust may be declared over a CGT asset: ITAA 97, s 104-55. When a beneficiary becomes absolutely entitled to a CGT asset of a trust, a CGT event may occur: ITAA 97, s 104-75.
But the CGT legislation does not apply to the legal owner of an asset if that legal owner held it on trust for another person and the other person was "absolutely entitled to that asset as against the trustee": ITAA 97, s 106-50. But the expression "absolutely entitled" is not defined within ITAA 97. Whether the CGT legislation applies to the transaction proposed here depends upon whether it can be said that the Ludwigs were "absolutely entitled" to Mr Jeffery's interest as a joint tenant in the property. If they are found to be "absolutely entitled" then a CGT liability may not arise.
At general law, a beneficiary is regarded as "absolutely entitled" if the beneficiary is sui juris, has an indefeasible interest in the entire trust asset and is entitled to call for the asset to be transferred to them or at their direction: Saunders v Vautier (1841) 4 Beav 115; (1841) 49 ER 282, and Taras Nominees Pty Ltd as Trustee for Burnley Street Trust v Commissioner of Taxation (2015) 228 FCR 418; (2015) 320 ALR 597; [2015] FCAFC 4, (at [9]).
Draft Taxation Ruling (TR) 2004/D25 ("TR 2004/D25") publishes the Commissioner's view on the circumstances in which a beneficiary of a trust is considered to be absolutely entitled to a CGT asset of the trust as against its trustee.
TR 2004/D25 states that the requirements for absolute entitlement within the context of the CGT provisions cannot be satisfied, if there are multiple beneficiaries in respect of a single asset such as land. While each beneficiary may have an interest in, and therefore be entitled to, a share of the land, the asset to which the provisions refer is the land and no beneficiary in this case is entitled to the whole of it.
Where more than one beneficiary has an interest in trust assets, TR 2004/D25 states that an absolute entitlement can only be established if the assets are fungible.
If the assets are not fungible, but more than one beneficiary has an interest in them, then TR 2004/D25 states that under the terms of the trust, individual beneficiaries are not entitled to particular assets to the exclusion of other beneficiaries. If each asset is unique, but the trust does not clearly set out which beneficiary is to get which asset, this indicates an intention that each beneficiary is in fact to have an interest in each of the assets.
Mr and Mrs Ludwig are joint beneficiaries in respect of the single asset of the trust here (Mr Jeffrey's interest as joint tenant), which is an interest in land; a non-fungible asset. On the ATO's published view in TR2004/D25, the uncertainty in Mr Jeffrey's tax position is that if he executes transfers to each of Mr and Mrs Ludwig, the Commissioner may not apply ITAA97, s 106-50 to prevent the CGT provisions from applying in respect of the disposal of the asset. Mr Jeffrey would instead be assessed as liable to CGT.
This motion cannot decide the likely outcome of a debate about Mr Jeffrey's CGT tax liability. The only reasonable position that can be taken is that the potential CGT tax liability arising on Mr Jeffrey's transfer of his interest as a tenant in common in the property to the Ludwigs must be regarded as uncertain.
Mr Jeffrey says that the uncertainty about this question can be resolved by obtaining a private ruling from the Commissioner. The Ludwigs do not dispute that a private ruling is available. They have co-operated in the process of obtaining that ruling.
[3]
ATO Private Rulings
The Taxation Administration Act 1953 (Cth) ("TAA"), Part 5-5, Sch 1 provides a way for taxpayers to ascertain the ATO's view (the Commissioner's view under the scheme) about how certain laws administered by the Commissioner apply. The capacity to obtain private rulings is designed to reduce uncertainty in taxpayers self-assessing their tax obligations, or entitlements: TAA, Schedule 1, s 357-5(1).
The Commissioner may give a private ruling about how the Commissioner considers a relevant provision would apply to the taxpayer in relation to a specified scheme: TAA, Schedule 1, s 359-5(1).
Except in certain presently irrelevant circumstances, a Commissioner's private ruling for the trustee of a trust relating to the affairs of the trust also applies to the beneficiaries of the trust: TAA, Schedule 1, s 359-30(a). Private rulings bind the Commissioner primarily when the taxpayer acts in accordance with the transaction proposed in the application for the ruling: TAA, Schedule 1, s 357-60.
The Commissioner's private rulings must be provided within 60 days unless the Commissioner makes a request for further information: TAA, Schedule 1, s 359-50. The Commissioner is entitled to take into account information from third parties in making a private ruling: TAA, Schedule 1, s 357-120.
[4]
Provision for Contingent Trust Liabilities
Mr Jeffrey proposes an arrangement in which sufficient money to cover the CGT liability, if any, determined by the Commissioner's private ruling will be set aside before the transfer to the Ludwigs as a fund reserved to meet that liability. He submits that getting the ruling in advance would enable the quantum of that fund to be determined before the transfer of the property. His position after transfer would then be secure, as he would have a sufficient fund as a resource to satisfy his contingent trust liabilities when he is no longer registered proprietor of his interest as a joint tenant.
The reservation from trust property of a fund to meet a trustee's contingent liabilities is a commonly used mechanism in trust practice. A trustee is entitled to retain trust property against a beneficiary, pending determination of contingent liabilities of the trust, both at general law and by statute: Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) (2015) 257 CLR 544, (at [199]); (2015) 326 ALR 590; [2015] HCA 48, and ITAA 1936, s 254(1)(d) and (e) ("ITAA 36"). A potential taxation liability is such a contingent liability, in respect of which a fund can be set aside to satisfy a trustee's tax liability, in advance of the tax liability crystallising: Lym International Pty Ltd v Westpac Banking Corporation [2011] NSWSC 927, (at [19]), and Balkin v Peck (1998) 43 NSWLR 706; (1998) 98 ATC 4842; (1998) 40 ATR 15.
[5]
The Course of the Proceedings So Far
Before these proceedings were commenced on 9 May 2018, Mr Jeffrey cooperated with the Ludwigs in seeking to transfer his share in the property to them. He has incurred expenses in preparing and negotiating a draft deed that it was thought would give effect to the transfer, with an appropriately secure indemnity for his liabilities. As might be expected, these negotiations mostly took place through lawyers.
But the parties were unable to agree on a mutually acceptable form of deed. In June 2018, Mr Jeffrey raised with the Ludwigs the possibility of seeking a private ruling from the ATO to obtain greater certainty about the likely taxation outcome of the transaction the Ludwigs were proposing.
The parties exchanged correspondence in June and July 2018 about applying for a private binding ruling from the ATO. In the meantime, Mr Jeffrey filed his Defence on 18 July 2018, expressly admitting he held his interest in the property on trust for the Ludwigs. His Cross-Claim, seeking indemnity against his contingent liabilities as trustee, was filed at the same time.
On 27 July 2018, the Ludwigs agreed to lodge a private ruling application. Their agreement was conditioned upon their being provided with a copy of the draft application for the ruling and having the opportunity to make submissions about any CGT liability. The Ludwigs agreed: to pay the legal costs of an application being prepared; and to deposit into a jointly controlled bank account the amount, if any, the private ruling determined to be payable.
On 14 August 2018, Mr Jeffrey sought a copy of the Real Property Act transfers which the Ludwigs contended should be signed, so that they could be annexed to the private ruling application. The same day the Ludwigs provided a draft transfer for submission to the ATO. The next day, 15 August 2018, the Ludwigs filed their joint Defence to the Statement of Cross-Claim, which admitted Mr Jeffrey's claim (at Cross-Claim, [20]) that the Court should order them to pay the costs of the preparation of a private ruling application, so the CGT liability payable by Mr Jeffrey on registration of the transfer could be ascertained and then set aside in a jointly controlled fund.
The Amended Statement of Claim filed on 26 July 2018 sought execution of written transfers from Mr Jeffrey to the Ludwigs. On 3 September 2018, Mr Jeffrey sought clarification as to whether the single Real Property Act transfer that had been provided was the one the Ludwigs wanted signed and annexed to the private ruling application. Mr Jeffrey asked on 8 September 2018 how many transfers were required. On 10 September 2018, Mr and Mrs Ludwig provided three draft transfers under the Real Property Act; being respectively a transfer severing the joint tenancy, a transfer of half of Mr Jeffrey's one-third share to Mr Ludwig and the other half of his one-third share to Mrs Ludwig.
On 13 November 2018, Mr Jeffrey provided a draft private ruling application to the Ludwigs for their approval. On 14 November 2018, the Ludwigs responded, clarifying that the transfers provided on 10 September 2018 were the transfers for the purposes of the ruling application.
Unused funds that had been advanced by the Ludwigs for drafting the private ruling application were returned to them at their request, after a dispute arose as to who would draft legal submissions for the application. Mr Jeffrey says he returned these funds on the basis that the Ludwigs were responsible for drafting the legal submissions for the application. He says he has closely consulted with the Ludwigs in preparing the application as they will benefit from a more favourable application of the CGT legislation. He says, not unreasonably that they are likely to know more about the facts that might attract a CGT exemption. Mr Jeffrey lives overseas and is less familiar with those matters.
Little correspondence passed between the parties in the first part of this year. But a satisfactory solution to satisfying Mr Jeffrey's contingent CGT liability was not found.
On 9 August 2019, Mr Jeffrey provided a draft private ruling application for Mr and Mrs Ludwig's consideration. He raised the need for a stay of the proceedings, while the application was being determined. On 13 August 2019, Mr Jeffrey lodged the private ruling application with the ATO. The same day, he filed the present motion for a stay.
[6]
Mr Jeffrey Argues for a Stay
Mr Jeffrey argues the Court should now order a stay. Without the Commissioner's private ruling, he argues significant uncertainty governs how the Commissioner would tax the transfer from Mr Jeffrey to the Ludwigs.
Mr Jeffrey submits that he may be liable to CGT but if the Ludwigs proposal is accepted he will not hold any trust asset to ensure he can satisfy that trust liability. He submits a preferable course is before transfer to set aside an appropriate sum to meet the contingent taxation liabilities of the trust. This could be placed in a jointly controlled trust account prior to the execution of the transfers. But the parties cannot presently agree on such a sum.
He submits that obtaining a private ruling provides a mechanism for the parties to obtain certainty as to an appropriate amount to be set aside upon execution of the transfers. This, he says, will avoid the need to activate the default remedy of a Conveyancing Act, s 66G order appointing trustees for sale. He submits his proposal will preserve the ability for the plaintiffs to continue to reside in their family home.
Mr Jeffrey submits that he has not delayed in bringing this motion. He says any delay that has occurred is due to his attempts to obtain the Ludwigs' agreement to be bound by, and act in accordance with, the private ruling. Lodging of the private ruling application awaited the close of the plaintiffs' evidence in reply; thereby ensuring that all relevant information could be incorporated as part of the application. And Mr Jeffrey says the Ludwigs had sought an opportunity to make submissions on the private ruling application. But Mr Jeffrey submits they did not subsequently provide them, despite repeated requests. Delay in lodging the motion, he says, does not tell against granting the stay now sought.
He further submits that obtaining a private ruling will narrow the issues in dispute. It will eliminate one of the matters requiring determination by the Court: the existence and quantum of a CGT liability on Mr Jeffrey's transfer.
Next, he submits there is no identified prejudice which the plaintiffs would suffer upon a stay, pending the private ruling to be obtained.
Finally, he submits the stay would not be lengthy. He says the ATO is required to issue the ruling within 60 days of receipt of the requested information. Mr Jeffrey's solicitor will be able to actively progress this, despite some recent illness.
[7]
The Ludwigs' Submissions Against a Stay
The Ludwigs submit that the just, quick and cheap conduct of these proceedings, consistent with Civil Procedure Act 2005, s 56 ("CPA"), means that this matter should now be listed for hearing.
The Ludwigs submit that if the proceedings are heard and a declaration made as to the existence of a resulting trust, the Court can further order that the transfer of the trust asset be made conditional on Mr Jeffrey being put in funds to satisfy his indemnity. The parties can then be heard on the question of costs.
The Ludwigs submit three main advantages flow from the proceedings being determined before a private binding ruling is obtained from the Commissioner, as follows:
1. the proceedings will not be further unnecessarily delayed;
2. the risk that any ruling may not be subsequently binding will be ameliorated; and
3. the real issue in the proceedings, being the reasonableness of the expenses incurred by Mr Jeffrey, can be determined before he is put in funds.
The Ludwigs reiterate in their submissions that the existence of the trust is not in dispute, nor is Mr Jeffrey's entitlement to be indemnified for any tax or other liabilities incurred upon transfer of the trust asset in issue. The Ludwigs submit that the reason they commenced action in May last year was that they could not obtain Mr Jeffrey's agreement to terms dealing with the transfer and indemnity.
The Ludwigs submit they have long conducted themselves reasonably about Mr Jeffrey's CGT and other contingent liabilities. The Ludwigs submit that, on 9 April 2018, they proposed a deed of arrangement. The proposed deed contained terms for the transfer of the trust asset and the satisfaction of the indemnity. The Ludwigs submit that from then they agreed to acknowledge that Mr Jeffrey had a continuing indemnity in respect of any taxation or revenue liabilities incurred in the course of administering the trust. The deed contemplated that the Ludwigs would discharge Mr Jeffrey's indemnity by obtaining finance secured against their legal interest in the property. They submit that Mr Jeffrey did not reject the terms of the deed, but he ultimately did not accept them.
The Ludwigs say that at a final hearing of these proceedings the only issues remaining for determination will be: the reasonableness of Mr Jeffrey's expenses and to what extent Mr Jeffrey should be indemnified for his costs of these proceedings. And one of the costs issues at that time will be the costs of the present motion. The Ludwigs say it was unnecessary and was filed without notice to the plaintiffs.
Moreover, the Ludwigs submit that a stay is not needed, as a ruling is likely to be obtained by about mid-December 2019 in any event.
In the event that the proceedings are listed for hearing, the Ludwigs submit that some costs can still be saved. They submit, for example, the Court Book prepared for Mr Jeffrey's motion should stand as the Court Book for the hearing, subject to any additions or amendments which the parties may wish to make.
And the Ludwigs submit that the costs of Mr Jeffrey's motion should be reserved, as the overall question of costs in the proceedings is likely to be contentious.
[8]
Consideration
The balance of relevant considerations lies against granting a stay at this time. But that is not to say that the bringing of this motion has not been highly beneficial: it has allowed the Court to give direction to these proceedings. Mr Jeffrey has not delayed in bringing this motion. The relevant considerations are the following.
Timing does not indicate the need for a stay. The private binding ruling is anticipated to be ready before the end of the current law term. The parties should then have a reliable sense of the quantum of any CGT liability that will accrue upon the transfer of the trust property. They will then be in a position to negotiate or contest the remaining issues in these proceedings with greater certainty about what is at stake. A stay is only sought until the ruling is issued. When the motion was argued on 18 October 2019 that was expected to be about two months away. It is now only about six weeks hence. When such short periods are under consideration, an adjournment is more effective than a stay. That is what the Court proposes to grant in this matter. Even if a stay were not granted, the Court is unlikely to fix a final hearing in this matter until February next year. But the Court will not accede to the Ludwigs' proposal of fixing a final hearing now.
A stay is not indicated, when much can be done in the meantime. There is remarkably little left in issue in this case. Much can now be done between now and the end of law term to ready the parties either to have determined or to resolve what is left in issue.
The parties agree upon the existence of a trust, the trust property, and the Ludwigs' obligation to indemnify Mr Jeffrey out of trust property. But they cannot agree on two related issues: (1) the quantum of the indemnity ("the quantum issue"); and (2) the manner in which the right of indemnity will be secured or satisfied - and specifically whether that will be upon or after the transfer ("the indemnity security issue").
But now seized of the matter, the Court can give directions for the future management of these remaining issues in the proceedings. Something needs to be done to stop further costs being generated in what, looked at objectively, is from here on an avoidable conflict.
Because the Court's intervention is necessary, and a motion for directions would have at least been appropriate at this point in the proceedings, the Court will reserve costs on the motion. Instead, the Court will make further directions for the future management of the proceedings in addition to those made on 18 October. Moreover, the evidence filed already puts the Court in a position to determine some of the final relief.
[9]
Trial Management Directions
The Court can give some final relief immediately. This may assist the parties in their dealings with the ATO. Given the state of the pleadings and the evidence the Court has read, the Court is prepared to make declarations as to the existence of the trust, the trust property and Mr Jeffrey's right of indemnity out of trust assets. Liberty to apply for this purpose will be granted. The parties should indicate to my Associate if they want the Court to take this course. The relief to be granted would only be declaratory and would not include ordering the transfers at this stage.
As earlier indicated, a final hearing would be limited to the two remaining issues. By February next year the parties will know the quantum of the CGT liability as a result of the private ruling and should be directed to present to one another whatever (probably quite limited) evidence and submissions they seek to advance about any other trust liabilities, about the costs of Mr Jeffrey as trustee, and about the costs of the proceedings. The quantum issue will not be ready for final hearing until that has been done. Directions to that effect are made below. These can be varied by sending to my Associate proposed mutually agreed substitute orders for making in chambers.
The other remaining contentious issue is the indemnity security issue. This involves a choice which model is appropriate for securing, or satisfying Mr Jeffrey's liabilities out of trust assets: the Ludwigs' model of raising funding after the transfer, or Mr Jeffrey's model of setting aside the money in a fund before transfer. The Court has not yet been asked to determine this question on the motion, as distinct from at a final hearing. But as was indicated on 18 October probably with a little more necessary evidence and short submissions on either side, it could be determined by the Court on existing materials.
That issue, the indemnity security issue, is the real impediment to the transfer. The Court canvassed a number of possibilities with the parties in the course of argument, including creating a charge after transfer. But there was insufficient time or evidence on the motion to explore the viability of these other options to resolve the indemnity security issue. That is why directions were made on 18 October. It would be inappropriate for the Court to express a preference among any of these at this point, if the parties want the Court to decide this question.
This case calls for immediate mediation of both these remaining issues. Once the CGT liability is known there are many solutions that could be found at mediation. But if the parties do not wish the Court to decide the indemnity security issue, then both issues should go to mediation. If the parties do want the Court to decide that issue, then the quantum issue can go to mediation. The Court will order that the proceedings be referred to mediation under CPA, s 26.
The matter is suitable for a Court annexed mediation, an economical form of alternative dispute resolution. The Court will accordingly refer the proceedings for Court annexed mediation. But under the liberty to apply being granted the parties are at liberty to inform the Court that they wish to have the matter dealt with by an independent mediator. The mediation can take place either in December of this year or early in the new term in February 2020.
The approach being taken in these reasons represents a departure from the the directions that were given at the end of the hearing on 18 October 2019. On that occasion the parties were relieved (by Order 3) from putting on any further evidence in relation to costs incurred. But if the matter is to go to mediation, as now directed, some up to date evidence as to costs will be required on the quantum issue. So the Court will vacate Order 3 of the orders made on 18 October 2019. Orders 1 and 2 of the orders made on 18 October will still stand, because evidence of those matters will be required either for the mediation or for the Court to decide the indemnity security issue. And in light of the more intensive directions given with these reasons, including the option of the parties to have a Court decision or mediation on the indemnity security issue, Order 4 of the orders made on 18 October 2019 will be vacated.
If none of these suggestions resolve the matter, the proceedings will be adjourned into the Registrar's list for the fixing of a final hearing. The Court will set a date in mid-February for that listing before the Registrar.
[10]
Conclusion and Orders
Accordingly, the Court makes the following orders and directions:
1. The defendant/cross-claimant's motion for a stay filed on 13 August 2019 is dismissed but the Court notes it has used the motion as a basis for making the following further orders and directions.
2. Costs of the defendant/cross-claimant's motion for a stay filed 13 August 2019 are reserved.
3. Direct the parties to indicate to my Associate by 4pm on Monday, 11 November 2019 whether they want the Court to grant any part of the final relief identified in these reasons as immediately available on the existing evidence and pleadings.
4. Direct the parties to indicate to my Associate by 4pm on Wednesday, 13 November 2019, whether they want the Court to decide the question of an appropriate mechanism for securing or satisfying the defendant/cross-claimant's indemnity over trust assets in respect of accrued and contingent liabilities, and if so, to provide draft directions for that question to be determined.
5. Refer these proceedings to Court annexed mediation under Civil Procedure Act 2005, s 26, which mediation should take place before Friday, 7 February 2020.
6. List the proceedings before the Registrar in Equity on Tuesday, 11 February 2020 at 9am for the appointment of a hearing date.
7. Grant liberty to apply.
[11]
Amendments
15 November 2019 - Catchwords: typo of "PRACTICE"
15 November 2019 - [4]: first sentence, "one-half" to "one-third"
[44]: second last sentence, "they did" to "they did not"
05 March 2021 - [4]: line 4, "of" after "half"
[58]: line 12, possessive apostrophe, "proposal" not "proposed"
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Decision last updated: 05 March 2021