HIS HONOUR: The particular question before the Court today is the review of a Registrar's decision as to the amount of remuneration to be paid to trustees for sale appointed by the Court. Unfortunately, the application today is only a very small fraction indeed of the litigation that underlies this particular question.
So far, the litigation has involved two separate claims by the plaintiff, Mr Rix, in relation to his interest in a property at Rosebery. On 24 July 2009, Forster J gave judgment (Rix v Mahony [2009] NSWSC 675) in which he concluded, in substance, that Mr Rix was entitled to a 25% beneficial interest in that property.
On 25 August 2009, the Court made orders to give effect to the reasons of Forster J. One of the orders made was a declaration that the first defendant, Ms Mahony, (the daughter of Mr Rix), who was a three-quarter proprietor of the property in question, held a one-quarter interest in that property (that is to say, a third of her legal interest) on trust for Mr Rix.
The Court also ordered that two solicitors, Messrs Brown and Di Donato, be appointed trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW).
There has been no appeal from the orders made by the Court pursuant to the judgment of Forster J, to which I have referred, although I should have said that on the day his Honour made those orders he gave supplementary reasons to which it is not necessary to refer.
Mr Rix commenced separate proceedings. They were heard by Bergin CJ in Eq. Her Honour gave judgment on 2 November 2011 (Rix v Mahony [2011] NSWSC 1308. It seems that in those proceedings Mr Rix sought an order that he should have one half and not one quarter of the proceeds of sale of the property (which by that time had been sold).
Bergin CJ in Eq concluded that Mr Rix had not made out his claim for a 50% share in the proceeds of sale. However, there being no issue otherwise, her Honour concluded and declared that Mr Rix was entitled to 25% of the gross proceeds of sale as adjusted, and to an order for account.
Mr Rix challenged her Honour's conclusion. The Court of Appeal gave two judgments (Rix v Mahony [2012] NSWCA 241 and Rix v Mahony (No 2) [2012] NSWCA 332). The first judgment considered, and rejected, an application by Mr Rix to adduce further evidence. The second, substantive, judgment considered that the appeal should be dismissed.
Mr Rix sought special leave to appeal. On 10 April 2013 the High Court dismissed the application (Rix v Mahony & Anor [2013] HCASL 47).
As I have indicated, the trustees, having completed their duties, sought an order for their remuneration to be paid. That application was dealt with by Assistant Registrar Musgrave. The matter had been listed before him on 29 October 2014. Although Mr Rix had been given notice of that hearing, he did not appear. The Registrar asked the parties who did appear whether they were content for him to decide the application "on the papers". Since they were, that is precisely what he did.
The Registrar's decision, given on 20 November 2014, was that the trustees were entitled to be paid the remuneration sought by them respectively. That was $44,754.34 claimed by Mr Di Donato and $39,341.78 claimed by Mr Brown.
Mr Rix has explained the reasons why he was not present before the Court on 29 October 2014. In those circumstances, and with the acquiescence of the trustees and the defendants, I took the view that the appropriate course was to treat this as an application for review pursuant to UCPR r 49.19 rather than an application to set aside the Registrar's order pursuant to UCPR r 36.16.
The formal complaint made by Mr Rix is that his objections were not put before or considered by the Registrar. Mr Rix pointed to a passage in the Registrar's reasons (para 5) where the Registrar said:
"No objection has been received to the application, although I note that Mr Rix was given the opportunity to lodge objections with me but has not done so."
Mr Rix points out, correctly, that he had written a letter to the trustees' solicitors asking them to forward to the court a letter written by him to the Registrar. In that letter Mr Rix said (among many irrelevant things):
"In my opinion I believe that the trustees' fees are excessive and should be assessed by an independent party. The property only sold for $750,000, with fees totalling $103,993.37, made up of $19,897.25 agent's fees and to date $84,096.12 trustees' fees."
That was the extent of the material submitted by Mr Rix in support of his objection.
I do not read Mr Rix's letter, to which I have referred, as objecting to assessment of remuneration by the Registrar. His claim was that the fees "should be assessed by an independent party". The Registrar could not be described as anything other than independent. The Registrar did, indeed, assess the remuneration claimed.
Thus, whilst as a matter of strict language what the Registrar said at para 5 of his reasons was incorrect, it is clear that he did have before him the limited objection made by Mr Rix. It is also clear that the Registrar did give consideration to the seemingly very large amount of the fees. He referred to "the unusual history of the matter" and "the substantial amount of remuneration claimed" (see para 3 of his reasons). The Registrar then looked to the very detailed reasons given by the trustees as to why that surprisingly substantial amount of remuneration was claimed.
The trustees' justification for their claims was explained by them in affidavits. Mr Di Donato swore two affidavits, one of 6 May 2014 and one of 20 August 2014. Mr Brown swore one affidavit on 6 May 2014.
Mr Di Donato's first affidavit is the one that set out, in very great detail, the work done by him and by Mr Brown in relation to the sale. Mr Brown's affidavit, in effect, confirmed, so far as he could from his own knowledge, what Mr Di Donato had said.
Mr Di Donato's second affidavit proved the excessive volume of correspondence that had passed between the solicitors for the parties, bearing on the question of sale.
All of the material referred to in or annexed to those three affidavits was material which, regardless of its ultimate relevance, the trustees were required to consider as part of the task of executing their duties under the Court's orders of 25 August 2009. It is hardly surprising, in those circumstances, that they spent a very large amount of time on the matter, as is evident from their detailed bills of costs which were attached to the first affidavit sworn by Mr Di Donato.
It is clearly established that an application for review of a Registrar's decision is not a "review" in the nature of an appeal by way of re-hearing. The decision of the Court of Appeal in Tomko v Palasty (No 2) (2007) 71 NSWLR 61 makes that point. It makes the further points that there is no necessary requirement for demonstration of error, and that the review need not be limited to reconsideration of the material before the Registrar.
In that case, Hodgson JA (who concurred in the outcome) made some additional observations as to the task undertaken by the reviewing court. His Honour said at [6] to [10] that the person seeking the review has the task of persuading the reviewing court that it is in the interest of justice to set aside or vary the Registrar's order. Thus, his Honour said, there is a discretion whether to intervene at all. His Honour said that where the decision is one of practice or procedure, the Court will normally require some strong reason to intervene.
Conversely, his Honour said, where the decision finalises the matter or has a substantial impact on rights, the Court may be more likely to intervene.
The principles stated by the Court (including Hodgson JA) in Tomko were confirmed in Dae Boong International Co Pty Limited v Gray [2009] NSWCA 11.
In considering whether the interests of justice suggest that the decision of the Registrar should be set aside or varied, I must take into account the undoubted fact that, at least in principle, the decision will have an impact on the quantification of rights, because the remuneration payable to the trustees is something to be deducted from the proceeds of sale before they account to the beneficiaries for their respective entitlements. Thus, this is not something such as (for example) an order or direction made by a Registrar as to a procedural matter such as directions for the filing of evidence.
However, I am still left with the position that the evidence before the Registrar was compelling evidence of the amount of time and effort that the trustees were required to expend to execute their trust. I must also take into account that there is no evidence of any probative value to the effect that the time spent by the trustees was excessive, or that the hourly rates claimed by them were excessive, or that the disbursements were excessive, or that any other item of their claimed costs and disbursements is excessive. There is only the bald, conclusionary and utterly unsatisfactory submission by Mr Rix that he believed that the fees are excessive.
The submissions put by Mr Rix (who represented himself before me) did not really address this fundamental problem. In the main part they addressed matters that are totally irrelevant. One was a suggestion of conflict of interest on the part of one of the trustees, Mr Brown.
Since the material said to ground that conflict had been considered by Forster J in his Honour's supplementary reasons of 25 August 2009, and since his Honour then made the orders appointing Messrs Di Donato and Brown, that claimed conflict (even if it were demonstrated, and in my view it was not demonstrated) goes nowhere.
Next, Mr Rix made scandalous and utterly unsubstantiated allegations of clandestine or wrong arrangements made which had the effect of perverting the course of justice. As well, he said that if Forster J had been given the full facts, the outcome would have been totally different. Even if there were any evidence to support those submissions (and there was not), they could have no impact where the Court's orders were made and where there has been no appeal nor, indeed, an application to set them aside.
Next, Mr Rix sought to canvass the history of litigation that had been dealt with by Bergin CJ in Eq, in particular the merits of her Honour's decision. Again, in circumstances where every possible avenue of appeal from her Honour's final orders has been exhausted, that can go nowhere.
However, what the submissions put did demonstrate was that the task faced by the trustees was difficult and one made more difficult (and I have no doubt more expensive) by reason of the attitude taken by Mr Rix.
If it is necessary for Mr Rix to show some reason for the Court to intervene, then it is enough to say that he has not done so. But, in case that is wrong, and in any event recognising that Mr Rix has sought to represent himself, I should say, that having reviewed the material in support of the claims for commission, I am affirmatively satisfied that the amounts claimed were justified and should be paid.
In short, going to the merits of the application, I am persuaded, as apparently the Registrar was, that the trustees have justified in full their entitlement to the remuneration sought.
Accordingly, I order that the application for review of the Registrar's decision made by the plaintiff's notice of motion filed on 27 November 2014 be dismissed.
[2]
SUBMISSIONS RE COSTS
I order the plaintiff to pay the trustees' costs of the application to review the Registrar's decision. I assess those costs in the sum of $1,650 inclusive of GST. The trustees are at liberty to deduct the amount of costs so payable from any amount payable by them to Mr Rix in respect of his one-quarter interest in the proceeds of sale. The trustees are further at liberty to pay the net value of that interest into Court if so advised.
[3]
Amendments
03 March 2015 - Lowercase party names in title.
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Decision last updated: 03 March 2015