Perpetual Trustees Victoria Ltd v English

Judgment 1THE COURT: On 12 March 2010, the Court made orders in this matter ([2010] NSWCA 32) in the following terms: "1. Perpetual's appeal against the dismissal of its claim against Ms English be dismissed. 2. Perpetual pay Ms English's costs of the appeal. 3. Perpetual's appeal against the dismissal of its claim against Mr English be allowed. 4. Perpetual be granted leave to further amend its amended statement of claim to claim the relief against Mr English identified in the notice of appeal. 5. The further amended statement of claim be filed within 14 days. 6. Perpetual file within 14 days of these orders short minutes of order giving effect to the judgment to the extent that additional orders are required in consequence of the appeal being allowed. 7. If Ms English disputes the terms of the proposed short minutes of order: (a) Perpetual should file brief written submissions accompanying the short minutes of order supporting the terms of the orders it proposes; and (b) Ms English should file within 14 days of these orders alternative short minutes of order accompanied by brief written submissions supporting the terms of the orders she proposes. 8. Mr English pay the costs of Perpetual's appeal against dismissal of its claim against Mr English. 9. Perpetual, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951." 2The parties who participated in the appeal were Perpetual Trustees Victoria Ltd ("Perpetual") and Ms English. Neither Mr English nor his trustee in bankruptcy (the Official Trustee) appeared, though Mr English was a party and the Official Trustee was aware of the proceedings but declined to take part. 3On 30 November 2010, Allsop P made orders ([2010] NSWCA 327) that were agreed to by Perpetual and Ms English. These orders, as Allsop P's reasons of 30 November 2010 stated, had been submitted to the Court pursuant to Order 6 made on 12 March 2010, but had lain in the Registry. The last sentence of Allsop P's reasons of 30 November was: "There being consent I have power to make [the orders] under the Supreme Court Act 1970 , s 46(1)(a)." 4This was an error. , Mr English and his trustee in bankruptcy had not consented. The orders purported to be made on 30 November 2010 were: "1. A declaration that the Mortgage has full force and effect as against the interest of the first respondent in the property known as 36 Brisbane Road, Castle Hill and being the whole of the land comprised in folio identifier 4/13841 ( Property ) (as now vested in the Official Trustee) in respect of all moneys outstanding under the Loan Agreement and/or under the Mortgage and further interest, charges and costs payable thereunder. 2. An order that, if contracts for the sale of the Property by the second and third respondent are not exchanged by 15 June 2010, on terms that are satisfactory to the Appellant, then effective from 16 June 2010: (a) trustees for sale be appointed in respect of the Property under section 66G of the Conveyancing Act 1919 (NSW) and that the Property be vested in such Trustees, to be held by such trustees upon a statutory trust for sale under Division 6 of Part IV of the Conveyancing Act 1919 (NSW); (b) The appellant and the second and third respondent shall use their best endeavours to agree within 14 days upon the identity of the trustees referred to at 2(a) and failing agreement the proceedings shall be relisted for the appointment of trustees by the Court. (c) An order that the trustees' fees, expenses and legal costs be paid out of the proceeds of the sale. (d) An order that the trustees pay the net proceeds of the sale, after payment of the fees, expenses and legal costs referred to in order 2(c) above, to the appellant and the second respondent in equal shares. 3. Liberty for the parties or any trustee appointed, to restore the proceedings on 3 days notice to seek further orders." 5Perpetual and Ms English came back before the Court on 31 January 2011 wanting further and final orders, pursuant to an amended notice of motion dated 13 December 2010, completing the appointment of trustees for sale. In discussion on that occasion, Allsop P's error of November became apparent. He told the legal representative that there was some doubt as to the efficacy of the orders of 30 November. He also directed that Mr English and his trustee in bankruptcy be given notice of not only the then current application, but also notice of the orders of 30 November 2010, of the Court's view that they may be defective and that if they wished to put any submission on either matter they should do so within a reasonable time that Allsop P nominated. 6The further orders sought by the amended notice of motion were: "1. Pursuant to Order 2(b) of the Short Minutes of Order filed on 26 March 2010, and with the consent of the Appellant and the Second Respondent, the Court appoint Dennis Patrick Grogan and Lewis James Webb as trustees for sale of the property under section 66G of the Conveyancing Act 1919 ("the trustees"). 2. The trustees have possession of the property the subject of the proceedings. 3. The trustees have leave to issue a writ of possession in respect of the property. 4. The costs of this Notice of Motion be costs in the cause." 7We have dealt with the matter on the papers substantially on the basis of affidavit evidence filed, given the responses from Mr English and his trustee. 8The evidence reveals the following: (a) The Official Trustee in Bankruptcy through his solicitor clearly indicated in a letter dated 20 January 2011 that he had no interest in the orders proposed to be made. From the text of the letter it is clear that the Official Trustee saw himself as having no interest in orders of the kind made on 30 November and as proposed by the amended notice of motion. (b) On 2 February 2011, the solicitors for Ms English wrote to Mr English, solicitors for Mr English and the solicitor for the Official Trustee in the following terms: "...We advise that Mr Clifton of Counsel appeared before His Honour President Allsop on 31 January 2011 for the hearing of the Amended Notice of Motion filed 24 December 2011. There was no appearance for any other party. At the hearing on 31 January 2011, Mr Clifton moved on Order 1 of the Amended Notice of Motion (but not the remaining orders due to the service of the First Respondent with the Amended Notice of Motion on Thursday 27 January 2011) and read the affidavits of Dennis Patrick Grogan sworn 9 December 2010 and 31 January 2011, which affidavits became Exhibit 1 on the Amended Notice of Motion. The affidavit sworn 31 January 2011 was filed in Court with leave, and a copy is enclosed. President Allsop declined to make the orders in the Amended Notice of Motion and made the following orders:

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