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Hillman v Box and Others as Executors of the will of Box (No 2) [2011] ACTSC 10 (31 January 2011)

Last Updated: 7 February 2011

NOELLE ELIZABETH HILLMAN v LYNDA BOX, DEBRAH BOX and SKYE BOX as Executors of the Will of GRAEME WILLIAM BOX [No. 2]

[2011] ACTSC 10 (31 January 2011)

REAL PROPERTY – Sale by the Court – Need to avoid possible prejudice to competing parties – appointment of Registrar to execute conveyance – Trustee Act 1925 (ACT) s 79.

REAL PROPERTY – Sale by the Court – circumstances when court should order sale – conduct of the sale.

Partition Act 1900 (NSW)

Trustee Act 1898 (NSW), s 35

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 4(3)

Family Provision Act 1969 (ACT)

Land Titles Act 1925 (ACT), ss 73, 135, 136, 170

Powers of Attorney Act 2006 (ACT), s 60

Court Procedures Rules 2006 (ACT), rr 781-3

Civil Law (Sale of Residential Property) Act 2003 (ACT), ss 9, 10

Civil Law (Property) Act 2006 (ACT), s 237, 244

Trustee Act 1925 (ACT), ss 71(n), 79

Chancery Procedure Act 1852 (UK), s 55

Rules of the Supreme Court 1883 (UK), Order 51 Rule 1

Hillman v Box and Ors as the Executors of the Will of Box [2010] ACTSC 153

Re Robertson (1943) 44SR (NSW) 103

Wright v Gibbons [1949] HCA 3; (1949) 78 CLR 313

Corin v Patton [1990] HCA 12; (1990) 169 CLR 540

Abela v Public Trustee [1983] 1 NSWLR 308

Goyal v Chandra [2006] NSWSC 239; (2006) 68 NSWLR 313

Barham v Barham [2010] NSWSC 503

Burgess v Rawnsley [1975] Ch 429

Calabrese v Miuccio [No 2] [1985] 1 QdR 17

Breskvar v Wall [1971] HCA 70; (1971) 126 CLR 376

Frazer v Walker [1967] 1 AC 569

National Trustees, Executors and Agency Company of Australia Ltd v Barnes [1941] HCA 3; (1941) 64 CLR 268

Prince v Cooper (1853) 16 Bean 545; [1853] EngR 292; 51 ER 890

London and County Banking Co v Dover (1879) 11 Ch D 204

Tulloch v Tulloch [1867] LR 3 Eq 574

Re Robinson; Pickard v Wheater (1885) 31 Ch D 247

Farrow Mortgage Services Pty Ltd (In Liq) v Centre Line Corporation Pty Ltd & Ors (VSC, Beach J, 5101 of 1993, 31 May 1995, unreported)

Murray v Geoffroy (1918) 18 SR (NSW) 259

Davies v Wright (1886) 32 Ch D 220

Brewer v Square [1892] 2 Ch 11

Re Hurley’s Settled Estate (1920) 37 WN (NSW) 88

De Groot, J K and Nickel, B W. Family Provisions in Austalia (LexisNexis Butterworths: Sydney, 2007) 3rd ed.

Walker, D M The Oxford Companion to Law (Clarendon Press: Oxford, 1980)

No. SC 564 of 2010

Judge: Refshauge J

Supreme Court of the ACT

Date: 31 January 2011

IN THE SUPREME COURT OF THE )

) No. SC 564 of 2010

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: NOELLE ELIZABETH HILLMAN

Plaintiff

AND: LYNDA BOX, DEBRAH BOX and SKYE BOX as Executors of the Will of GRAEME WILLIAM BOX

Defendants

ORDER

Judge: Refshauge J

Date: 31 January 2011

Place: Canberra

THE COURT ORDERS THAT:

1. The parties provide within seven days any written submissions on the proposed draft orders in the reasons for judgment.

2. The parties provide within seven days any written submissions on the costs of the proceedings.

  1. This is a proceeding to resolve disputed issues about an estate of the deceased, Graeme William Box, in respect of which estate the plaintiff has made application for order under the Family Provision Act 1969 (ACT), and for other orders.
  2. The defendants are sued as executors of the estate of the deceased, though in the original and amended statement of claim there was no pleading to that effect. Probate was alleged to have been granted on 2 March 2010 of a will of the deceased, said to have been made on 15 April 2009. There is no information before me as to whether the defendants are all, or some of them and with or without others, the beneficiaries under the will.
  3. On 24 November 2010, I made interlocutory orders to give effect to what I considered was the desire of all parties to these proceedings that part of the estate, namely a property in the ACT suburb of Spence (the Spence property) and a property in Queanbeyan (the Queanbeyan property), be sold so costs associated with the properties, including the loan costs secured by a mortgage for which the plaintiff was continuing to be liable, would cease accruing.
  4. The orders I then made have turned out to provide some difficulties. Initially, I suggested that the parties endeavour to resolve the issues by negotiation and present to me an agreed proposed order that I could make. Regrettably, the parties were not able to come to any agreement and so it falls to me to decide between them again.

The background

  1. The broad circumstances are set out in my earlier reasons for decision: Hillman v Box and Ors as the Executors of the Will of Box [2010] ACTSC 153 (at [17] to [20]).
  2. On 8 December 2010, I ordered, in relation to the property at Spence (and Queanbeyan) as follows:

4. I direct, as to the properties at Spence ACT (the Spence property) and Queanbeyan (the Queanbeyan property), that:

(a) before the defendants enter into any contract for the sale of those properties, or either of them, they give to the plaintiff, by service on her solicitors, seven clear days notice of their intention to enter into such a contract together with a copy of the proposed contract showing all terms including as to price and finance in them;

(b) in the event that the plaintiff makes no application to the Court as a result of the notice of intention to enter into a contract for the sale of these properties, or either of them, or no order is made on such an application, the defendants be at liberty to enter into such a contract or contracts subject to this order;

(c) where the defendants have contracted to sell the Spence property, they shall submit to the plaintiff a Transfer in registrable form no later than 14 days before the date of completion of the sale;

(d) where the defendants have contracted to sell the Queanbeyan property, the plaintiff submit to the defendants no later than seven days prior to the date of completion a Withdrawal of Caveat Dealing Number [provided] in registrable form;

(e) if the plaintiff does not sign the Transfer submitted to her within seven days after it is submitted to her (or such further time as the defendants may allow) the Registrar shall have power to execute the Transfer as Registrar and that shall be as effectual as if the plaintiff had executed the Transfer herself;

(f) on completion of the sale of the properties, or either of them, the defendants shall deduct from the proceeds of sale:

(i) payment of all moneys necessary to discharge any encumbrances on the property or properties;

(ii) any agent’s commission and disbursements payable;

(iii) the proper costs and disbursements payable to any solicitor acting for the estate in the sale; and,

(iv) the payment of any moneys necessary to enable an adjustment of rates to the date of settlement.

The balance shall be paid to the defendants’ solicitors’ trust account to be held on an interest bearing deposit pending further order.

The problems

  1. The orders I made presupposed that the contract for the sale of the Spence property and the subsequently required Memorandum of Transfer of title to the property could be signed by persons whose signature as transferors would be accepted by the Registrar General so that the sale could be completed and the transfer of title registered. For reasons that appear below, that was an assumption I was not entitled to make.
  2. The proposed conveyance of the Spence property raises some particular issues in the context of the principal proceedings. In order to appreciate these, it is desirable to describe the circumstances in some detail.
  3. The Spence property was purchased, it is alleged (and there seems no real dispute about that), by the deceased and the plaintiff as joint tenants. It is, it appears, still registered in the names of the plaintiff and the deceased as joint tenants.
  4. Described by Roper J (as his Honour then was) in Re Robertson (1943) 44SR (NSW) 103 (at 105) as “the most important right of a joint tenancy”, the right of survivorship is poignantly relevant here. That right is what was described by Latham CJ in Wright v Gibbons [1949] HCA 3; (1949) 78 CLR 313 (at 323) as follows:
The interests of each joint tenant in the land held are always the same in respect of possession, interest, title and time. No distinction can be drawn between the interest of any one tenant and that of any other tenant. If one joint tenant dies his interest is extinguished. He falls out, and the interest of the surviving joint tenant or joint tenants is correspondingly enlarged.

  1. It was described by Deane J in Corin v Patton [1990] HCA 12; (1990) 169 CLR 540 (at 575) this way:

When one joint tenant dies during the subsistence of the joint tenancy, his interest ceases: the interests of the remaining joint tenants expand by accretion. When there is but one survivor, the joint tenancy has run its course and the survivor becomes the full owner of the whole property. In that context, it is not surprising that one joint tenant cannot effectively assign at law his place in a continuing joint tenancy.

  1. That is to say, when a joint tenant dies, his, her, or its interest devolves by operation of law, exclusive of the laws of testamentary devolution, upon the other joint tenant or joint tenants.
  2. When, sometime before his death, the deceased and the plaintiff ceased to live together in a domestic relationship, they sought to separate their property interests. This led to the execution of a “Termination Agreement”. In this Agreement, the plaintiff is purported to have transferred “all her rights, title and interest in the Spence property” to the deceased. Further, she executed a transfer, being a Memorandum of Transfer under s 73 of the Land Titles Act 1925 (ACT) (the Land Titles Act), which, on registration, would have the effect of severing the joint tenancy and transferring the whole of the title to the Spence property to the deceased.
  3. The execution of the Agreement and the signing of the transfer, without its registration, may have been sufficient to sever the joint tenancy: see Abela v Public Trustee [1983] 1 NSWLR 308 (at 314). It may, however, only have been an agreement to do so: Wright v Gibbons.
  4. Given that the court has power, in an appropriate case, to restrain a joint tenant from severing a joint tenancy, as provided for in Goyal v Chandra [2006] NSWSC 239; (2006) 68 NSWLR 313 (and see Barham v Barham [2010] NSWSC 503), it may be that these proceedings have intervened before the tenancy is severed.
  5. Nevertheless, the plaintiff has sought, amongst the remedies in her Amended Originating Application, a declaration that the Termination Agreement and Memorandum of Transfer are null and void. The effect of that on the joint tenancy is by no means clear, but if made, such an order may revive the joint tenancy if it has been severed by the execution of the Termination Agreement and Memorandum of Transfer. It may not: see Burgess v Rawnsley [1975] Ch 429 (at 444); Calabrese v Miuccio [No 2] [1985] 1 QdR 17.
  6. If, however, the Memorandum of Transfer that the plaintiff signed were to be registered, and which could now be done, that would certainly sever the joint tenancy and, because of the indefeasibility of title that registration gives (Breskvar v Wall [1971] HCA 70; (1971) 126 CLR 376; Frazer v Walker [1967] 1 AC 569), that may deprive the plaintiff of an effective remedy or otherwise prejudice the entitlements she is claiming in the proceedings.
  7. When a registered proprietor of registered land dies, there is need for registration of a new registered proprietor for only that person can effect dealings in the land. While, of course, a person can execute documents for another, this does not resolve the issue, for a Power of Attorney lapses on the death of the donor: s 60 of the Powers of Attorney Act 2006 (ACT).
  8. Section 135 of the Land Titles Act provides for the registration of the person who claims to be entitled to be registered as proprietor. Thus, Approved Form 015-ND is prescribed for a Surviving Proprietor to give Notice of Death. This is the form that would be used by the plaintiff to secure the registration of her interest as a result of survivorship.
  9. If, on the other hand, the defendants, as executors of the deceased’s estate, wished to be registered so as to deal with the property pending distribution of the estate, they would use Approved Form 032-TA, by which they would become registered proprietors but, of course, the will and s 136 of the Land Titles Act would bind them as to the dealings into which they could properly enter.
  10. To lodge either of these documents, however, would potentially prejudice the interests of the defendants for the lodgement of the former would give effect to the right of survivorship. The lodging of the latter would not permit the defendants as executors to be registered, for the death of the deceased would cause the right of survivorship (of which the form would give notice to the Registrar-General that it had come into operation) to end any interest that the deceased (and, therefore, his executors) had to the property. I do not know whether the Registrar-General would or could, on receipt of an application by the defendants as executors, give notice to the plaintiff or require her to make application under s 135 of the Land Titles Act.
  11. As noted above, however, the lodgement of the Memorandum of Transfer signed by the plaintiff would give full title to the deceased and the defendants could then file the Approved Form 032-TA seeking to be registered as executors. As also noted above, the plaintiffs’ interests may thereby be prejudiced.
  12. The problem for the conveyance of the Spence property in accordance with the orders I made (as set out in [6] above) is that neither party can actually give effect to them without possibly prejudicing their interests. The reason is simply because, while the deceased’s name appears on the title to the property, no Memorandum of Transfer of his interest can be executed, for neither he nor any attorney can sign it. In order to execute a transfer, either the plaintiff will have to be removed from the title (by registration of the challenged Memorandum of Transfer) followed, no doubt by registration of the defendants as executors, or, alternatively, the plaintiff will have to become registered as the proprietor of the whole property through the registration of the right of survivorship.
  13. Understandably, neither of those alternatives commend themselves to the parties.

The proceedings

  1. Following the making of my orders, the matter was adjourned to 1 December 2010 to confirm the orders. On that date, some issues arose about the orders I had pronounced because of the matters referred to above. I opined that this might require a sale by the court. I adjourned the proceedings to 8 December 2010 and urged the parties to consult and attempt to bring back redrafted orders, if at all possible by consent, to give effect to my order that the Spence property be sold.
  2. Regrettably on 8 December 2010, the parties reported to me that they could not agree on the appropriate orders and I was presented with two alternative proposals.
  3. The competing proposals are annexed as appendices to these reasons for judgment (see Appendix A and B) so that what is said below can be understood.
  4. The proposals by the defendants are the simplest. They rely on what is said to be a power under r 782 of the Court Procedures Rules 2006 (ACT) (the Rules) and s 170 of the Land Titles Act.
  5. They give the defendant the carriage of the sale and authorise the Registrar to execute relevant documents and for that execution to be recognised by the Registrar-General. They provide for the setting of a reserve price, appropriate disclosure, and an option should sale by private treaty not be effected in a reasonable time. Neither party is required to lodge documents with the Registrar-General that could prejudice their position in the proceedings.
  6. The proposals by the plaintiff present a variation to the proposals in relation to the Queanbeyan property and three options in relation to the Spence property.
  7. Two of the latter options require the lodging with the Registrar General of what is described as a “Notice of Death”, which I assume is an Approved Form 015-ND. These then give the conduct of the sale of the Spence property to the plaintiff with the opportunity to seek the court’s aid as to price (somewhat along the lines of the orders I made). They also make provision for the plaintiff to withdraw $50,000 from the proceeds of sale for payment in respect of the proceedings. There is no need for the Registrar to sign documents because the plaintiff will be registered as proprietor.
  8. The other option does not require lodgement of the above form and provides for joint sale. It seems to me I do not need to deal with this option further for it will not achieve the necessary objective since, in conveyancing terms, it still does not give any resolution to the question about the execution of the relevant documents for the interests of the deceased.

Consideration

  1. In my view, the options proposed by the plaintiff are not acceptable for they risk the prejudice to the defendants of a kind that the plaintiff herself seeks to avoid by having the defendants restrained from seeking to have the Memorandum of Transfer registered.
  2. In addition, the plaintiff renews her application for the sum of $50,000 to be paid out to her. I ordered that the sum of $50,000 be paid out to the defendants but did not make an order for payment to the plaintiff of a similar sum.
  3. It is not clear to me the basis on which the claim for a payment of that sum would be made by the plaintiff. None was suggested in argument.
  4. The defendants, as executors and defendants to the claim, are in a different position to the plaintiff. As a general rule, the legal personal representatives of a testator are entitled to their costs in a matter under the Family Provisions Act 1969 (ACT), see: De Groot, J K and Nickel, B W, Family Provisions in Austalia (LexisNexis Butterworths: Sydney, 2007) 3rd ed at p 250 ([10.9]) and the cases there cited. Insofar as the proceedings are not family provision proceedings, the ordinary rules apply and a trustee will, even if unsuccessful in the proceedings, be indemnified out of the estate where the conduct in defending the proceedings was reasonable: National Trustees, Executors and Agency Company of Australia Ltd v Barnes [1941] HCA 3; (1941) 64 CLR 268 (at 279).
  5. Further, though I do not have details of the estate, it is clear that the plaintiff is only claiming a portion of it and there is no reason why the whole estate should be frozen so long as the plaintiff’s entitlement, if proved, is protected.
  6. So far as the plaintiff is concerned, the likelihood of her recovering costs is entirely dependent upon her being successful in the proceedings. There is no rule that applicants in Family Provisions Act claims ordinarily receive their costs whether successful or not. The plaintiff’s likelihood of success cannot be ascertained with any certainty at this stage, and there is nothing in the materials which I have seen that shows the plaintiff’s case is such a strong one that an advance on costs should be made. That is not to say I have formed a view about the case, only that there is nothing so far which shows the case to be stronger than any disputed case which the courts see all the time.
  7. Accordingly, I see no basis for an order paying out any funds from the estate to the plaintiff.
  8. It seems to me that, as the defendant’s submit, the only way to overcome the impasse that preservation of possible rights (and they are only possible rights that each party asserts) has created, is for the court to order a sale.
  9. Under rr 781 and 782 of the Rules the court is permitted to do so and r 783 gives the court power to direct the conduct of the sale. These rules are in the following terms:
781 - Application – div 2.9.6

This division applies only in relation to a proceeding in the Supreme Court in relation to land.

782 - Sale of land – order

The court may order—

(a) that all or part of the land be sold before the proceeding is decided; and

(b) that any party in receipt of the rents or profits of all or part of the land, or otherwise in possession of all or part of the land, give possession to the person that the court directs.

783 – Sale of land – conduct of sale

(1) The court may appoint a party or someone else to have the conduct of the sale if the court—

(a) makes an order under rule 782 that land be sold; or

(b) by a judgment, orders the sale of land.

(2) The court may direct a party to join in the sale and conveyance or transfer or in another matter relating to the sale.

(3) The court may permit the person having the conduct of the sale to sell the land in a way the person considers appropriate or give directions about conducting the sale.

(4) Directions given under subrule (3) may include the following:

(a) stating the kind of sale, including, for example, sale by contract conditional on the court's approval, private treaty or tender;

(b) setting a minimum or reserve price;

(c) requiring payment of the purchase money into court or to a trustee or someone else;

(d) for settling the particulars and conditions of sale;

(e) for obtaining evidence of value;

(f) stating the remuneration to be allowed to a real estate agent or someone else.

  1. Rules 781 and 782 are the successors to s 55 of the Chancery Procedure Act 1852 (UK).
  2. In Prince v Cooper (1853) 16 Bean 545; [1853] EngR 292; 51 ER 890, Sir John Romilly MR said (at 547; 891) of that provision:
The Act is intended to apply only to those cases in which, for the protection of the property or other like cause, it is necessary to come to the Court; but not to enable a party in a contested suit and upon an interlocutory application before the hearing of the cause, to obtain a decision upon the main questions at issue in it.

  1. Later, in London and County Banking Co v Dover (1879) 11 Ch D 204, Jessel MR expressed the opinion:
...that sect.55 of the Chancery Procedure Act, 1852, did not apply to an ordinary foreclosure suit, and did not authorize an order for sale of mortgaged property in such an interlocutory application. The section referred to the sale of real estate “for the purposes of the suit,” showing that it was intended to apply to administration suits.

  1. An administration action is defined in Walker, D M The Oxford Companion to Law (Clarendon Press: Oxford, 1980) at p 25 in the following terms:
An action or matter initiated in the Chancery Division by a creditor, or a trustee, executor, or administrator, who requires the direction of the court on the matter, to secure the proper administration of the estate of a deceased person.

  1. In Tulloch v Tulloch [1867] LR 3 Eq 574, Sir R Malins VC said (at 575-576) in reference to Prince v Cooper:
The Master of the Rolls, in the case referred to, said the 55th section was applicable only to a case in which, for the protection of the property, or other like cause, it is necessary to come to the Court. The question here is, whether it is for the protection of the property that the house should now be sold? In my opinion it is so. What I mean by protecting the property is, that a house in the west end of London, remaining unoccupied and unproductive, should be converted into money as early as possible, and turned to the most advantage for the infants.
  1. In Re Robinson; Pickard v Wheater (1885) 31 Ch D 247, Pearson J said (at 249) of the provision which had become Order 51 Rule 1 of the then Rules of the Supreme Court 1883 (UK):
But I still think the rule means that the Court may order a sale whenever it is necessary for the purposes of the action, and that it was not intended to enable the Court to sell the real estate when otherwise it had no power to do so.

  1. More recently, in Farrow Mortgage Services Pty Ltd (In Liq) v Centre Line Corporation Pty Ltd & Ors (VSC, Beach J, 5101 of 1993, 31 May 1995, unreported) Beach J utilised the equivalent rule in Victoria to order the sale of units in proceedings where the plaintiff sought orders for payment to them of the rents and profits of those units, the appointment of a receiver over them or, alternatively, their sale.
  2. It seems to me, whether one takes a broader or narrower view of the scope of these rules, they give the power of sale by the court in these proceedings, which seem to me to be an administration suit in any event.
  3. Since both parties desire it, I should do so. It clearly is “unoccupied and unproductive” land and the loan secured by the mortgage is an ongoing outgoing of the plaintiff or the estate.
  4. The only issue then is what orders I should make for the conduct of the sale.
  5. It appears that ordinarily the plaintiff is given conduct of the sale: Murray v Geoffroy (1918) 18 SR (NSW) 259. That case, however, was a partition suit, though this case has some similarities to such a proceeding.
  6. In Davies v Wright (1886) 32 Ch D 220, North J was influenced by the question of which party’s interest was it that the best price be obtained. In Brewer v Square [1892] 2 Ch 11, Kekewich J (at 114-5) gave the conduct of the sale to the party his Honour thought would be more likely to be successful.
  7. In this case, it seems to me that the defendants are the appropriate party to have conduct of the sale. They will be selling the Queanbeyan property as well. There is prima facie documentary evidence that the Spence property is part of the estate, though this is strongly challenged by the plaintiff. As executors, the defendants have trustee obligations to the estate.
  8. Usually such sales are ordered to be by auction, but the court’s discretion as to the method by which a sale is to be effected is not constrained. The defendants in their orders suggest initially a sale by private treaty. There is no contrary submission from the plaintiff. I shall authorise sale by private treaty.
  9. Despite this, the defendant’s suggest that, in default of agreement between the parties, the court set a “minimum price” below which the property should not be sold by private treaty. Initially, I was not attracted to this and preferred the method suggested in my orders and adopted by the plaintiff. On further reflection, however, I consider that my proposal may disrupt the sale for it risks an application to the court at the time when a prospective purchaser has made an offer which the defendants wish to accept. This has the real potential to put the sale at risk. I shall, therefore, adopt the approach of the defendants.
  10. I consider that the form of the contract should also be generally agreed, being aware that ss 9 and 10 of the Civil Law (Sale of Residential Property) Act 2003 (ACT) require a copy of the proposed contract to be available for inspection by a prospective buyer at all times when an offer to buy is made. This will, however, require appropriate provisions for agreement on varied or additional terms that the buyer may wish to negotiate for inclusion in the contract, and I shall make such provision.
  11. I agree that a copy of the court order should be annexed to the contract and that a copy should be registered on the title under s 170 of the Land Titles Act.
  12. I also agree that to resolve the difficulties with execution of the contract for sale and the Memorandum of Transfer, a person needs to be appointed for that purpose. I had made provision in the order for the Registrar to do so in the event that the plaintiff did not. This default provision, where a party refuses to execute a document, is a not an uncommon provision and there is jurisdiction under legislative remit such as s 237 of the Civil Law (Property) Act 2006 (ACT).
  13. Here, however, it is necessary to appoint someone without such a default, as the deceased cannot sign and neither party wishes to risk prejudicing their position by taking such steps as may be necessary to give one of them power to execute the relevant documents.
  14. Regrettably, neither party identified the relevant provisions enabling this to be done. I am, for example, not satisfied that r 783 of the Rules gives the court that power and, even if it did, I am unable to see any provision in the Land Titles Act that requires or, indeed, enables, the Registrar-General to register a Memorandum of Transfer that was signed in this way.
  15. The defendants’ draft minutes of orders suggested s 68 of the Land Titles Act was such a provision, but I do not accept that; it requires a “law or Act” to give the transfer validity and I do not accept that, for this purpose, a court order, even under a power given by the Rules, is either a law or an Act.
  16. Having given this matter some thought, it seems to me that I can proceed under s 79 of the Trustee Act 1925 (ACT) (the Trustee Act). That provides:
In all cases where a vesting order can be made the Supreme Court may, if it is more convenient, appoint a person to convey the property or release any contingent right, and a conveyance or release by that person in conformity with the order shall have the same effect as an order under the appropriate provision.

  1. This power is conditional upon the court having power to make a vesting order and the circumstances in which this can be done are set out in s 71 of the Trustee Act. Subsection (2) lists a number of circumstances where a court may make a vesting order. The relevant one appears to be “(n) if the court might have made a vesting order and if this Act had not been passed”.
  2. I am not sure whether that refers to the position as at 1925 (when the Trustee Act – then an Ordinance) was made or whether it refers to the present.
  3. In the case of 1925, the court had power to make a vesting order in these circumstances in respect of the Spence property under the Partition Act 1900 of the State of NSW in its application to the ACT. In a partition suit, and in relation to the Spence property, there is sufficient similarity to such a suit in what is here being sought, the court could order a sale instead of a division of the property. If it did so, s 35 of the Trustee Act 1898 of the State of NSW in its application to the ACT (the 1898 Act) permitted the court to make a vesting order in favour of a party.
  4. Indeed, in Re Hurley’s Settled Estate (1920) 37 WN (NSW) 88, Street CJ in Eq made an order of that kind, requiring the Chief Clerk in Equity to convey land in circumstances very analogous to this situation.
  5. If s 71(n) of the Trustee Act refers, instead, to the date of the application, it seems to me the same result is achieved.
  6. Section 244 of the Civil Law (Property) Act 2006 (ACT) permits the court in a partition suit to appoint trustees for the receipt and application of the proceeds of the sale. Given the wide definition of “proceedings for partition of property” (see s 242) this would apply.
  7. That power, however, is not sufficient, in my view, to give jurisdiction to make a vesting order.
  8. If, however, the Trustee Act had not been passed, then s 34 of the 1898 Act would apply and permit the court to make a vesting order.
  9. Accordingly, I am satisfied that I have power to make a vesting order and that, accordingly, s 79 of the Trustee Act applies. I can, therefore, order that the Registrar sign the relevant documents and be satisfied that they will be registrable by the Registrar-General.
  10. It would seem to me that the Registrar-General is then obliged to recognise a Memorandum of Transfer executed by the person appointed to convey under the order because “the order shall have the same effect as an order under the appropriate provision” and this means that the person so appointed can effectively transfer the estate. In addition, s 170(2) of the Land Titles Act gives the person power to “execute such instruments as under [the Land Titles] Act are necessary to transfer... the interest”.
  11. The advantage of proceeding in this way is to avoid the need for a vesting order and the associated cost and delay.
  12. The defendants further proposed that if the contracts for the sale of the Spence property are not exchanged within 3 months of the date of the order, either of the parties have liberty to apply to the court for a variation of the order to authorise a sale by auction. That seems a sensible idea.
  13. Finally, the plaintiff proposed a variation to the orders relating to the sale of the Queanbeyan property. These variations were mainly cosmetic, and did not include much substantive change except to require disclosure of the prospective purchaser. I do think that this is reasonable in the circumstances.
  14. They also included a requirement that the encumbrance on the Spence property be discharged. That may have been implied in present order 4(f)(i). As the loan secured by the mortgage over the Spence property was raised in order to pay for the Queanbeyan property, this does not seem unreasonable.

Orders

  1. Because the orders I propose to make are somewhat different from the proposals put by either party, though substantially in the terms proposed by the defendants, I will simply set out the orders I propose to make and then give the parties 7 days within which to make submissions as to them and I will either relist the matter for brief argument in the, hopefully unlikely, event that I consider this necessary, or make the orders in Chambers.
  2. Accordingly, I propose the following orders:
    1. Order 4 made on 8 December 2010 be vacated.
    2. In lieu, the following order be made:
      1. (a) before the defendants enter into any contract of sale for the property at 146 Gilmore Street, Queanbeyan, NSW (the Queanbeyan property) they give to the plaintiff, by service on her solicitor, seven clear days notice of their intention to enter into such a contract together with a copy of the proposed contract showing the name and address of the proposed purchaser and the proposed price and all other agreed terms;

(b) in the event that the plaintiff makes no application to the court within those seven days, or the court gives the defendants leave to do so, the defendants be at liberty to enter into the proposed contract.

(c) where the defendants have entered into the proposed contract, the plaintiff shall submit to the defendants, through their solicitors, not later than seven days prior to the date of completion notified by the defendants, withdrawal of caveat dealing number AF 798275X in registrable form;

(d) should the plaintiff fail to sign a withdrawal of caveat then, acting under s 4(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), I appoint under s 94 of the Civil Procedure Act 2005 (NSW) the Registrar of the ACT Supreme Court to execute such a withdrawal of caveat as is submitted by the defendants, upon her being satisfied of such failure or refusal;

(e) on completion of the sale, the defendants shall deduct from the gross proceeds of the sale:

  1. payment of all moneys necessary to discharge any encumbrances on the property at 10 Horan Place, Spence, ACT;
  2. all proper agent’s commission and disbursements payable in respect of the sale;
  3. all proper costs and disbursements payable to any solicitor acting for the defendants on the sale; and
  4. the payment of any moneys necessary to enable an adjustment of rates or other proper outgoings to be made to the date of settlement;

(f) the balance of the gross proceeds of the sale, after the deductions referred to in 4(e) have been made, shall be paid to the defendants’ solicitors’ trust account to be held on an interest bearing deposit pending further order.

  1. A separate order be made in the following terms:
  2. Order 5 made on 8 December 2010 be varied by omitting “4(f)” and substituting “4(e)”.
  3. Liberty be reserved to the parties and each of them to apply on two days notice.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 31 January 2011

Counsel for the plaintiff: Dr D Hassall

Solicitor for the plaintiff: Capital Lawyers

Counsel for the defendants: Dr C Ward

Solicitor for the defendants: Tetlow Tigwell Watch

Date of hearing: 8 December 2010

Date of judgment: 31 January 2011

APPENDIX A: Plaintiff’s proposed revision of short minutes of orders.

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

NOELLE HILLMAN v LYNDA BOX & ORS No. SC 564 of 2010

PLAINTIFF’S PROPOSED REVISION OF SHORT MINUTES OF ORDERS

[Note: This indicates the Plaintiff’s proposed changes to His Honour’s Draft of Short Minutes (in their revised form as handed to parties by Judge’s Associate]

Order 1. As is.

Order 2. As is.

Order 3. As is.

Order 4. Opening lines as is; DELETE (a) to (f), then INSERT after the colon:

“As to the Queanbeyan Property:

(a) Before the Defendants enter into any contract for the sale of the Queanbeyan property, they give to the Plaintiff by service on her solicitors seven clear days notice of their intention to enter into such a contract together with a copy of the proposed contract showing all terms including as to price and finance and the identity of purchaser in them.

(b) In the event that the Plaintiff makes no application to the Court as a result of the notice of intention to enter into a contract for the sale of the Queanbeyan property, or no order is made on such an application, the Defendants be at liberty to enter into such a contract subject to this order;

(c) Where the Defendants have contracted to sell the Queanbeyan property, the Plaintiff submit to the Defendants no later than 7 days prior to the date of completion a Withdrawal of Caveat Dealing Number AF 798275X in registrable form;

(d) On completion of the sale of the Queanbeyan property, the Defendants shall deduct from the proceeds of sale:

(i) Payment of all moneys necessary to discharge any encumbrances on the Spence property;

(ii) Any proper agents commissions and disbursements payable;

(iii) The proper costs and disbursements payable to any solicitor acting for the Defendants on the sale; and

(iv) The payment of any moneys necessary to enable an adjustment of rates and other outgoings to the date of settlement and the balance shall be paid to the Defendants’ solicitors’ trust account to be held on an interest bearing deposit pending further order;

As to the Spence Property:

(e) The Defendants shall do all things necessary for, and co-operate with the Plaintiff in, causing the lodgement with the A.C.T. Registrar of Titles, of a Notice of Death, in registrable form, to place the Registered Proprietorship of the Spence property in the Plaintiff’s sole name;

(f) Before the Plaintiff enters into any contract for the sale of the Spence property, she give to the Defendants by service on their solicitors seven clear days notice of her intention to enter into such a contract together with a copy of the proposed contract showing all terms including as to price and finance and the identity of purchaser in them.

(g) In the event that the Defendants make no application to the Court as a result of the notice of intention to enter into a contract for the sale of the Spence property, or no order is made on such an application, the Plaintiff shall be at liberty to enter into such a contract subject to this order;

(h) On completion of the sale of the Spence property, the Plaintiff shall deduct from the proceeds of sale:

(i) Payment of all moneys necessary to discharge any encumbrances on the Spence property;

(ii) Any proper agents commissions and disbursements payable;

(iii) The proper costs and disbursements payable to any solicitor acting for the Plaintiff on the sale; and

(iv) The payment of any moneys necessary to enable an adjustment of rates and other outgoings to the date of settlement and the balance shall be paid to the Plaintiff’s solicitors trust account to be held on an interest bearing deposit pending further order;

(i) Notwithstanding order 4(h) above, the Plaintiff may withdraw no more than $50,000 from the proceeds of sale of the Spence property, to pay legal fees in respect of the pending proceedings herein and shall retain a copy of the tax invoice in that regard;

[ALTERNATIVELY]

[As to the Spence Property:

(e) Before the Defendants enter into any contract for the sale of the Spence property, they give to the Plaintiff by service on her solicitors seven clear days notice of their intention to enter into such a contract together with a copy of the proposed contract showing all terms including as to price and finance and the identity of purchaser in them.

(f) In the event that the Plaintiff makes no application to the Court as a result of the notice of intention to enter into a contract for the sale of the Spence property, or no order is made on such an application, the Defendants jointly with the Plaintiff shall be at liberty to enter into such a contract subject to this order;

(g) Where the Defendants jointly with the Plaintiff have contracted to sell the Spence property they shall submit to the Plaintiff a transfer in registrable form other than in respect to the stamping showing the payment of stamp duty no later than 14 days before the date of completion of the sale

(h) If the Plaintiff does not sign the Transfer submitted to her within seven days the Registrar of the Court shall have power to execute the Transfer as Registrar and the Transfer shall be effectual as if the Plaintiff had executed the transfer herself.

(i) On completion of the sale of the Spence property, the Plaintiff and Defendants shall deduct from the proceeds of sale:

(i) Payment of all moneys necessary to discharge any encumbrances on the Spence property;

(ii) Any proper agents commissions and disbursements payable;

(iii) The proper costs and disbursements payable to any solicitor acting for the Plaintiff and Defendants on the sale; and

(iv) The payment of any moneys necessary to enable an adjustment of rates and other outgoings to the date of settlement and the balance shall be paid to the Plaintiff’s solicitors trust account to be held on an interest bearing deposit pending further order;

(j) Notwithstanding order 4(i) above, the Plaintiff may withdraw no more than $50,000 from the proceeds of sale of the Spence property, to pay legal fees in respect of the pending proceedings herein and shall retain a copy of the tax invoice in that regard;]

[ALTERNATIVELY]

[As to the Spence Property

(k) The Plaintiff shall forthwith do all things necessary to cause the lodgement with the A.C.T. Registrar of Titles, of a Notice of Death, in registrable form, to place the Registered Proprietorship of the Spence property in the Plaintiff’s sole name; and in the event that the Plaintiff fails to do so, the Registrar of this Honourable Court as Registrar, may cause such lodgement of such Notice ;

(l) Before the Plaintiff enters into any contract for the sale of the Spence property, she give to the Defendants by service on their solicitors seven clear days notice of her intention to enter into such a contract together with a copy of the proposed contract showing all terms including as to price and finance and the identity of purchaser in them; And in the event that the Plaintiff has not, within a reasonable time, so given to the Defendants such notice of such intention and copy of proposed contract, then the Registrar of this Honourable Court as Registrar, shall be at liberty to offer the Spence property for sale by private treaty (at reasonable current market value) in the name of the Plaintiff as Registered Proprietor and before the Registrar enters into any contract for the sale of the Spence property, the Registrar is to give to the Plaintiff and the Defendants by service on their respective solicitors seven clear days notice of the Registrar’s intention to enter into such a contract together with a copy of the proposed contract showing all terms as indicated above;

(m) In the event that the Defendants (or, in the case of a Notice of Intention given by the Registrar in the case as referred to in sub-Order 4(l) above, the Plaintiff or the Defendants) make no application to the Court as a result of the notice of intention to enter into a contract for the sale of the Spence property, or no order is made on such an application, the Plaintiff (or the Registrar in the Plaintiff’s name, in the case as referred to in sub-Order 4(l) above) shall be at liberty to enter into such a contract and sign a Transfer thereunder, subject to this order;

(n) On completion of the sale of the Spence property, the Plaintiff (or the Registrar in the case referred to in sub-Orders 4(l) and (m) above) shall deduct from the proceeds of sale:

(i) Payment of all moneys necessary to discharge any encumbrances on the Spence property;

(ii) Any proper agents commissions and disbursements payable;

(iii) The proper costs and disbursements payable to any solicitor acting for the Plaintiff (or for the Registrar, as the case may be) on the sale; and

(iv) The payment of any moneys necessary to enable an adjustment of rates and other outgoings to the date of settlement and the balance shall be paid to the Plaintiff’s solicitors trust account to be held on an interest bearing deposit (or into such other trust account under the control of the Registrar as the Court may direct and to be held on an interest bearing deposit) pending further order;

(o) Notwithstanding order 4(n) above, the Plaintiff may withdraw (or in the case where the Registrar is involved as provided for above in these Orders, the Registrar may pay out to the Plaintiff) no more than $50,000 from the proceeds of sale of the Spence property, to pay legal fees in respect of the pending proceedings herein and shall retain a copy of the tax invoice in that regard;]

INSERT NEW ORDER 4A as follows: “4A. In the case where the Registrar is involved as provided for above in these orders, anything done by the Registrar in the name of the Plaintiff and in accordance with these Orders, shall be effectual as if the Plaintiff had done the same herself.

INSERT NEW ORDER 4B as follows: “4B. Where the Plaintiff (or the Registrar in the Plaintiff’s name, as the case may be) has contracted to sell the Spence Property in accordance with these Orders, the Plaintiff and the Defendants shall submit to the Solicitor acting for the Plaintiff (or for the Registrar, as the case may be) no later than 7 days prior to the date of completion, Withdrawals of Caveat in registrable form, as to the respective caveats presently lodged by the Plaintiff and the Defendants respectively, in respect of the Spence Property.”

Order 5. As is; except for consequential changes that “4(f)” becomes “4(d)”; and further, in the second and third lines of Order 5, delete the words “the Spence Property and”.

Order 6. As is.

Order 7. As is.

Order 8. As is.

Order 9. As is.

Order 10. As is.

Order 11. As is.

Order 12. As is.

***************************************************************************************

APPENDIX B: Defendants’ proposed short minutes of orders.

IN THE SUPREME COURT OF THE ) No SC 564 of 2010

AUSTRALIAN CAPITAL TERRITORY )

NOELLE ELIZABETH HILLMAN

Plaintiff

LYNDA BOX, DEBRAH BOX AND SKYE BOX as executors of the will of GRAEME WILLIAM BOX

Defendant

SHORT MINUTES OF ORDERS

  1. Pursuant to Court Procedures Rules Rule 782 the Court orders the sale of the Property by private treaty;
  2. The defendants have carriage of the process of sale and pay the associated costs of the sale;
  3. Within 7 days the defendants and plaintiff agree on a minimum price for the sale, failing which the defendants are to provide to the Court in affidavit form the opinion of a licensed real estate agent as to the appropriate minimum price for sale to enable the Court to make a direction pursuant to Rule 783(3) of the Court Procedures Rules;
  4. The defendants prepare a contract and transfer in respect of the sale of the Property noting the plaintiff and the estate of the deceased as vendors;
  5. The contract for sale include a special condition to the effect that the property is sold pursuant to these Orders;
  6. A copy of these Orders be annexed to each of the contract for sale and transfer;
  7. The Registrar of the Court be empowered to execute the contract for sale and transfer and such execution be effective to constitute the conveyance of the Property;
  8. Upon completion of the sale of the Property the transfer be lodged for registration within 7 days and the Registrar-General shall, pursuant to s68 of the Land Titles Act, note the interest of the purchaser in the Property.
  9. In the event contracts for sale of the property have not been exchanged within three months of the date of these orders the parties have liberty to apply to the Court to vary the orders so as to effect a sale by auction.

10. The net proceeds of sale having deducted all ordinary costs of the sale be lodged in an interest bearing trust account with the solicitors to the defendants.

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