STEVENS -v- WRIGHT [2021] WASC 36 (17 February 2021)

(e) whether the plaintiff is entitled to judgment on admissions made by the defendant;

(f) whether the plaintiff is entitled to summary judgment against the defendant on the plaintiff's claim for ejectment; and

1. As the plaintiff seeks that judgment be entered against the defendant on admissions made by the defendant, it is necessary to set out the parties' pleaded cases. I have not limited my description in this part to those that might be described as key admissions as it is necessary that they be understood in context.
2. Unless otherwise stated, the following facts are uncontroversial, having been pleaded by the plaintiff in the statement of claim indorsed on the writ of summons filed on 8 January 2020 and admitted by the defendant in his defence filed on 2 April 2020. To the extent that the facts pleaded by the plaintiff are not admitted or denied by the defendant, I record the same. I use first names of family members in this part and then where convenient in the remainder of these reasons. I do so for clarity and no disrespect is intended.
3. The plaintiff, Simon, is the son of the late Margaret Helen Wright. Margaret died on 15 August 2012 and Simon is the executor of her estate.
4. The defendant, Raymond, was Margaret's second husband and together they resided at 71 Emerald Court, Singleton (the Property). Margaret and Raymond were the registered proprietors of the Property as tenants in common in equal shares. Raymond survived Margaret.
5. Margaret had two children from her first marriage, Simon and Grant. Grant survived his mother but died in December 2012. Grant is survived by his wife, Tracey, and three children.
6. Margaret made a will dated 30 March 2007. Probate of the will was granted on 27 November 2012 and Simon was appointed executor, in accordance with the terms of the will.
7. The will provided that Tracey would receive $30,000 and Margaret's jewellery. The residue was left to Simon and Grant in equal shares.
8. By a proceeding commenced in this court in 2014, known as CIV 1443 of 2014, Simon sought orders to compel sale of the Property pursuant to the Property Law Act 1969 (WA) s 126. Raymond was the defendant to that proceeding.
9. By a deed of family arrangement dated 13 November 2014 (Deed), the proceeding was settled. Simon pleads and Raymond admits that by the Deed, Raymond was entitled to occupy the Property until the earlier of:

1. Simon also pleads that by the Deed, the proceeding was also settled on the basis that on the occurrence of the earlier of Raymond's death and 9 May 2019:

(b) the net proceeds of the sale after discharge of the Commonwealth Bank Viridian Line of Credit Account debt was to be divided equally between Raymond and Simon;

(c) Raymond's half share of the Bank debt was to be paid from Raymond's interest in the net proceeds of the sale of the Property.

1. Raymond does not admit this plea, saying instead that he will refer to the Deed at trial for its full terms and effect.
2. Simon pleads that he and Raymond are co‑owners of the Property, which plea is admitted.
3. Simon pleads that he has requested that Raymond agree to a sale of the Property. The following particulars are provided in relation to the requested plea:

(a) Such request was made by the Plaintiff's solicitor's correspondence dated 3 May 2019 addressed to the First Defendant at the Property and left at the Property by a process server.

(b) Service of further correspondence to the same effect dated 20 May 2019 was attempted on 5 occasions by a process server, who on each occasion left a calling card at the Property.

1. As to this plea, Raymond admits that his solicitors are in possession of a letter dated 3 May 2019 issued by Simon's solicitors to him seeking agreement from him on terms for the sale of the Property, and says that he will rely on the terms of the letter at trial for its full terms and effect. As to the remainder of the plea, Raymond says that he does not know and therefore does not admit the same.
2. Simon pleads that his solicitors were unable to effect personal service of the request on Raymond, and caused a copy of the correspondence to be left at the Property. He also pleads that Raymond received a copy of the correspondence left at the Property. In response, Raymond repeats his plea summarised at [20] above and otherwise says that he does not know and therefore does not admit this plea.
3. Simon pleads that he is entitled to an order for the sale of the Property.
4. In response, Raymond says that he:

(a) admits that the Deed sets out an agreement for the Property to be sold upon the conclusion of the Sole Occupancy Period (as defined in the Deed);

(b) admits that the Sole Occupancy Period concluded on 9 May 2019; and

(c) admits that following 9 May 2019, Simon and Raymond are obligated by the Deed to sell the Property,

and otherwise does not admit that Simon is entitled to an order for the sale of the Property.

1. Simon pleads that by reason of Raymond's occupation of the whole of the Property for the period 9 May 2019 to date, Raymond is liable to pay to Simon an occupational rent or fee, being one-half of the market rental value for the Property for that period. Raymond denies this plea.
2. Simon pleads that by reason of Margaret and Raymond having been the registered proprietors of the Property as tenants in common in equal shares at the time of Margaret's death, Simon is with Raymond entitled to occupy the Property. Raymond denies this plea.
3. Simon pleads that Raymond has denied Simon access to the Property. Raymond admits that he is currently the sole occupant of the Property and that he does not wish for Simon to occupy the Property together with him pending its sale, and otherwise does not admit that he has denied Simon access to the Property.
4. Simon pleads that by reason of such ouster, he is entitled to an order for ejectment of Raymond from the Property. Raymond denies this plea.
5. In summary, Simon seeks orders that the Property be sold free of encumbrances; that he be given conduct of the sale and for orders which would facilitate the same; that Raymond pay occupational rent for the Property from 10 May 2019 to date; and that Raymond be ejected from the Property.
6. In response, Raymond says that the court should make an order that the Property be sold free from encumbrances. However, he says that Simon is not entitled to orders giving Simon conduct of the sale, compelling the payment of occupational rent or ejecting him from the Property.
7. Raymond presses for orders that contemplate the parties jointly controlling the sale of the Property and that he continue to occupy the Premises pending sale.

The application and relief sought by the plaintiff

1. By the chamber summons, the plaintiff seeks orders that largely mirror the relief pressed in the statement of claim. The orders are reproduced at Schedule A to these reasons.
2. By the chamber summons, the plaintiff presses for the exercise of the court's power to order judgment on admissions and to order summary judgment. He does not seek that the powers be exercised in the alternative, but together.
3. The plaintiff says that he is entitled to judgment and an order for the sale of the Property pursuant to the RSC O 30 r 3(1), arising from the defendant's admission that at the expiry of the Sole Occupancy Period (as defined in the Deed), the Property is to be sold. That is, he seeks an order in terms of order 1 of the chamber summons.
4. Further, he says that he is entitled to orders pursuant to the RSC O 30 r 3(1) which would give him control of the sale process. That is, that he is entitled to orders in terms of proposed order 2(a) to (j) of the chamber summons, which he says are orders that may be made in the exercise of the court's discretion.
5. The plaintiff further says that he is entitled to summary judgment in the proceeding pursuant to the RSC O 14 r 1, entitling him to an order that the defendant vacate the Property and an order compelling payment of an occupation fee.
6. In this regard, the plaintiff says that the defendant by his defence admits that he is the sole occupant of the Property and pleads that he '...does not wish for the plaintiff to occupy the Property with the defendant pending its sale.'[1] The plaintiff says that the defence, taken with the plaintiff's affidavit evidence, establishes that the plaintiff has been excluded from possession of the Property, and that this exclusion has been wrongful.
7. It is submitted that this conclusion entitles the plaintiff to orders for vacant possession of the Property and for an occupation fee. While the plaintiff says that he is entitled to an order that the defendant pay occupational rent for the Property from 10 May 2019, summary judgment is not pressed in respect of the occupation fee. That is, it is submitted on behalf of the plaintiff that he is entitled to orders for the sale of the Property and orders for vacant possession of the Property in order to facilitate the sale; but that the action otherwise continue with respect to the occupation fee and any other relief that might arise.[2]

1. In summary, the defendant responds to the application as follows.[3]
   1. The only part of the plaintiff's application to which Order 30 rule 3 of the Rules can apply is the relief claimed in paragraph 1 of the plaintiff's application, namely an order for the sale of the property at 71 Emerald Court, Singleton, Western Australia (Property).
   2. No utility will be served by the Court making an order in terms of paragraph 1 of the plaintiff's application unless and until the Court has determined the plaintiff's other claims.
   3. If leave to apply out of time is granted, the balance of the plaintiff's application, reliant on Order 14 of the Rules, should be dismissed on the bases that -

(a) the pleadings do not provide the Court with a basis to find that an ouster has occurred. Without an ouster established, the court lacks jurisdiction to order payment of occupational rent or the ejectment of the defendant from the Property, both claims reliant on the plaintiff's plea of ouster;

(b) the payment of occupational rent is the remedy usually granted by a Court where an ouster is determined to have occurred. On the plaintiff's own case it is accepted that the plaintiff's claim for occupational rent cannot be dealt with summarily. It is therefore appropriate that the plea of ouster is deferred for determination at trial and at that time the Court can consider what relief should flow from any findings; and

(c) the Court has a complete discretion to exercise in respect of the plaintiff's claim for carriage of the Property's sale which cannot be safely exercised summarily having regard to the factors it is bound to take into account.

1. The principles with respect to the court's power to order judgment on admissions and to order summary judgment are well established and may be summarised as follows.

1. Pursuant to the RSC O 30 r 3(1), where admissions of fact have been made on pleadings or otherwise, any party may at any stage of a cause or matter apply to the court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other question between the parties, and the court may on such application make such order or give such judgment as the court thinks just.
2. The power to grant judgment on admissions should be exercised with great caution and only in a clear case.[4]
3. The power of the court under this Rule is discretionary.[5] While the court has a discretion to give judgment upon any admission, the discretion should be exercised with great caution and having regard to case management principles.[6]
4. In a proper case, judgment can be given on an admission in respect of part only of a claim.[7]
5. Therefore, two questions arise on application for judgment on admissions. First, has the defendant made a clear and unambiguous admission that the plaintiff is entitled to the judgment he claims? Secondly, the power to order judgment on admissions being discretionary, would the order sought by the plaintiff be a proper exercise of the power?[8]

1. The principles with respect to the court's power to order summary judgment are well established and may be summarised as follows.
2. An application for summary judgment pursuant to the RSC O 14 r 1 must be supported by an affidavit verifying the facts on which the claim is based and stating that there is no defence to the claim.[9] A defendant may show cause against an application for summary judgment by affidavit or otherwise to the satisfaction of the court.[10]
3. Ordinarily, a party is not to be denied the opportunity to place their case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.[11] Accordingly, summary judgment must be granted only in the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the proceeding if it went to trial.[12] Put another way, the power to order summary judgment will not be exercised unless it is clear that there is no question to be tried.[13]
4. The plaintiff, in bringing the summary judgment application, bears the legal onus of establishing that there is no real question to be tried. But, once the plaintiff has satisfied the requirements of the RSC O 14, the plaintiff has a prima facie right to an order for summary judgment, and the evidentiary burden falls on the defendant to satisfy the court that there is a triable issue or an arguable defence.[14] To do so, it is necessary for the defendant, whether by affidavit or otherwise, to 'condescend upon particulars' and provide sufficient details of their defence.[15]
5. If after argument there remains real uncertainty as to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused.[16]

1. An application for summary judgment must be made within 21 days after appearance, or at any later time with the leave of the court.[17] The application was made on behalf of the plaintiff outside of the prescribed period and leave is required. The application should have been filed on or before 19 February 2020, but was filed on 4 May 2020.
2. It is well established that there are no set guidelines as when leave to apply for summary judgment out of time will be granted and the burden is on the applicant to show the delay is justifiable in all of the circumstances.[18]
3. The filing of the application was late by over two months (68 days).
4. The cause of the delay in bringing the application is addressed in the affidavit of Ms Griffin, solicitor for the plaintiff. In summary, the fault was that of the plaintiff's solicitors, in a context of the disruption in the relevant period caused by the COVID‑19 pandemic.
5. Counsel for the defendant points out that it cannot be said that the delay has not caused the defendant prejudice. In compliance with case management directions, a defence was filed and the defendant's representatives participated in case management conferences on 5 March 2020 and 9 April 2020.
6. I find that the additional work that was undertaken did not involve significant additional expenses in the context of this protracted dispute between the parties. I am satisfied that the plaintiff should not be barred from seeking summary judgment as a result of the delay on the part of his solicitor. Further, admissions made by the defendant in his defence are relied upon to ground the ejectment claim based on an alleged ouster. Admitted facts which are said to ground the application for summary judgment as framed were not available to the plaintiff until after the defence was filed on 2 April 2020. In all the circumstances, I am minded to grant leave to apply out of time. The merits of the application still remain to be determined.

Is the plaintiff entitled to judgment on admissions made by the defendant?

1. At par 17(a) ‑ (c) of his defence, the defendant admits that:

(a) the Deed sets out an agreement for the Property to be sold upon the conclusion of the Sole Occupancy Period (as defined in the Deed);

(b) the Sole Occupancy Period concluded on 9 May 2019; and

(c) following 9 May 2019, the plaintiff and the defendant were obligated by the Deed to sell the Property.

1. At par 22(a) of the defence, the defendant says that by reasons of the matters said and admitted in his defence, the court should make an order in the terms described at par 1 of the prayer for relief contained in the plaintiff's statement of claim.
2. When read with par 22(a) of the defence, the admissions contained at par 17 are clear in their terms, unambiguous and adequate to entitle the plaintiff to an order that the Property be sold free of encumbrances.
3. I accept the submission made on behalf of the plaintiff that where the court is prepared to order that a property be sold, orders to facilitate the sale of the property are orders that are permitted to be made pursuant to the RSC O 30 r 3(1). I do so having construed the Rule as permitting the court, when entering judgment on an admission, to make ancillary orders which upon such admission the plaintiff may be entitled to, without waiting for determination of any other question between the parties. I proceed on the basis that any such order must be strictly ancillary, that is, necessary to give effect to the judgment and ought not go beyond what is necessary.
4. The plaintiff submits that he should have carriage of the sale, subject to court oversight and several other conditions referred to in order 2 of the chamber summons. In support of this proposition, the plaintiff draws attention to the affidavit evidence setting out the difficulties experienced in communicating with the defendant,[19] and the fact that the Property is yet to be sold. On the basis of this evidence, the plaintiff submits that the defendant has been obstructing or frustrating the sale process and that it would therefore be inappropriate and impractical for the defendant to have joint carriage of that process.
5. In opposing the application, the defendant does not submit that the admission was made under a misapprehension about the relevant facts, or that there is some other reason why the court should not accept that the admission states truly the matter admitted. The defendant resists such an order being made on the basis that the parties are in dispute as to who should have control of the sale process and disagree on the finer terms of the sale, as revealed in the pleadings. The crux of counsel's submission was that orders to facilitate the sale of the Property are not orders that are permitted to be made pursuant to the RSC O 30 r 3(1), by reason of there being no admission nor agreement as to the sale orders sought by the plaintiff.[20]
6. At par 22(c) of the defence, the carriage of sale orders pressed by the defendant are set out. They are reproduced at Schedule B to these reasons.
7. Whereas the plaintiff seeks to control the sale, the defendant presses for orders whereby the sale would be controlled by both parties. Neither of the parties seek orders that closely resemble those in Supreme Court Form 38.[21]
8. On behalf of the defendant, it is submitted that without simultaneously determining who should be appointed to have carriage of the sale and on what terms, it would be of no practical value to make an order at this time for the Property to be sold. Instead, justice would be better served by expedited trial programming orders.
9. In the written submissions filed on behalf of the defendant, it was accepted that this proceeding is 'largely akin to a property sale action run pursuant to section 126 of the Property Law Act.'[22] It was also noted that it is not unusual in s 126 proceedings for the parties to be in agreement as to the need for a sale order but in dispute as to who should have carriage over the sale and also as to the terms of sale, and for there to be a trial to resolve such disputes.[23] It was submitted that just because the parties are from the outset in agreement that a sale must occur, that does not mean that the court can then proceed to exercise its discretion as to who should be appointed to have carriage of the sale and on what terms without there being a trial to hear from the parties on the factors to be taken into account in the exercise of that discretion.
10. Counsel for the defendant says that in property sale proceedings conducted pursuant to s 126, the court has a complete discretion as to who it will appoint to conduct a sale and while ordinarily conduct is given to the plaintiff party, in exercising its discretion the court is expected to have regard to a broad range of factors and good reasons might be shown to displace the ordinary course.[24]
11. The defendant says that he should not be denied the opportunity to be heard at trial where the court can properly make findings as to credibility and determine what relevance, if any, the issues raised by the plaintiff about the defendant's past conduct and behaviour has on how the court should exercise its discretion. This is especially so in circumstances where neither of the parties are seeking orders that resemble those in Common Form 38.
12. I am cognisant that it is a discretion that should be exercised with great caution. In all of the circumstances, I am prepared to enter judgment on an admission and order that the Property be sold, and also make ancillary orders for sale.
13. In addition to the respective submissions made by the parties, I have weighed the following in the balance.
14. First, there is in fact no dispute as between the parties that the Property must be sold.
15. Secondly, it is not just to require that the sale of the Property be delayed pending a trial in relation to the claim against the defendant for payment of an occupancy fee or ejectment orders. The Property remains mortgaged and interest continues to accrue to the detriment of the estate on a daily basis.[25] This is an appropriate case for judgment to be given on an admission in respect of part only of a claim.
16. Thirdly, following receipt of the plaintiff's written submissions, the defendant was on notice that pursuant to the RSC O 30 r 3(1), the plaintiff pressed for sale orders granting him carriage of the sale, subject to court oversight and several other conditions referred to in order 2 of the chamber summons. The defendant is not taken by surprise and was given the opportunity to file affidavit evidence as to whether such orders were just. He elected not to put that evidence before the court.
17. Fourthly, having regard to case management principles, I also take into account that making orders ancillary to judgment would reduce the issues for trial, and the length of any hearing in relation to the remaining issues.
18. As to the form of order, in all the circumstances, it would be just and appropriate for the sale orders to be made largely in the terms of in the standard form orders, but should include orders for the adoption of a recommended reserve price as recommended by an appointed agent. Further, I will include a co‑operation obligation, as is contemplated by order 2(j) of the plaintiff's requested orders, save that reasonable notice for inspections shall be two (rather than one) business days, and I will not include standard form order 9 (an order for possession upon service of order). I will also separately deal with the question of the costs of the application.
19. I am content to make these ancillary orders noting that the parties will have liberty to apply; that the sale orders may be varied or supplemented by the consent of both parties, and at all times, the court will retain its control and supervision over the sale which has been ordered by judgment and may intervene to annul or prevent a sale which is conducted otherwise than in accordance with the orders of the court.[26]

Is the plaintiff entitled to summary judgment against the defendant on the plaintiff's claim for ejectment?

1. The application for summary judgment was confined to the plea of ouster and related claim for ejectment. As noted above, the plaintiff does not press for summary judgment in relation to the claim for an occupancy fee. This was made clear by the written submissions filed in support of the application, and by counsel at the hearing. [27]
2. In summary, counsel for the plaintiff says that the plaintiff has been denied access to the Property, and so seeks an order for possession of the Property to facilitate the access to which the plaintiff is entitled, and which will facilitate the sale of the Property.[28] While counsel for the plaintiff referred in his submissions to the plaintiff seeking an order for possession, this is an inaccurate characterisation of the relief claimed. What in fact is sought by the application is an order for ejectment of the defendant from the Property (not enforcement of a right of co‑occupancy).
3. In summary, counsel for the defendant says that the plaintiff seeks an order for ejectment as a remedy for the plea of ouster; and that the court does not have a proper basis to find that an ouster has in fact occurred that would enliven the jurisdiction to grant an order for ejectment of the defendant from the Property.[29] While the defendant accepts that the Property is to be sold and that upon sale, he must vacate the Property, he does not accept that the plaintiff is entitled to an order for ejectment.[30]
4. In the context of co‑ownership, ouster refers to a wrongful act of exclusion of one co‑owner by another.
5. An essential characteristic of a tenancy in common, where each party owns an undivided interest in the whole, is that each of the tenants has the right to occupy the whole of the property in common with the others.[31] It has been long recognised that as all are equally entitled to occupation, one cannot claim rent from the other - compensation is not provided to co‑owners who do not remain in possession of jointly owned property.[32] However, ouster is one of the limited occasions where a court may allow compensation for sole occupation of co-owned property, as compensation for the interference with a proprietary right.
6. Exclusive possession will not by itself establish ouster. There must be a wrongful act. A wrongful act may include the exclusion of a co‑owner, or a refusal to allow the co‑owner to exercise their right to possession.
7. Ouster tends to arise in support of a claim for occupation rent, and the cases tend to concern the breakdown of the relationship as between co‑owners.[33]
8. The plaintiff refers to the decision of Forgeard v Shanahan as authority which supports his entitlement to an order for ejectment. In the context of an application for sale, the decision of Forgeard v Shanahan concerns a plaintiff who sought to make a defendant accountable for an occupation fee and that defendant who sought an allowance in her favour for the expenditure incurred by her. Meagher JA at 221 observed that this raised the question of the rights one co-owner has against another, particularly when one has been in occupation and the other has not. The position is summarised by Meagher JA in sixteen points at 221 - 224 of his Honour's decision. Counsel for the plaintiff refers specifically to the observation made at point 8 on 223, as follows:

... Turning to the liability of a co-owner in occupation to pay an occupation fee, the position at law is fairly clear. He is not liable unless he excluded his co-owner, in which case he rendered himself liable to ejectment and for mesne profits, or if he constituted himself a bailiff, in which event he would be liable in an action of account, like any other bailiff. (Citations omitted, emphasis added.)

1. The plaintiff relies on an admission in the defendant's defence together with affidavit evidence as the basis for his application for summary judgment.
2. As to the admission, at par 20 of the statement of claim, the plaintiff pleads that the defendant has denied the plaintiff access to the Property. As to that plea, the defendant admits that he is currently the sole occupant of the Property; and admits that he does not wish for the Plaintiff to occupy the Property together with the defendant pending its sale, but otherwise does not admit par 20 of the statement of claim.
3. As to the evidence, the plaintiff refers to par 28 of the plaintiff's affidavit filed 4 May 2020, which is in the following terms:

On 11th December I instructed my solicitors to write a further letter to Ms Jodie Moffat of HHG Legal with regard to my occupation of the property, my obtaining access to the property and an application pursuant to s.126 of the Property Law Act 1969. Annexed hereto and marked with the letter 'N' is a copy of this correspondence.

1. The terms of the annexed correspondence are reproduced below:

We refer to your letter dated 6th December 2019. Our client has instructed us that he left a letter at 71 Emerald Court, Singleton in late November 2019, expressing his wish to immediately commence occupation of the Singleton property. Our client has no key to the property, and accordingly, cannot gain access. Our client is entitled to occupy the property on the same basis as Mr Raymond Thomas Wright.

With regard to the application for sale of the property, pursuant to section 126 of the Property Law Act 1969, would you please indicate whether your client is going to cooperate with such application by our client.

We ask that you respond to this letter by open correspondence before close of business on Monday, 16th December 2019. If we do not receive an open correspondence response, it is our client's intention to commence proceedings for the sale of the Singleton property.

1. The plaintiff submits that par 20, taken with the plaintiff's affidavit evidence, establishes that the plaintiff has been excluded from possession of the Property.[34] Further, that such exclusion has been wrongful and renders the defendant liable to ejectment.
2. The application for summary judgment is supported by affidavits verifying the facts on which the claim is based and stating that there is no defence to the claim.
3. While the plaintiff has established a prima facie case for relief, having given careful consideration to the pleadings and to the affidavits filed, I am not satisfied to a high degree of certainty as to the outcome of the ouster claim at trial.
4. Having regard to the basis on which the plaintiff grounds its application for summary judgment, I find that there remains real uncertainty as to the plaintiff's right to judgment without further investigation of the facts. There is a serious question to be tried, and having so determined, summary judgment must be refused. There is a serious question to be tried, and having so determined, summary judgment just be refused. As there will be a trial of these issues, it is also not appropriate that I express concluded views as to the ouster claim or its evidentiary foundation.

1. I invite counsel for the plaintiff to prepare a form of order which reflects these reasons, and I will hear from the parties in relation to that proposed form of order and costs.

Schedule A - Orders sought by the plaintiff in the chamber summons filed 4 May 2020

1. The property known as 71 Emerald Court, Singleton, being the whole of the land comprised in Certificate of Title Volume 2166 Folio 427 (the Property) sold free of encumbrances.
2. The Plaintiff have conduct of the sale of the Property in accordance with the following Orders:

(a) as soon as practicable the Plaintiff shall engage in the name of the Plaintiff and the First Defendant a licensed real estate agent carrying on business in the City of Perth to act on such sale ('Agent');

(b) the Plaintiff cause the Agent appointed by the Plaintiff:

(i) to recommend a reserve price for the sale of the Property;

(ii) to adopt the reserve price recommended by the Agent as a reserve for the sale of the Property;

(iii) to market, advertise and offer the Property for sale by way of private treaty;

(c) the Plaintiff upon being notified by the Agent of the recommended reserve, give notice in writing to the First Defendant by their solicitors of such reserve;

(d) at any time within the period of 3 months from the date of the Agent's appointment, the Agent may recommend an alteration to the reserve price adopted for the sale of the Property and upon such recommendation being made by the Agent in writing the Plaintiff shall adopt the recommended altered reserve price as the reserve and give notice of the same to the First Defendant in the manner hereinbefore specified;

(e) the First Defendant have liberty to apply to the Court on 7 days' notice in respect of the reserve price;

(f) if within 3 months of the date of retainer of the Agent by the Plaintiff an offer acceptable to the Plaintiff is not received by the Agent, the Plaintiff shall request the Agent to provide recommendations in writing as to how the Property is to be marketed by public auction, including the period of advertising, the form of advertising and a recommended auction reserve and thereafter the Plaintiff shall cause the Property to be offered at a public auction in accordance with the Agent's recommendations;

(g) the First Defendant have liberty to apply to the Court on 7 days' notice in writing if the First Defendant seeks any variation to either the reserve price or to the terms or date of such auction;

(h) on any sale of the Property made pursuant to the terms of the Court's orders:

(i) the Plaintiff shall be authorised by this order to sign for and on behalf of himself and the First Defendant any transfers, notice of appointment of agent or other documents necessary to give effect to the sale of the Property;

(ii) any sale shall be pursuant to the current applicable joint terms and conditions for the sale of real estate published by the Law Society of Western Australia and the Real Estate Institute of Western Australia (Inc) unless otherwise ordered by the Court on application by any party;

(i) each party to the action will be at liberty to bid at auction or make offer by way of private treaty for the Property and:

(i) in the event that the party's offer in respect of the Property is accepted, such party need not pay a deposit;

(ii) the successful bidding party's interest in the Property shall be treated on account of payment of the purchase price such that if any party hereto is a successful bidder, then the proportional share of the purchase price (less any commission fees and expenses in respect of such sale) the subject of any contract will be deemed to have been paid on account of the purchase price;

(j) the First Defendant co-operate fully with the Agent in the sale process and without limiting the generality of the foregoing on reasonable notice of not less than one business day make available the Property for inspections.

1. The First Defendant pay the Plaintiff occupational rent for the Property from 10 May 2019 to date.
2. The First Defendant be ejected from the Property.
3. The First Defendant pay the Plaintiff's indemnity costs in this matter.
4. The parties have liberty to apply generally.

Schedule B - Par 22(c) of the statement of defence filed on 2 April 2020

22. The defendant says further that -

...

(1) As soon as practicable the parties shall engage a licenced real estate agent carrying on business in the Peel region of Western Australia to act on such sale (agent).

(2) The parties shall cause the agent -

(i) to recommend a reserve price for the sale of the Property;

(ii) to adopt the reserve prices recommended by the agent as a reserve for the sale of the Property; and

(iii) to market, advertise and offer the Property for sale by way of private treaty in a manner that does not expose the defendant, occupying the Property during the sale process, to any unreasonable risk of COVID-19 infection from persons entering the Property, such risk to be assessed having regard to the COVID-19 public announcements and directions issued by the State and Federal Government.

(3) At any time within the period of 6 months from the date of the agent's appointment, the agent may recommend an alteration to the reserve price adopted for the sale of the Property and upon such recommendation being made in writing the parties shall, subject to (4) below, adopt the recommended altered reserve price as the reserve.

(4) The parties shall have liberty to apply to the Court on 7 days' notice in respect of the reserve price.

(5) If within 6 months of the date of retainer of the agent an offer acceptable to both parties is not received by the agent, the parties shall request the agent to provide recommendations in writing as to how the Property is to be marketed by public auction, including the period of advertising, the form of advertising and a recommended auction reserve and thereafter the parties shall cause the Property to be offered at public auction in accordance with the agent's recommendations.

(6) The parties have liberty to apply to the Court on 7 days' notice in writing if either of the parties seeks any variation to either the reserve price or to the terms or date of such auction.

(7) On any sale of the Property that occurs pursuant to these orders -

(i) the parties must sign any transfers, notice of appointment of agent or other documents necessary to give effect to the sale of the Property;

(ii) any sale shall be pursuant to the current applicable joint terms and conditions for the sale of real estate published by the Law Society of Western Australia and the Real Estate Institute of Western Australia (Inc) unless otherwise ordered by the Court on application by any party;

(iii) neither party will be at liberty to bid at auction or make offer by way of private treaty for the Property and:

(iv) the parties must co-operate fully with the agent in the sale process and without limiting the generality of the foregoing on reasonable notice of not less than 3 business days make available the Property for inspections, provided such inspections do not expose the defendant to any unreasonable risk of COVID-19 infection from persons entering the Property, such risk to be assessed having regard to the public announcements and directions issued by the State and Federal Government.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] Plaintiff's submissions filed 16 June 2020 par 33.

[3] Defendant's submissions filed 26 June 2020 par 7 - 9.

[4] In the Matter of the Trade Marks Act 1955-1958 and In the Matter of Registered Trade Marks 'Certina' and 'Certina DS' (1970) 44 ALJR 191, 192; cited in Halford v Halford [No 2] [2018] WASC 303 [30].

[5] Lancaschire Welders Ltd v Harland & Wolff Ltd [1950] 2 All ER 1096, 1097.

[6] Cardaci v Filippo Primo Cardaci as Executor of the Estate of Marco Antionio Cardaci, dec [No 4] [2020] WASC 159 [98]; see also Lexis Nexis, Civil Procedure Western Australia, Vol 1, (loose leaf as at 18 December 2020) Orders 29 ‑ 40' at [30.3.1] citing Re Registered Trade Marks 'Certina' (1970) 44 ALJR 191, 192 - 193.

[7] Lexis Nexis, Civil Procedure Western Australia, Vol 1, (loose leaf as at 18 December 2020) 'Orders 29 ‑ 40' at [30.3.1] citing Lancaschire Welders Ltd v Harland & Wolff Ltd, 1098.

[8] Moon v Mun [2013] NSWCA 217 [40] ‑ [44], cited in Halford v Halford [No 2] [22].

[11] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57].

[12] Mavaddat v HSBC Bank Australia Ltd [No 2] [2016] WASCA 94 [59]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55]; Bastitstatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46] Agar v Hyde [57]; see also Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24] cited in Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [53].

[13] Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99.

[14] Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 110; see also Bankwest (a Division of Commonwealth Bank of Australia) v Mann [2015] WASC 187 [46]; HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153 [26]; GEL Custodians Pty Ltd v Dewar [2014] WASC 177 [25]; Wright v Wright [ 2002] WASC 30 [19]; Morgan v Pallister [2004] WASC 188 [4] cited in Deputy Commissioner of Taxation v Lafferty [54].

[15] Moscow v Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd (113), citing Wallingford v Mutual Society (1880) 5 App Cas 685, 704 cited in Deputy Commissioner of Taxation v Lafferty [54]

[16] Ansearch Ltd v Wavtech Pty Ltd [28]; Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VicLawRp 15; [1947] VLR 332, 335.

[18] Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki SMI (Unreported, WASC, Library No 920512, 12 October 1992) (Adams M).

[19] First affidavit of S J Stevens filed 4 May 2020 par 22 - 31.

[21] As acknowledged on behalf of the defendant at par 29 of the defendant's submissions, referring to Supreme Court Common Form 38 - Order for Sale of Land under s 126 of Property Law Act 1969 [8190].

[23] Defendant's submissions par 27, citing by way of example Bombara v Bombara [2010] WASC 314 and Elanel Pty Ltd v MJK Properties Pty Ltd [2013] WASC 292.

[24] Bombara v Bombara [79] - [81]; Elanel Pty Ltd v MJK Properties Pty Ltd [12].

[25] First affidavit of S J Stevens filed 4 May 2020 par 5.

[26] Giacci v Giacci Holdings Pty Ltd [No 2] [2011] WASC 135 [19].

[27] Plaintiff's submissions filed 16 June 2020 pars 22 - 27 (Judgment on admissions); ts 6 (23 July 2020).

[31] Nullagine Investments Pty Ltd v Western Australia Club Inc [1993] HCA 45; (1993) 177 CLR 635, 642.

[32] Jones v Jones [1977] 2 All ER 231; [1977] 1 WLR 438, 441; Moisley v Mahony [1950] VRL 318, 320.

[33] For example, Forgeard v Shanahan (1994) 35 NSWLR 206; Biviano v Natoli (1998) 43 NSWLR 695; Denis v McDonald [1982] 2 WLR 275; Davis v Johnson [1978] UKHL 1; [1979] AC 264; [1978] 1 All ER 1132; and Callow v Rupchev [2009] NSWCA 148.

[34] Defendant's submissions filed 16 June 2020 par 29.