Siamidis v Siamidis [2025] VSCA 230

[2025] VSC 228 (Delany J)

Siamidis v Siamidis [2025] VSCA 230 | Case summary | Zoe

[12]

Sale of properties

4.1 The Parties must cooperate with one another, take all steps, execute all documents and do all things necessary or desirable to effect the sale of:

(a) the following properties owned by the Superannuation Funds:

(i) 479 Lygon Street, East Brunswick, being the property more particularly described in Certificate of Title Volume 8055 Folio 072 (479 Lygon);

(ii) 481 Lygon Street, East Brunswick, being the property more particularly described in Certificate of Title Volume 8055 Folio 070 (481 Lygon);

(iii) 483 Lygon Street, East Brunswick, being the property more particularly described in Certificate of Title Volume 4928 Folio 464 (483 Lygon);

(iv) 169-173 St Georges Road, Fitzroy North, being the property more particularly described in Certificate of Title Volume 7608 Folio 032 (St Georges Road);

...

(vii) 635-637 Sydney Road, Brunswick, being the property more particularly described in Certificate of Title Volume 10142 Folio 512 (635-637 Sydney Road),

(together, the Superannuation Properties);

(b) the following properties held by partnerships or Trusts that are not Superannuation Funds:

...

(iv) Lot 1, 164 Kings Way, South Melbourne, being the property more particularly described in Certificate of Title Volume 10117 Folio 486 (Lot 1 Kings Way);

(v) Lot 2, 164 Kings Way, South Melbourne, being the property more particularly described in Certificate of Title Volume 10117 Folio 487 (Lot 2 Kings Way); and

(vi) 14 York Street, South Melbourne, being the property more particularly described in Certificate of Title Volume 10059 Folio 454 (York Street)

(together, the Sale Properties).

4.2 The parties agree that they will remove all personal items from the Sale Properties and the Superannuation Properties, as follows:

(a) York Street, within 30 days of the Execution Date;

(b) 635-637 Sydney Road, within 90 days of the Execution Date;

(c) St Georges Road, within 90 days of the Execution Date;

(d) 479 Lygon Street and 481 Lygon Street, within 120 days of the Execution Date;

...

and otherwise prior to the settlement of the sale of any property in clause 4.1 of this Deed.

[34]

The power in s 37(1) of the [Supreme Court Act 1986] to appoint a receiver is a power that may be exercised by the Court wherever it is 'just and convenient' to do so.

I do not accept Steve's submission that without being satisfied there is an imminent risk to property it is not open to make an order appointing receivers. I agree with the observations by Beach J in Australian Securities and Investments Commission v Hopkins,[12] made in the context of the equivalent statutory power in s 57 of the Federal Court of Australia Act 1976 (Cth) to appoint a receiver where it is 'just or convenient to do so' that:

The condition on the grant of the statutory power under s 57 is expressed in broad terms, being where it is "just or convenient so to do". It may be noted that the statutory power does not countenance a limitation on the exercise of the power or an implicit fetter based upon phraseology such as that the appointment of a receiver is a "drastic" remedy and the power should be exercised only in "extraordinary circumstances". That is not the phraseology of the statutory power that I am requested to exercise and nor is any such limitation consistent with the authority of this Court, whatever has been said by any State intermediate appellate court.

I also agree with the statement by French J, as his Honour then was, in University of Western Australia v Gray (No 6)[13] to which Beach J referred in ASIC v Hopkins that_:_

The power of the Court to appoint a receiver is statutory. It has its origins, however, as an equitable remedy. An order in the nature of an equitable remedy can be made under s 23 of the Act. The class of circumstances in which such power may be exercised is not closed. Nor are the purposes for which a receiver may be appointed and the powers and conditions attaching to such an appointment. There may be many circumstances of considerable diversity which would warrant such an order and it is important that the discretion not be unnecessarily confined by any particular line of cases to which it has been applied.

I do not accept the submission by Steve, made by reference to statements by the Full Court in Bond Brewing, that in all cases where there is an application to appoint a receiver the power to do so involves the grant of an 'extraordinary and drastic remedy' which 'should be exercised with care and caution' and that receivership is a drastic course allowed only under pressing circumstances and granted only with reluctance and caution 'and only where the court is satisfied there is imminent dangers of loss if it is not exercised'.[14]

[36]

This case involves an application by one group of parties to a settlement deed intended to put an end to four years of bitter litigation between family members for the appointment of a receiver. The appointment is sought in the context of a complete breakdown in the relationship between the family members, evidence of a large number of breaches of the terms of the settlement deed by the defendants and of ongoing disputes concerning the sale of properties is the subject of the settlement deed by CBRE to whose appointments Steve had previously agreed.

As Warren J noted by reference to earlier authorities and texts in Martyniuk, a receivership is equitable in nature, the remedy is flexible and can be moulded to the needs of the situation. In this case what is sought is the appointment of receivers to ensure the timely performance of the sale of real properties for which the settlement deed provides after a period of more than six months of recurring breaches and delays occasioned by the conduct of the defendants and the failure of the brothers to be able to act cooperatively and to resolve their differences when disputes arose.

The correct approach to the present application is to apply the language of s 37(1) [of the Supreme Court Act 1986], to consider whether it is 'just and convenient' to appoint receivers to sell the [Properties] having regard to the court's obligation to give effect to the overarching purpose in s 8(1) of the CPA. The statutory obligation in s 8(1) of the CPA is an obligation that was not in existence at the time of the decision of the Full Court in Bond Brewing or at the time of the decisions of Warren J in Martyniuk and [Yunghanns v Candoora No 19 Pty Ltd (No 2)[19]]. As French J observed in University of Western Australia v Gray (No 6),[20] it is important that the discretion to appoint a receiver not be unnecessarily confined by any particular line of cases in which it has been applied.

I nonetheless proceed on the basis that it is important to approach an application such as the present with caution. I accept that a proper case, by which I mean as Warren J referred in Martyniuk, a strong case for the appointment must be made out.[21]

[38]

(a) First, Chris and Kasiani had a strong prima facie case. The terms of the Deed were clear and credit was unlikely to be material to the outcome at trial.[22]

(b) Second, there had been a total breakdown in the relationship between the parties and they were unlikely to be able to cooperate to carry out their obligations under the Deed.[23]

(c) Third, past breaches by Steve and to a lesser extent Mary had resulted in significant delays in the implementation of the Deed. It was highly desirable and in the interests of all parties to minimise the risk of further delays and opportunities for disruption and disputation. The appointment of receivers was likely to promote such an outcome, and was necessary to ensure that previous flouting and ignoring of contractual obligations by Steve and Mary was not continued or repeated.[24]

(d) Fourth, Steve's continued insistence that he was entitled to unilaterally withdraw his consent to the appointment of CBRE to sell the Group A Properties created an ongoing impediment to the performance of the Deed. Without the appointment of a receiver, that unresolved issue would hang over any steps taken by CBRE or any other agent appointed to sell any of the Properties, with the potential to severely undermine the timely and effective performance of obligations under the Deed.[25]

(e) Fifth, unless receivers were appointed to achieve a timely sale program, the Properties over which NAB holds security were in jeopardy of sale by the mortgagee. The NAB Facility had been extended only until 30 June 2025, in the context of the proposed sale program. The NAB Facility of itself meant that it was just and convenient to appoint independent receivers to sell the real property assets, to ensure that creditors were paid and that assets were not put in jeopardy.[26]

(f) Sixth, the judge did not accept that the appointment of receivers would have the consequence that asset sales would be conducted at a lower value. Rather, he anticipated that receivers when appointed would act in a manner consonant with their duties.[27]

(g) Seventh, there was merit in the submission that the costs of the receivers, which they had agreed to cap, could well be less than the legal costs of ongoing disputes between the parties if left to themselves. It was reasonable to anticipate that the appointment of receivers would not result in increased costs, and would assist to put an end to the disputes.[28]

(h) Eighth, the Properties to be sold are investment properties, which the parties have already agreed are to be sold. Appointing receivers does not carry the risk of irreparable injury to any party.[29]

(i) Ninth, to order the appointment of receivers would be consistent with the obligation in s 8(1) of the Civil Procedure Act 2010 to give effect to the overarching purpose:

When family members have engaged in heavily contested litigation over a number of years and had been able to reach a comprehensive and detailed agreement to resolve their dispute on commercial terms, it is important that the court do what it can, consistent with the proper exercise of the power in s 37(1) of the [Supreme Court Act 1986] to assist in ensuring the efficient and effective implementation and performance of the settlement deed as agreed by the parties. By making orders for their appointment, the receivers can go ahead and sell the Properties as under the settlement deed the parties agreed is to take place. If the parties wish to pursue the litigation the subject of the proceeding they will be able to do so, but the realisation of the real property can and will continue in the meantime.[30]

[40]

Pursuant to s 37 of the Supreme Court Act 1986 (Vic) and r 39.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('the Rules') Mr Lindsay Bainbridge and Andrew Reginald Yeo of Pitcher Partners be appointed as joint and several receivers ('Receivers'), without security, over the following properties:

(a) 479 Lygon Street, East Brunswick, being the property more particularly described in Certificate of Title Volume 8055 Folio 072 ('479 Lygon Street');

(b) 481 Lygon Street, East Brunswick, being the property more particularly described in Certificate of Title Volume 8055 Folio 070 ('481 Lygon Street');

(c) 483 Lygon Street, East Brunswick, being the property more particularly described in Certificate of Title Volume 4928 Folio 464 ('483 Lygon Street')

(d) 169-173 St Georges Road, Fitzroy North, being the property more particularly described in Certificate of Title Volume 7608 Folio 032 ('St Georges Road');

(e) 14 York Street, South Melbourne, being the property more particularly described in Certificate of Title Volume 10059 Folio 454 ('York Street');

(f) 635-637 Sydney Road, Brunswick, being the property more particularly described in Certificate of Title Volume 10142 Folio 512 ('635 Sydney Road');

(g) Lot 1, 164 King Way, South Melbourne, being the property more particularly described in Certificate of Title Volume 10117 Folio 486 ('Lot 1 Kings Way'); and

(h) Lot 2, 164 King Way, South Melbourne, being the property more particularly described in Certificate of Title Volume 10117 Folio 487 ('Lot 2 Kings Way'), ('the Properties'),

with:

(i) all of the powers provided in s 420 of the Corporations Act 2001 (Cth); and

(j) the power to remove, dispose and/or otherwise convert all chattels and personal property, including vehicles, that remain at any of the Properties by 12 May 2025 in accordance with s 420A of the Corporations Act 2001 (Cth),

for the purpose of taking all steps, execut[ing] all documents and doing all things necessary to sell those properties ('Appointment').

[44]

Steve contended that he would suffer substantial prejudice if the order was not set aside, because the effect of the interlocutory relief appointing receivers to the Properties for the purposes of their sale is akin to final relief in the proceeding. He submitted that the injustice that would result from allowing the orders to stand was manifest. The specific injustice flowing from the orders was that the proprietors of the Properties would be prevented from carrying out the sale process in accordance with the Deed, which gave them some control and oversight of the process. Further injustice would result from the additional costs of the receivers. Steve was also concerned that the sale of all the Properties at the same time might diminish the price achieved for each of them, given that some of the Properties were located in close proximity and there was a risk that the sales would be perceived as distressed sales.
In support of this submission, Steve referred to the letter of engagement dated 1 December 2024 setting out the receivers' fee proposal, scope of services, and approach. Based on that letter, Steve said it appeared that the receivers intended to sell all of the Properties at the same time, with an appreciable risk that the Properties would be sold at a lower value than if sold through the existing arrangements under the Deed, which allowed the parties some flexibility in the sequencing of sales. Steve said that he and the other parties would suffer financial prejudice if that risk materialised. He observed that, if the receivers sold any of the Properties, those transactions could not later be unwound.
Chris and Kasiani argued that leave to appeal should be refused because no substantial injustice arises from the ruling. They said that, in circumstances where the parties had already agreed to sell the Properties, losing control of the method of sale was not relevantly an injustice. They disputed that the appointment of receivers might cause the Properties to be sold for a lower price or with higher overall sale costs. Further and in any event, they pointed out that Chris has given the usual undertaking as to damages.
Separately, the receivers filed an affidavit of Lindsay Bainbridge dated 22 August 2025, made to inform the parties and the Court of the current status of the receivership and the further works required prior to the sale of the Properties. Among other things, Mr Bainbridge's affidavit outlined the steps the receivers had taken towards selling the Properties in the five days between their appointment and the orders being stayed. The affidavit also set out the proposed sale program for the Properties, formulated by the receivers with their vendor advocate and property recovery adviser. Five of the Properties are vacant and four of them require cleaning and repairs before they can be marketed for sale. The remaining three properties are tenanted and have been assessed as ready for sale. Mr Bainbridge deposed in respect of each of the Properties that it would not be marketed as a receiver or distressed sale.

[46]

In the Deed, the parties agreed to sell the Properties at the times and by the methods provided in the Deed. In respect of each of the Group A Properties, the sale was to be 'immediate' and in accordance with the recommendation of the relevant real estate agent, unless otherwise agreed between Chris and Steve in writing. The Kings Way Properties were to be sold following completion of the rent review process, as recommended by the real estate agent appointed under cl 10 of the Deed, unless otherwise agreed. Chris and Steve agree that the rent review process was completed on 28 October 2024.
If the orders remain in place pending trial, the Properties will be sold by the receivers rather than by the agreed sale process set out in the Deed. The only material differences between the two sale processes are that, under the orders, the parties are no longer able to agree not to adopt the recommendations of the relevant agent as to the sale, and will incur the receivers' fees on top of the other sale costs.
We are not satisfied that these differences would work any substantial injustice to Steve, for four reasons.
First, there has been total breakdown in the relationship between the parties and they are not likely to be able to cooperate to carry out their obligations under the Deed.[35] There is little prospect that they will agree on an agent, where they are in dispute about whether Steve can withdraw his consent to the appointment of CBRE, and there is no likelihood that they will agree on an alternative method of sale. The control over the sale process retained under the Deed is slight, given the parties' general inability to agree.
Second, the evidence does not support Steve's concern that sale of the Properties by the receivers might achieve a lower price than sale in accordance with the Deed. The receivers have duties to take reasonable care to sell the Properties for not less than their market value,[36] and can reasonably be expected to act consonantly with those duties.[37] The sale program proposed in Mr Bainbridge's recent affidavit is consistent with that outcome, including his reassurance that none of the Properties will be marketed as a receiver or distressed sale.
Third, it is unlikely that the overall sale costs will increase if the receivers sell the Properties. Indeed, the additional fees to be paid to the receivers may well be less than the legal costs of ongoing disputation, if the parties were left to themselves to sell the Properties by the process agreed in the Deed.[38]
Fourth, in the unlikely event that sale of the Properties by the receivers causes Steve to suffer some loss, he has the protection of the undertaking as to damages given by Chris.
Leave to appeal should be refused on the basis that the orders will not work any substantial injustice to Steve. For completeness, we will go on to consider the two grounds on which Steve says the orders should be set aside.

[49]

In Steve's submission, had the judge correctly applied these principles, he would have dismissed the application for the appointment of receivers. He said that the judge made no finding that there was any need to protect or preserve the Group A Properties for the benefit of persons with an interest in them. Nor was there a finding, or evidence, that those properties were at risk of any loss, far less in imminent danger of loss. Absent those findings, the judge erred in appointing receivers to those properties. In respect of the Kings Way Properties and York Street, Steve said that the evidence allowed only speculation as to the possible future risk to those properties, which could not be described as imminent or urgent.
Steve further submitted that, had the judge applied the principle that appointment of receivers is a remedy of last resort, he ought properly to have considered alternative, and less drastic, relief directed to addressing the specific breaches of the Deed alleged.
Chris and Kasiani responded that the judge was not confined to exercising the power in s 37 only for the purpose of the protection and preservation of property. While that is a general ground for the appointment of a receiver, a receiver may also be appointed in other circumstances, including where misconduct, waste, or improper management of assets is shown, or where a trust is in a state of disarray.[43] They submitted that the class of cases in which a receiver could be appointed was not closed, and that the Court's discretion should not be unnecessarily confined by any particular line of cases in which the power has been exercised.[44]
More particularly, Chris and Kasiani contended that the Court's discretion to appoint a receiver is not confined to circumstances where there is an imminent danger of loss. They pointed out that the facts of Bond Brewing involved extraordinary circumstances, including that the application to appoint a receiver was made ex parte. They noted that the Full Court in Bond Brewing had countenanced that different considerations would be relevant, depending on the potential consequences to the defendant,[45] and submitted that Bond Brewing did not govern all circumstances in which a receiver could be appointed under s 37 of the Supreme Court Act 1986.
Further, Chris and Kasiani said that Steve had not identified what alternative, less drastic remedy would be appropriate in the circumstances. They pointed out that Steve had submitted before the judge that he should be very reluctant to order a mandatory injunction, given the possibility of contempt proceedings for non-compliance.
In Chris and Kasiani's submission, the judge was correct to find that it was just and convenient to order the appointment of receivers to ensure the timely sale of the Properties pursuant to the Deed. They endorsed the judge's finding that there had been a total breakdown in the relationship between family members, such that they were unlikely to be able to cooperate to carry out their obligations under the Deed.[46] They also emphasised the evidence of financial risk to the parties, including potential default of the NAB Facility secured by York Street and the Kings Way Properties. In those circumstances, Chris and Kasiani submitted, the appointment of receivers was just and convenient and no lesser remedy was appropriate.

[62]

As far as we can ascertain, Bond Brewing is the most recent appellate consideration of the principles governing the power to appoint a receiver.[62] Numerous single judge decisions have acknowledged the gravity of a receivership order, while also emphasising the breadth of the power and the flexibility of the remedy.[63] Receivers have been appointed in a wide variety of cases, each dependent on its own facts, from which it is difficult to extract general principles.[64]
Steve contended that there are three established principles concerning the appointment of receivers, each of which he said the judge failed to apply.
First, Steve said that the basis for the appointment of a receiver was 'ultimately in every case the protection or preservation of property for the benefit of persons who have an interest in it'.[65] However, the judge had made no finding that there was any need to protect or preserve the Group A Properties, for example because of waste or misconduct of the trusts.
The judge appointed the receivers to protect and preserve the interests of the parties in the performance of the Deed, under which time is of the essence. Although the parties had agreed to the expeditious sale of the Properties, and a process for doing so, the complete breakdown in their relationship and Steve and Mary's 'flouting and ignoring of their contractual obligations' had impeded the implementation of the Deed. The notion that a receiver is appointed to protect or preserve property does not mean that the receiver must hold the property so as to preserve it intact. It is commonplace to arm a receiver with the power of sale, and it may be, as it is in this case, that the critical interest of the parties is not retaining property but realising its value by sale and then distributing the proceeds. In that context, deferring the sale was inconsistent with the bargain in the Deed.
It was therefore not to the point that the judge made no findings that the trusts were being mismanaged, that five of the Properties were vacant, or that delay was affecting the value of the Properties in a way that amounted to waste. Preservation and protection of the Properties was not the judge's focus. Rather, the orders were directed to preserving and protecting the benefit of the parties' agreement set out in the Deed.
Next, Steve submitted that Bond Brewing established, as a binding principle, that the drastic step of appointing a receiver on an interlocutory basis ought only be taken where the court is satisfied of imminent danger of loss.[66] He submitted that the judge wrongly limited this aspect of the reasoning in Bond Brewing to the particular factual circumstances of that case. The argument concerned the judge's statements that he did not accept Steve's submissions that, in all cases, the appointment of a receiver is a drastic remedy that could only be ordered where the court is satisfied of imminent danger of loss.[67]
We do not agree that Bond Brewing stands for the proposition that, in every case, the appointment of a receiver is a drastic remedy. In every case, it will involve the loss of control of the property and, in itself, this is a significant matter, calling for caution. Beyond that, the practical significance of the order will depend on the context. It certainly was a drastic remedy in Bond Brewing, due to the manner in which the receivers were appointed, the terms of their appointment, the undertakings and assets of which they took control, and the dispossession of the owner.[68] In a different case, the impact may be more benign. An example given in Bond Brewing was the appointment of a receiver to protect property of which no-one is in possession and where no-one is ousted by the appointment. In such a case, 'probably no great harm will be done'.[69]
In the circumstances of this case, the practical effect of the appointment of receivers to sell investment properties that the parties had already agreed to sell was not at all drastic. None of the parties was in possession, and no-one was ousted from any of the Properties. The judge was not persuaded that appointing receivers would result in the Properties being sold for lower value or at higher cost to the parties. There was no risk of irreparable injury to any party.
We also do not agree that Bond Brewing established, as a general principle, that a receiver can only ever be appointed where there is 'imminent danger of loss'. That phrase appears in a summary of a passage in an American reference text, in the middle of a lengthy discussion of the caution to be exercised on an ex parte application for the appointment of a receiver.[70] It did not feature in the Full Court's later conclusions about the principles to be applied when all interested parties have had an opportunity to be heard.[71] Bond Brewing is strong authority for the proposition that an order appointing a receiver should not be made without notice except in a case of emergency or 'imperious necessity'. When an application is made on notice, the balance of convenience between the parties can be more fully considered.
In any event, there was ample evidence in this case of imminent danger of loss of the benefit of the Deed, being the timely sale of the Properties and distribution of the proceeds in the manner agreed. The recurring pattern of breaches by Steve had significantly delayed the implementation of the Deed, and had the potential to continue to do so.
In addition, the judge found that the Kings Way Properties and York Street, which were security for the $15.25 million NAB Facility due to expire on 30 June 2025, were in jeopardy of sale by the mortgagee if a timely sale program could not be achieved.[72] Steve submitted that the evidence before the judge allowed only speculation as to the possible future risk to these properties, which could not be described as imminent or urgent.
A review of the evidence regarding the NAB Facility establishes the following:

At a glance

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Before

Source

Judgment (147 paragraphs)

Siamidis v Siamidis [2025] VSCA 230 (19 September 2025)

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Legislation Cited (4)

Cases Cited (4)