Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd
[2008] NSWSC 839
•15 August 2008
CITATION: Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2008] NSWSC 839 HEARING DATE(S): 29, 30 & 31 July 2008
JUDGMENT DATE :
15 August 2008JURISDICTION: Equity JUDGMENT OF: Bryson AJ DECISION: Upon the Notice of Motion filed on 12 October 2007 by Stephen James Parbery and Andrew Leslie Smith:
1. Order that the payment by Andrew Leslie Smith and Stephen James Parbery (together, Joint Trustees) of each of the amounts described in paragraphs 1(a), (b) and (c) be confirmed.
(a) $190,600.17 to Arrow/N M Rothschild & Sons (Australia) Limited in repayment of funding provided to the Joint Trustees; and
(b) $52,509.25 to Strategic Resources (Aus) Pty Limited in respect of amounts paid by it to the Rural Lands Protection Board and Oberon Council, after the date of the appointment of the Joint Trustees; and
(c) $3,963.00 to Strategic Resources (Aus) Pty Limited in respect of amounts paid by it to Tableland Surveyors, after the date of the appointment of the Joint Trustees.
2. Order that the Joint Trustees be at liberty to pay, in full and final settlement of any claim for legal costs arising out of the proceedings in which the Joint Trustees were appointed by Ausforest Limited (Receivers and Managers Appointed) (In Liquidation) and Pine Forests of Australia Pty Limited (PFA), the high range estimates by the Joint Trustees’ costs consultant of the likely costs recoveries for those claims.
3. Order that the Joint Trustees be at liberty to pay, in full and final settlement of any claim by Pine Forests of Australia (Canberra) Pty Limited (In Liquidation) for legal costs arising out of the proceedings in which the Joint Trustees were appointed, the sum of $9,996.42 inclusive of GST (being one half of the sum of $19,992.84 claimed in the Bill of Costs admitted into evidence as Exhibit B).
4. Direct that the Trustees not pay any of the claims notified by Pine Forests of Australia Pty Limited, other than the claims confirmed by Order 1.
5. Orders that the Joint Trustees be at liberty to distribute the proceeds of sale of the Land according to the following relative value of each lot:
Lot 1 0.2752
Lot 4 0.2130
Lot 7 0.1753
Lot 8 0.1165
Lot 9 0.1012
Lot 10 0.1187
Direct that the Trustees proceed to consider and determine the claims of Henry Turpin and Dooley in accordance with the reasons published by the Court; with liberty to apply for further directions if the Trustees consider that there is any doubt or difficulty.
7. Direct that the Trustees proceed to distribute the net proceeds of sale after payment of costs and expenses in accordance with the distribution methodology stated in the evidence of Andrew Leslie Smith: but that they retain the part of the net proceeds attributable to the interests of unlocated investors.
8. Direct that the Trustees apply the part of the net proceeds attributable to the interests of unlocated investors to meeting such claims as may be established on or before 19 April 2010: and deal with any amount then unclaimed in accordance with the Unclaimed Money Act 1995: that in the meantime they take steps to advertise and otherwise make publicly available information about the possibility of claims and the names so far as known of unallocated investors: with liberty to apply for directions.
Upon the First Defendant’s Amended Notice of Motion filed on 29 July 2008
9 Dismiss the Notice of Motion.CATCHWORDS: PARTITION - Statutory Trust for Sale s66G of Conveyancing Act 1919 - sale of Hai Welyki pine plantation owned by several thousand joint tenants of Lots - application by Trustees for sale for directions on payments and distribution methodology - application by one co-owner for directions for payment of its claims for rates paid and work done before and after s66G Order - consideration of claims based on contribution, constructive trust, implied contract - Trustees directed not to pay those claims. LEGISLATION CITED: Conveyancing Act 1919
Corporations Act 2001 (Cth).
Trustee Act 1925
Unclaimed Money Act 1995CASES CITED: Anonymus in Chancery, Skinner 230, 90 ER 106
Baumgartner v Baumgartner (1987) 164 CLR 137
Forgeard v Shanahan (1994) 35 NSWLR 206
Horn v Gilpin (1755) Ambler 255, 27 ER 17
Muschinski v Dodds (1985) 160 CLR 583
Re Fettell (1952) 52 SR (NSW) 22
Ryan v Dries [2002] NSWCA 3
Strelly v Winson (1684) 1 Vernon 297, 23 ER 480
Whitehead v Whitehead [2002] NSWSC 486, (2003) NSW ConvR 56-045PARTIES: Arrow Custodians Pty Limited - Plaintiff
Pine Forests of Australia Pty Limited - First Defendant
Ausforest Limited (In Liquidation) (Receivers and Managers Appointed) - Second Defendant
S J Parbery and A L Smith - Joint Trustees - ApplicantsFILE NUMBER(S): SC 6042 of 2005 COUNSEL: P M Wood and T Breakspear - Plaintiff and Second Defendant
B A Coles QC and I R Pike - First Defendant
G C Lindsay SC - Joint TrusteesSOLICITORS: Blake Dawson Waldron - Plaintiff and Second Defendant
Johnson Winter & Slattery Lawyers - First Defendant
Corrs Chambers Westgarth - Joint Trustees
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BRYSON AJ
Friday 15 August 2008
6042/2005 ARROW CUSTODIANS PTY LTD v PINE FORESTS OF AUSTRALIA PTY LTD
JUDGMENT
1 HIS HONOUR: On 19 April 2006 Young CJ in Eq made orders under s 66G of the Conveyancing Act 1919 and appointed Mr Parbery and Mr Smith, (the Trustees for Sale) as Statutory Trustees for Sale of the whole of the land in Lots 1, 4, 7, 8, 9 and 10 in Deposited Plan 264564. At the same time the Court ordered that the Registrar General was to cancel all certificates of title and register folios relating to the lots and create a new folio of the register to each of the lots showing the Trustees for Sale as registered proprietors. These lots, and other land nearby, were the subject of elaborate and (as time has shown) impractical arrangements to conduct pine plantations. These lots are situated in the Oberon distinct in New South Wales and are known as Hai Welyki. In earlier litigation Young CJ in Eq appointed Statutory Trustees for Sale of the adjacent Lot 3; Pine Forests of Australia Pty Ltd [2005] NSWSC 151 , 219 ALR 692. The Trustees for Sale have sold the land and now seek directions on a number of matters, and only one subject, a large subject, is in contention; entitlements claimed by PFA in its Notice of Motion, now its amended Notice of Motion of 29 July 2008.
2 Hai Welyki comprises approximately 1293.15 hectares of radiata pine forest. There are small discrepancies in statements of areas but it seems that the smallest lot is Lot 1, 205.20 hectares, Lots 7, 8, 9 and 10 are a little larger up to 208.30 hectares and Lot 4 is 255.35 hectares. The potential harvest values of timber vary greatly. In an estimate obtained by the Trustees for Sale the potential harvest value of Lot 1 was $1,282,048.00, of Lot 9 $387,028.00; and the others had intermediate values. The potential harvest value of timber contributed much more to the sale prices achieved by the Trustees for Sale than the unimproved value of the land, which was much the same per hectare for each lot.
3 For some years from about 1980 onwards interests in these lots and the plantations on them were sold to persons (I refer to them as investors) by Pine Forests of Australia Pty Ltd (PFA) and, for some of the land apparently including Lot 10, by Pine Forests of Australia (Canberra) Pty Ltd (PFAC). The interests in Lot 1 sold were undivided 500th interests as tenants in common. Investors bought one 500th interest in Lot 1. Lot 4 was divided into 250th interests and Lot 7 into 500th interests, Lot 8 into 510th interests, Lot 9 into 510th interests and Lot 10 into 100th interests. Some investors bought more than one share in one or several lots. Investors paid for their purchases and in most cases they received certificates of title for their interests. It seems that not all the shares were sold and many remain in the ownership of PFA or PFAC. So for each lot there is a shapeless group of tenants in common and each owns a share in the whole of that lot.
4 The Trustees for Sale were directed by the Court on 4 May 2007 to take steps to call for claims to entitlement to participate in distribution of the proceeds of sale. They posted notices to the last known addresses of many persons for whom they had addresses, they placed significant information on their firm's website, first on 27 April 2007 and further information later, and they published advertisements in newspapers, the Government Gazette and the Australian on 8 May 2007 and the Sydney Morning Herald on 7 and 8 February 2008. They received many responses. By 25 June 2008 the Trustees for Sale had received claims from 229 investors but had been unable to locate and had received no responses from 127 investors, who had held 211 shares in various lots, approximately 30% of all shares owned by investors when sale was ordered and 8.9% of all shares.
5 In Pt 4 D 6 Statutory trusts of property held in co-ownership of the Conveyancing Act 1919 Co-ownership and co-owner have the meaning defined by s 66F(1) and extend to ownership whether at law or in equity. Co-ownership rights which are given effect under the statutory trust for sale may be established by the state of the Torrens register at the time when trustees were appointed, but are not necessarily limited to those as there may be ownership interests in equity which differ from the registered interests.
6 Investors typically entered into management agreements for their shares; typically terms of the agreements for sale of land required them to do so. In the cases of sales by PFA Mr Alexander, who is now the principal of PFA, has put in evidence what he says were standard clauses which, in brief terms, gave PFA management powers which were to exist until a general meeting of investors made other arrangements; and Mr Alexander contended that no such meeting had ever been held. He is not in a position to give evidence on this subject on which I should rely, as he had no knowledge of events or affairs of PFA or of investors until he began to interest himself in 2001. Some contracts referred to in evidence appointed companies other than PFA as managers, in more or less detailed terms. According to the management contracts the ordinary rights of land owners were abnegated and investors left the management of their land, timber and affairs to the management companies. The management contracts were not uniform in their terms.
7 There does not seem to have been any overall arrangement which addressed in a clear or practical way the needs for management endeavour and revenue which would exist continuously during the 25 years or more which would have to pass to bring the plantations to maturity. Perhaps the contemplation was that husbandry and thinnings would produce sufficient revenue to pay for management and outgoings such a rates. Perhaps the contemplation was that the investors would pay management fees and the managers would attend to the necessary outgoings. No clear arrangements overall appear.
8 There was a need for continuous and appropriately talented management endeavour, with appropriate commercial motivations, for about a quarter of a century; the arrangements made (whatever they were, and that does not clearly appear) did not meet this need. A commercial endeavour more certain to fail would be hard to imagine. One key point of failure was that management was fractionated and there was no mechanism for the interests of all co-owners to marshalled and brought to bear, and another was that there was no clear or effective mechanism for management to receive a reliable stream of revenue before the trees matured. An expectation that revenue would be maintained by several thousand unrelated proprietors sending in small fragments of the money required would have been certain to be disappointed.
9 PFA went through various vicissitudes. At one time it was in receivership. In 2001, when Mr Alexander required control of it, it had been in the hands of an entrepreneur named Mr Roman Korduba who, Mr Alexander asserts, died in or around 1999. His affairs, or his estate’s affairs were in the hands of a Bankruptcy Trustee. PFA was in default on financing from National Australia Bank which held a fixed and floating charge over all its assets. Mr Alexander gained control, in measures completed in 2003, by arranging for the fixed and floating charge to be transferred by the bank to Strategic Resources (Aus) Pty Limited, a company controlled by Mr Alexander and his brother, and for the shares in PFA to be transferred by the Bankruptcy Trustee of the late Mr Korduba’s estate to Kommodore Developments Pty Ltd, which was controlled by Mr Alexander and his brother. Mr Alexander got such information as he did about of the late Mr Korduba’s estate and PFA’s affairs from Mr Korduba’s widow; she was not a director of PFA at the time of the handover, although Mr Alexander says that she had been at some time in the past. He received no significant records and in particular no books of account or financial statements; and it should be inferred that when Mr Alexander took over control PFA had not had such documents for some years; a practice which he has continued, so that PFA under his control still has no records of its financial dealings.
10 Ausforest Limited, the second defendant, is a company which had many other interests in the timber business, and appears to have acquired the interests of many individual investors; however details of the acquisitions do not appear and need not be investigated. Ausforest went into receivership and management under the control of Arrow Custodians Pty Ltd, the plaintiff, acting in the interest of N M Rothschild & Sons (Australia) Limited, which, directly or indirectly, had financed Ausforest. Arrow Custodians is the plaintiff, and Arrow Custodians and Ausforest represent the same interest for present purposes and had the same legal representation. PFAC took no active part in the present proceedings, except on one incidental matter which was resolved without judicial decision. Order 3 gives effect to this.
11 Mr Smith one of the Trustees for Sale gave evidence on affidavit narrating events in the trusteeship: the Trustees decided not to carry out harvesting activities, marketed the property and on 22 December 2006 sold it to Hume Forests Limited for $4.95m. The sale was completed and the proceeds now held amount to $4,549,050.73 (from which there will be further deductions for expenses since 1 July 2008). Mr Smith put forward calculations showing the Trustees’ proposed distribution methodology, which involves allocating the moneys available among the lots according to valuations of the timber on each lot and also of the land. No adverse observations were made to me upon the Trustees’ calculations and methodology and I regard them as appropriate. In their distribution methodology, if applied to the funds they now have in hand the amounts which would be distributed are, at the most:
Lot 1 - 500 shares - $2,705.78 each.
Lot 4 - 250 shares - $3,930.38 each.
Lot 7 - 500 shares - $1,620.37 each.
Lot 8 - 510 shares - $964.22 each.
Lot 9 – 510 shares - $800.99 each.
Lot 10 – 100 shares - $5,031.25 each.
12 When this is applied to the interests of investors as they were according to the Torrens register on 19 April 2006 the results are:
| Former owner of shares in Land | Value of shares | Proportion of total proceeds |
| Ausforest Limited (Receivers & Managers Appointed) (In Liq) | $1,350,585.83 | (%) 29.6 |
| Pine Forests of Australia Pty Ltd | $1,025,051.89 | 22.5 |
| Pine Forests of Australia (Canberra) Pty Ltd (In Liq) | $873,584.04 | 19.2 |
| Located Investors | $899,906.94 | 19.8 |
| Unlocated Investors | $399,921.75 | 8.8 |
13 The Trustees put before me for consideration their present intentions not to recognize three claims which have been made to them in correspondence. None of these claimants has applied to the Court in these proceedings or otherwise. PFA did not during the hearing before me make any submission relating to these claims.
14 Mr Stuart Henry, barrister of Adelaide, has put forward in correspondence the claim of Mrs Janetta Henry, who is his mother and is now 81 years of age, to be the equitable owner of four undivided 250th shares in Lot 4. In correspondence extending over many months Mr Stuart Henry put forward documents which show, in a fairly clear way, that Mrs Henry and her late husband William Nelson Henry agreed to buy a share as tenants in common from PFA by a contract in writing dated 23 June 1982. The contract provided for payment of the price of the land of $2400 by a deposit of $400 and payment of the balance of $2000 on completion which was to take place within 42 days. A Special Condition in Annexure A provided that sale was subject to the purchaser obtaining a loan for $2000, and other correspondence and documents produced by Mr Stuart Henry showed that that the loan was obtained, and that after several years it was repaid.
15 Condition 9 in Annexure A provided for the purchasers to execute a contract with United Tree Farmers Ltd to plant and grow trees; Mr Stuart Henry has produced documents which show that such a contract was entered into, also on 23 June 1982; and show later dealings under that contract. To a high probability, the balance of the purchase price was paid out of the proceeds of the loan within 42 days of 23 June 1982; or at some early stage. Whatever rights or obligations existed relating to management and the loan, the documents produced show that, as between Mr and Mrs Henry and PFA, the Henrys became the equitable owners of the land and entitled to transfer of title in 1982. Correspondence and other commercial documents at various times over many following years show that the Henrys were treated as if they were the owners of a share as tenants in common in Lot 4, although they never received a registered title. This correspondence comes not only from persons obviously closely associated with PFA, but also from other persons, including Ausforest, and strongly suggests that records of PFA existed in which the Henrys were treated as entitled to ownership.
16 Mr Stuart Henry has stated in correspondence that William Nelson Henry his father has died; but he does not give the date of that event. It is also stated that Mrs Janetta Henry is his sole residual beneficiary. If William Nelson Henry died before the application for appointment of Trustees for Sale his interest passed to Mrs Henry by survivorship; if he died afterwards she is entitled to his share as sole residuary beneficiary, subject to due administration of his estate.
17 Mr Stuart Henry speaks throughout of the contract as relating to four 250th shares of Lot 4. The copy of the contract which he has produced (Exhibit LAS9) does not bear this out as it is indistinct at the point which shows what share in Lot 4 was sold. Establishment that all the purchase price has been paid establishes entitlement of the purchasers in equity to specific performance, and their ownership in equity, falling within the definition of co-ownership. In my opinion it would be appropriate for the Trustees for Sale to admit Mrs Henry's claim, subject to these observations.
1. It must first be shown why it is contended that her interest relates to four 250th shares. Unless this is shown satisfactorily she should be treated as owning one 250th share in Lot 4.
3. Should the Trustees decide to accept her claim, they should give PFA one month’s notice in writing of their intention to act on that decision, so that PFA will have an opportunity to apply to the Court, in these proceedings, for directions.2. The date of death of William Henry Nelson should be shown, by production of a copy of probate or a death certificate or otherwise. If he died after the application for appointment of Trustees for Sale it should be shown by production of a copy of the grant of probate and will that Mrs Henry is his sole residuary beneficiary. If she is not, the executor should be treated as co-owner with her.
18 Until this controversy is finally resolved the Trustees should retain money representing four 250th shares in Lot 4 out of the part of the proceeds which would otherwise be distributed to PFA.
19 A claim has been made by Clairs Keeley Lawyers of Perth on behalf of Mr Peter Alex Turpin. Supporting documents include a copy of a contract in writing of 15 November 1984 between Mr Turpin and Donna Margaret Turpin his wife as purchasers and PFA as vendor for the sale of two 510th of shares in Lot 8 for $6,280. They also produced a copy of a letter acknowledging completion of payment of instalments, and a letter of 12 February 1990 from PFA to Mr Turpin enclosing forms of memorandum of transfer of the land in two certificates of title, volume 8610 Folio 181 to Mr Turpin and volume 8610 Folio 182 to Mrs Turpin. I make the assumption that each of those certificates of title relates to a one 510th undivided shares in Lot 8; I have not seen search material which shows whether this is correct, but if that assumption is correct Mr Turpin's claim should be acknowledged. Trustees for Sale should make attempts to contact Mrs Donna Margaret Turpin and ascertain whether she makes a claim. It is in my opinion altogether clear that they are equitable owners of shares which should be subtracted from interests of PFA in Lot 8. However before the Trustees for Sale make a distribution to them they should give PFA one month’s notice of their intention to do so, so that PFA will have an opportunity apply to this Court.
20 The Trustees have received a claim from Mr Stewart Dooley of Yokine Western Australia who claims that he purchased an interest in Lot 10 from PFAC on 21 February 1984. Mr Dooley produced correspondence from the year 1984 from PFA confirming that he completed payment for an interest in Lot 10. On 5 March 1984 PFA asked Mr Dooley to sign a transfer form. Although in correspondence of the Trustees for Sale Mr Dooley's claim is referred to as relating to two 100th shares in Lot 10 I have not seen either a copy of the transfer sent to him or any passage in the contract which he has produced which would identify what proportion of Lot 10 he bought. In other respects however there are clear indications that Mr Dooley is the equitable owner of the interest, whatever it was, which he agreed to purchase from PFAC. The Trustees should deal with his claim in a similar way as with Mrs Henry’s claim.
21 If Mrs Henry's claim is allowed and it is determined that she is entitled to four shares in Lot 4, the distribution to her will at the most be $15,723.12. If she is entitled to one share the maximum distribution will be $3930.38. If Mr and Mrs Turpin are each entitled to one 510th share in Lot 8, the maximum distribution to each will be $964.22. Any distribution to which Mrs Henry and the Turpins are entitled would come out of money otherwise to be distributed to PFA. If Mr Dooley is entitled to two shares in Lot 10 his interest is worth $10,063.60 at the most, from moneys which would otherwise be distributed to PFAC. The money amounts will be reduced by further expenses. Order 6 gives effect to what I have said.
22 Dr Peter Giblin of St Ives New South Wales has made a claim to the Trustees for Sale saying "This claim is in relation to unpaid contributions to the maintenance and repair of the boundary fence adjoining Portions 134 and 135 in the Parish of Duckmaloi County Westmoreland from May 1983 to May 2008. The half share of $12,500 is the basis of this claim." He has enclosed a quotation which seems to show that $1000 per annum would be a fair and reasonable cost for maintaining 1.4 km of boundary fence between Ginkin Station and "Radiata" Oberon over 25 years from 1983 to 2008; leading to a claim for half the product.
23 Later correspondence between the Trustees for Sale and Dr Giblin has not produced any particularity which would enable the fence to be identified as one bordering Hai Welyki. In any event the claim is so lacking in particulars that it should not be accepted. The Trustees for Sale do not propose to recognize Dr Giblin’s claim. I do not regard it as appropriate to direct them that they should. It would be appropriate for the Trustees for Sale to tell Dr Giblin that no claim will be recognized unless he establishes it in legal proceedings.
24 The first order claimed by the Trustees in their Notice of Motion relates to payments which they made when funds became available from the sale. They paid $190,600.17 to Arrow Custodians and N M Rothschild & Sons (Australia) Limited in repayment of funding which Arrow Custodians and related interests had earlier provided to the Trustees for Sale; this funding enabled them to carry on their trusteeship before proceeds of sale became available. I am satisfied that this was a proper expenditure and it has my approval.
25 When funds were available the Trustees also paid to Strategic Resources (Aus) Pty Ltd, a company associated with Mr Alexander $52,509.25 which Strategic Resources had paid to Oberon Council and the Rural Lands Protection Board. In November or December 2006 Strategic Resources paid to Oberon Council five years’ unpaid rates to avert an auction sale for unpaid rates which Oberon Council was then proceeding to conduct (as it was entitled to do). Later Strategic Resources paid further money for rates levied for 2006; and also paid rates to the Rural Lands Protection Board. The Trustees repaid the total of these payments to Strategic Resources. I am satisfied that this payment was appropriate.
26 Strategic Resources also paid $3,963 to Tableland Surveyors for work done after the appointment of the Trustees for Sale; they repaid this; this is not contentious and I regard the repayment as appropriate. I propose to make order 1 as drafted.
27 The claimed Order 2 was not contentious and related to a proposal by the Trustees about the basis on which they had come to agreement on quantum of legal costs with persons entitled to payment of costs under the order of 19 April 2006. Their proposal is reasonably based and has the advantage of avoiding expense and trouble in assessments of costs, and has my approval. The costs of PFAC were arranged between legal representatives during the hearing: my orders adopt this arrangement.
28 Another claim would give the Court's approval to part of the distribution methodology relating to the allocation of proceeds to each lot. Mr Smith's evidence shows in my opinion that the distribution methodology is correct in principle and reasonably based in fact. What Mr Smith has put forward is not contentious, and has my approval. Order 5 gives effect to this.
29 The Trustees also sought directions about the treatment of moneys to which investors who have not been located are entitled. The Trustees put forward some proposals in which money which is not claimed within 12 months after the general distribution would then be distributed among the investors who can be located and who have made claims. This does not have my approval because it is wrong in principle; owners of interests in land sold under s 66G have a legal entitlement to participate in the proceeds of sale; that entitlement must be respected and cannot be disregarded or made ineffective as a practical matter by disbursing the only funds out of which they could ever be paid. If ultimately moneys are unclaimed, the entitlement of the Crown is also a property right and should be respected as such.
30 The Trustees put forward several alternatives; payment into Court under ss 95 to 99 of the Trustee Act 1925, payment to the Public Trustee under s 47 of the Trustee Act 1925 and payment to the Chief Commissioner of State Revenue under the Unclaimed Money Act 1995. I do not regard it as appropriate that the money should be paid into Court or paid to the Public Trustee; that could only pass the Trustees' responsibilities to a new custodian, involving expense. A new custodian would not have the knowledge that the present Trustees have gathered. In my view the present Trustees should remain responsible for the moneys. They should advertise widely, on terms which I will settle if they ask, and the advertisements should contain a list of the names of the persons possibly interested. They should resolve any claims that come forward, approaching the Court for directions if any of the claims give rise to doubt or difficulty, and when four years have passed from 19 April 2006 they should proceed under the Unclaimed Money Act. Four years is a short period for a time bar for an interest in real property, but there were many years of inactivity before the Trustees were appointed, and there will still be some room for claims. Order 8 gives effect to this.
31 PFA made a number of claims under its Notice of Motion, some of them in extravagant terms. The Trustees for Sale have not been commissioned to resolve all legal and equitable claims among persons interested in Hai Welyki. The Trustees for Sale hold the proceeds of sale pursuant to the Statutory Trust for Sale defined in s 66F(2)(a) in these terms:
- (2)(a) Property held upon the “statutory trust for sale” shall be held upon trust to sell the same and to stand possessed of the net proceeds of sale, after payment of costs and expenses, and of the net income until sale after payment of costs, expenses, and outgoings, and in the case of land of rates, taxes, costs of insurance, repairs properly payable out of income, and other outgoings upon such trusts, and subject to such powers and provisions as may be requisite for giving effect to the rights of the co-owners.
32 What the trustees are to do with the net proceeds of sale falls into four parts:
- - payment of costs and expenses
- payment of the net income
- payment of other outgoings
- holding net proceeds on such trust as may be requisite for giving effect to the rights of the co-owners.
33 The provisions about net income until sale extend to the words “in the case of land, the rates, taxes, cost of insurance, repairs properly payable out of income” and all go to ascertaining what is the net income until sale. In the present case it is very unlikely that there was net income until sale, and in giving effect to the rights of co-owners the right to income is not different to the right to capital; so the provision about net income until sale, and the references to rates, taxes, costs of insurance, repairs properly payable out of income have no present importance. The trust to hold net proceeds after payment of “other outgoings” confers a wide authorisation to pay outgoings, but the authorised outgoings relate to what the trustees are required to do under the trust; they must relate to the project of realisation in which the trustees are engaged.
34 The end point of the definition is that the trustees hold net proceeds upon such trust as may be requisite for giving effect to the rights of the co-owners. The rights of the co-owners are legal or equitable interests in land which have been converted into equitable interests in a fund. The rights of the co-owners do not in my opinion include equitable or legal claims for money payments which co-owners have against each other. Claims like those are not interests in land or aspects of ownership. If one co-owner has a mortgage, or a charge of any kind legal or equitable over the interests of another co-owner which is an interest in land, that is to be given effect under the statutory trust for sale. If a co-owner has a legal or equitable claim against another co-owner for debt, for contribution to a shared obligation which has been discharged or any other claim other than an interest in land, the statutory trust does not give effect to it. See Re Fettell (1952) 52 SR (NSW) 221, Whitehead v Whitehead [2002] NSWSC 486, (2003) NSW ConvR 56-045.
35 It often happens that the Court decides on entitlements between co-owners in proceedings in which property has been or is to be sold under s 66G and the Court is in control of funds in which the co-owners have interests. Where there are two or three co-owners it is usual and appropriate for the Court to decide on any equitable or legal claims between them without paying close regard to whether the Court has gone past enforcement of the statutory trust for sale under ss 66F and 66G and is using its control over funds to enforce rights of other kinds; abridging processes of accounting and execution by directing how funds under its control are to be distributed. If there are enough funds it matters little whether in requiring discharge of a liability out of what would otherwise be distributable entitlement under s 66G the Court is giving effect to an interest in land, or to a personal claim; or to a constructive trust.
36 The present facts do not have the simplicity which would enable justice to be administered in that way. It is I think open to me to give directions to the Trustees for Sale on the footing that the trustees are to do no more than make a distribution which will give effect to the rights of the co-owners in the land; that is, distribute the net proceeds according to their proportionate interests by Mr Smith’s distribution methodology. Unless PFA can show that the interests of all co-owners are subject to a charge or constructive trust in favour of PFA I should direct the trustees to distribute the net proceeds and leave PFA to bring whatever proceedings it regards as appropriate against such of the co-owners as PFA wishes to establish an entitlement against.
37 Senior counsel for PFA undertook the task of seeking to bring the claims which PFA makes under the rubrics of constructive trust and of claims for contribution subrogated to charges formerly held by public authorities for payment of rates. It would not be enough to show that some co-owners or for that matter all co-owners have incurred personal liabilities for payment of money.
38 The holdings of the majority of the Court of Appeal in Forgeard v Shanahan (1994) 35 NSWLR 206 relate to adjustment of competing claims between two co-owners of a house property after a sale under s 66G. The facts of that case were inherently much simpler than the facts before me, as there were only two co-owners and a relatively small number of claims. The principal subject of Forgeard v Shanahan and of the extensive examination of authorities undertaken by Meagher JA was the entitlement or lack of entitlement of a co-owner out of occupation against a co-owner who continued in occupation of a house property. The present case does not present such a problem; there is not a competition between a co-owner who has been in occupation and one who has not. The concept of rental value has no application here. In Forgeard the Court of Appeal considered claims for adjustment in respect of mortgage repayments, including reduction of capital debt, water rates, insurance and pest control; these have no parallels here; and also for Council rates; and there is such claim here.
39 Meagher JA made a full survey and an extensive statement of principles; Mahoney JA agreed in the principles so stated; see 219. I am bound by those principles so far as now applicable. Meagher JA’s main subject was the remedies at law of a co-owner out of occupation against a co-owner who is in occupation; and when Meagher JA also considered equitable entitlements he made that clear, as at 222.
40 Meagher JA dealt rather lightly with the state of 17th-century opinion in Chancery on adjustment between co-owners. Meagher JA referred only to Strelly v Winson (1684) 1 Vernon 297, 23 ER 480, a decision of North L.K. Anonymus in Chancery, Skinner 230 (not 205 as it is sometimes given) 90 ER 106 was identified with Strelly v Winson in Horn v Gilpin (1755) Ambler 255, 27 ER 17 in a note by the reporter Ambler who gave reasons for not accepting the report of Strelly v Winson in Vernon on rights among partners in a ship. In the report in Skinner a similar proposition about accounting for profits among tenants in common is attributed to North LK. As Hodgson JA pointed out in Ryan v Dries [2002] NSWCA 3 [63 and following] there is further material to like effect in the Prolegomena published as “Lord Nottingham’s ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’, Cambridge University Press (1965) at 213 para [3] which commences “3. If one jointenant takes all the profits, his companion may sue him in Equity, for in conscience he hath right but to a moiety”. Lord Nottingham went on to discussion and authority for and against this proposition and concluded: “Now Equity construes all receipt to the common profit, and that without great strain”. Lord Nottingham should be understood to have been speaking of joint tenancies of an equitable interest, or some relationship among the parties which brought adjustment of their rights into Chancery. The Statute of Anne to which Meagher JA referred to his principle 6 seems to have enacted the same rule for co-ownership in common law, with a common law remedy. If the true position is that there is something further to say about adjustment between co-owners in equity than Meagher JA said, that does not apply here because the relationship among the tenants in common in the present case is legal and not equitable.
41 In principle 16 at 224 Meagher JA stated clearly the distinction between an equitable entitlement to contribution where a co-owner pays rates in full, distinguished from a right which arises under the law of property. Payment by one co-owner of all the municipal rates had been treated by the Trial Judge as giving rise to an allowance of half the amount paid against the co-owner who had not paid, and Meagher JA approved of this: 225P. However later at 225F Meagher JA pointed out the distinction between a claim for contribution and the claim in a s 66G case, referred to by Meagher JA as a partition action, and this did not limit his consideration to enforcement of s 66G. This outcome was contributed to by the form of the appeal in which the defendant had not cross appealed; but to my mind also shows approval of the trial judge’s having made adjustments which went beyond the enforcement of s 66G; in my interpretation, because of pragmatic considerations which do not exist in the present case.
42 It is quite impossible in the present facts to ascertain which co-owners should pay what contribution to rates paid by PFA. PFA has not proved that it paid rates; it has asked the Court to make heroic assumptions favourable to PFA. There is no way of knowing whether any and which co-owners have paid anything towards rates, to PFA or in some other way; the information is not available, but it is highly unlikely that none of them paid anything at all over several decades. It would not be just to make an order against all co-owners on the adverse assumption that all were liable to PFA on the highest conceivable basis.
43 There is no element in the present case like one which received consideration in Forgeard, of one co-owner having made improvements to the property for which an allowance should be brought into account in adjusting some other matter among co-owners. It is not possible in my opinion to interpret any of the expenditures which PFA claims to have made as effectuating an improvement. The next step of enquiring into the present value of the improvement cannot begin.
44 It was also contended that the work and expenditures which PFA is alleged to have carried out and the expenditures it is alleged to have made entitle PFA to a constructive trust over Hai Welyki generally; it was contended that this result is supported by Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137.
45 Muschinski v Dodds is an obscure decision because of division of opinion, but the exposition by Deane J (with whom Mason J. agreed) of the function of constructive trusts has been very influential: see 612 and following. The authority of Deane J’s views was established in Baumgartner v Baumgartner (1987) 164 CLR 137; see 148 (Mason CJ Wilson and Deane JJ). The present state of opinion on one situation where constructive trusts are enforced follows Deane J in the passage commencing at 618 and leading to the following statement at 620: “… the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour could otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him to do so: cf Atwood v Maude (1868) LR 3 Ch. App. 369 at 374-375 and per Jessel MR, Lyon v Tweddell (1881) 17 ChD 529 at 531.”
46 This principle is well established; including its invitation to litigants to attribute blame to their opponents, a task often undertaken with enthusiasm.
47 On the present facts there is no element of a failed common endeavour among all the co-owners for which PFA has contributed money or property and other parties have been advantaged in a way which was not intended or provided for after the substratum was removed.
48 Senior counsel for PFA referred me to a number of other authorities which he contended show instances in which a co-owner had been awarded some compensation or like benefit; but in my view no useful analogy with the present case was ever presented.
49 The claims of PFA which I was ultimately asked to adjudicate are these:
- 2. PFA claims priority payment out of the Sale Proceeds for the following sums of money:
- (a) Since 1980, PFA has paid Council Rates of $77,425.96 on behalf of all Co-Owners. (Further Amended Notice of Motion – 1(d))
- (b) Since 1980, PFA has paid rates of $24,164.84 to the Rural Land Protection Board on behalf of all Co-Owners. (Further Amended Notice of Motion – 1(c))
- (c) Mr Alexander of PFA performed services for the benefit of all Co-Owners prior to the appointment of the Trustees and in respect of which PFA owes a debt of $313,386.50 in the form of unpaid wages to Mr Alexander and secretarial expenses paid by PFA to Ms Capp (Further Amended Notice of Motion – 1(f))
- (d) Following the appointment of the Trustees, Mr Alexander performed services at the request of and/or for the benefit of the Trustees as well as all Co-Owners, and in respect of which PFA owes a debt of $113,406.36 in the form of unpaid wages to Mr Alexander (Further Amended Notice of Motion – 1(e))
- (e) PFA incurred expenses of $9,438.40 to RAD Consulting for work carried out by RAD to assist PFA to obtain the details of co-owners – this work was for the benefit of the Trustees and all Co-Owners (Further Amended Notice of Motion – 1(a))
- (f) PFA incurred a debt of $16,500 in the form of unpaid wages to Mr Alexander for the performance of services requested by the Trustees.
50 Claim (a) refers to rates levied by Oberon Council for years up to 2001. As the auction threatened for December 2006 related to five years’ Council rates, which were then paid, it can be inferred that rates levied for years up to 2001 (or perhaps 2000) have been paid by someone. As I have stated elsewhere, PFA has no records or books of account which show that PFA has made such payments. This claim is built very largely on the fact that information has been furnished by Oberon Council to the effect that PFA was recorded as the person to whom rate notices were to be directed as owner from 1983 onwards. Council also stated that until then rate notices were directed to a different company; this disposes of any support Council’s information might give to a claim for earlier years. I am unable to see (and I was not told) why Council would have directed rate notices to one of many registered proprietors of the land; that was irregular, but it may represent some pragmatic arrangement. It in no way it follows from the fact that rate notices were sent to PFA that it should be inferred that they were all paid in full by PFA, and paid out of its own funds. At times (which cannot be distinctly identified) when several companies were operating and had management functions on behalf of various investors, it is highly unlikely that PFA would, for many years, pay rates without attempting to recover appropriate contributions from investors and other managers; and also highly unlikely that those attempts would have been entirely unsuccessful. If and in so far as PFA had management functions (and it appears clearly that there was no time when PFA had management functions for all investors) it is extremely unlikely that PFA would, for years on end, not collect contributions from investors towards outgoings such as rates, or make efforts to collect contributions which are unlikely to have been completely unsuccessful. There was also room, and occasional references (in no way systematic) in the evidence, for opportunities to raise revenue by selling thinnings and perhaps other timber; thinnings would arise in the ordinary course of good husbandry of a pine plantation, and would have some value. A finding that PFA paid all the rates out of its own funds could only be made by making inferences favourable to PFA on all these possibilities; and there is no rational basis for doing so. Nor is there any rational basis for deciding that PFA paid some ascertainable part in circumstances in which any co-owners are obliged to contribute: let alone that all co-owners are obliged to contribute. The investors are a changing body, changing as sales proceeded. They do not all have the same responsibility for municipal rates.
51 If the true position was that PFA was incurring charges for significant amounts of money for rates, year in and year out, in respect of which it had an entitlement to repayment from anyone, it would be good commercial practice and common prudence and it could be expected as a matter of probability that PFA would maintain accounting records which would show the liabilities due to it. In the absence of any such records, I do not infer that such liabilities were, in the understanding of PFA, accumulating. Liabilities of these kinds which were accumulating, under express or implied terms of management arrangements between PFA and those investors from whom it held management authority, would give rise to claims in debt which would be extinguished with the passage of time; all such obligations incurred up to 2001 would now be time-barred. The existence of management arrangements for some investors makes it impossible to interpret payment of rates by PFA as made on behalf of the whole body of investors generally, even if it were in some way established that PFA did pay rates. I see many reasons why this claim cannot be upheld, but the most potent reason is that the claim is not supported by credible evidence that PFA paid the whole amount of the rates. It is very unlikely that PFA paid all the rates. It is on the whole likely that PFA did pay some rates, but it is not known whether it did so with its own money, or out of funds which came to it in its management function or in some other way. The claim put forward, to the effect that PFA should recover all rates that were levied, does not have a reasonable basis.
52 Municipal rates on land can be seen as a charge on land, having regard to the powers of enforcement which local government legislation has given to municipal councils. The interpretation is a little strange, but the power of sale appears to bring under consideration whether any entitlements to subrogation arise in which a person who is not primarily liable and pays off a mortgage is treated as subrogated to the rights of the mortgagee. As the underlying facts have not been proved, I cannot pursue this line of reasoning to a conclusion.
53 Claim (b) relates to Rural Lands Protection Board rates and suffers all the shortcomings of the claim to municipal rates, and a further shortcoming on the terms of the legislation relating to Rural Lands Protection, which did not give the Board a charge except where judgment for unpaid rates had been obtained, and which did create a right of contribution among co-owners, giving rise to debt claims for contribution to unpaid rates which would now be time-barred. I would not allow any part of claim (b).
54 Claim (c) relates to services performed by PFA, in the person of Mr Alexander, prior to the appointment of the Trustees, alleged to have been for the benefit of all co-owners. There is no contractual basis for this claim; there was no event or circumstance which could be interpreted as a request or authorisation on behalf of all co-owners for services to be performed. The activities of PFA and of Mr Alexander before the appointment of the Trustees were fully and sufficiently motivated by the commercial endeavour engaged in by PFA, and by Strategic Resources, which were emanations of Mr Alexander's economic interests in a significant proportion of all interests in Hai Welyki; an altogether sufficient motivation for whatever steps were thought suitable to maximise its value. If it had been shown that work done by and for PFA had the effect of enhancing the value of the interests of others, there is in my opinion no legal basis or ground, or good reason why those others or the general body of co-owners should be compelled to pay for what was done.
55 There are other difficulties with this claim. As cross-examination showed fully, there were no clear arrangements between Mr Alexander and FPA under which FPA incurred liability to Mr Alexander to pay sums now claimed; there were purported arrangements, but the claim does not conform to them, and steps which would have been taken if PFA genuinely treated Mr Alexander as an employee with a large and growing entitlement to unpaid wages were not taken; no records of his entitlement were maintained, no accounts showing his accumulated entitlements were kept, annually or otherwise, and no legal obligations relating to employment such as obtaining workers compensation insurance were complied with. Except in the claims which PFA made against the Trustees for Sale, which take several forms, there are no emanations whatever of any entitlement of Mr Alexander or obligation of PFA, and it is not possible, in the world of practicalities, that Mr Alexander, in his complete control over PFA, would ever pay himself any such wages as now claimed in any circumstances other than that the claim against the Trustees succeeded. In my finding the claim is fictitious.
56 This claim was the subject of marked reduction and revisions. In its final form found in Exhibit 1 Document ZA 7 it is a table of many hundreds of entries of attendances by Mr Alexander from 22 September 2001 to 19 April 2006, all of which were charged at the rate of $185 per hour, explained by reference to charging for Mr Alexander's time at a rate appropriate for a professional engineer; but applied uniformly to attendances not requiring any professional skill. Not all of these attendances are claimed; the attendances claimed were those marked A, B, C and D in the left-hand margins of Exhibit ZA7.
57 Category A for which the charges amount to $10,075.98 refers to work undertaken for the purpose of preventing sale of portions of land by Oberon Council because of failure of co-owners to pay outstanding rates. These attendances extend over the years 2003, 2004 and 2005, and were brought to a substantial (not a complete) end when Strategic Resources paid five years’ rates in or about November 2006. It is difficult to categorise all attendances under Category A but they appear to include every attendance relating in any way to dealings with Oberon Council which were in any sense connected with rates. Bearing in mind that PFA was itself at least in part liable for rates, and had left rates unpaid some years, it is not possible to understand why the subject required so much pains and trouble. However that may be, the attendances were plainly undertaken in the interests of PFA. I see no ground on which PFA can ask anyone else to pay for them or contribute towards them.
58 Category B relates to tasks undertaken for the purpose of ascertaining the extent of harvesting timber from the land by Ausforest and by the Receivers and Managers appointed to Ausforest, and to prevent such harvesting. The amount claimed is $81,615.00. Ausforest through a contractor engaged in thinning timber from the land for several years, and this continued for a short time after the receivership of Ausforest commenced. Ausforest collected the proceeds of thinnings. As Ausforest was a co-owner of the land I am unable to see why Ausforest was not entitled to harvest timber, or why its activities were, as Mr Alexander asserted in oral evidence, illegal. Those activities were manifestly adverse to the interests of PFA as a co-owner, and activity directed to discouraging or preventing them is commercially understandable. However interpretation of that activity as something for which co-owners generally ought to pay PFA has no basis, in my opinion. The activity and the expense incurred is explained, satisfactorily and completely, by PFA’s self-interest.
59 Category C relates to tasks undertaken to procure aerial photography to achieve the purpose in Category B. The amount claimed is $6,656.26. As for Category B, its correct and only interpretation is that the tasks were undertaken by PFA in pursuit of its own economic interests.
60 Category D relates to tasks undertaken to achieve registration under Managed Investment Scheme provisions of the Corporations Act 2001 (Cth). The amount claimed is $181,024.38. Mr Alexander's evidence shows that he made considerable efforts directed to persuading ASIC to treat the interests of all concerned in Hai Welyki as a Managed Investment Scheme, but was unable to do so, for the reason stated on behalf of ASIC that there was no authorisation on behalf of all investors supporting a Managed Investment Scheme. The endeavour produced no result; there was no registered Managed Investment Scheme and no benefit to co-owners. The claim under Category D has even less justification than the claims under A, B and C in that there is no basis for any conclusion that the work contributed in any way, however indirect or difficult to measure, to the value of interests of co-owners generally. A well-considered address to serving the interests of co-owners generally, with the aid of competent legal advice, should have led at a fairly early stage, much earlier than the events which happened, to an application to the Court for some remedy which would wind up all investments in Hai Welyki, such as sale under s 66G. Well-considered legal advice would probably have produced that or some such solution well before 2006, an illustration of the disadvantages of relying excessively on a professional engineer for management of problems of these kinds.
61 The balance of Claim (c) to $313,386.50 relates to moneys paid to Ms Capp for secretarial services associated with work performed by Mr Alexander. As there is no basis for allowing for Mr Alexander’s work, I will not allow expense, in whatever amount was in fact incurred, for secretarial work by Ms Capp.
62 Claim (d) relates to services allegedly performed at the request of and/or for the benefit of the Trustees as well as all co-owners, and is a claim for $113,406.36. This relates to work calculated in document ZA part of Exhibit 2 and lists work which it was claimed Mr Alexander performed for which he was entitled to be paid by PFA from 22 April 2006 to 21 December 2007. The secretarial charges appear to be those listed at page 24 of Document ZA 2 relating to secretarial costs paid to or on behalf of Macquarie Capp from 2003 to 2006 totalling $34,004.68. As originally brought forward Exhibit ZA was a claim for charges totalling $178,505.04 for Mr Alexander's attendances in 2006 and 2007 and an additional charge of $90,835 for preparing a detailed Bill of costs; this figure appears, differently supported, at pages 23 and 33 of Document ZA2 but is charged only once. It is then said that preparing the detailed Bill of Costs engaged Mr Alexander for 491 hours.
63 However the charges were rated down by a process explained in Mr Alexander's affidavit of 25 July 2008 so as to make charges related to hourly rates of $115.70 per hour in 2006 and $127.27 per hour in 2007 , so that the claim became $113,406.36 (plus interest $93,977.33 accrued in 2006 and $19,429.03 accrued in 2007).
64 In his affidavit of 25 July 2008 para 25 Mr Alexander stated "The tasks that I performed fell into among others the following broad categories:
a. Assisting the Trustees with compiling a list of names and current addresses of all Co-Owners of the Land.
b. Obtaining a sub-division approval for the Land.
c. Formulating a method for ascertaining and arriving at an assessment of the respective interests of each Co-Owner in the Land and formulating a method for the distribution of the Sale Proceeds to the Co-Owners which was passed on to the Trustees.
e. Engaging in numerous discussions with the Joint Trustees and providing them with information concerning the pine forests act Hai Welyki which was necessary to enable them to properly carry out their duties as trustees of the Land (all Second Outcomes).d. Formulating a submission to the Joint Trustees setting out the areas of Land harvested by Ausforest and the Ausforest Receiver and the effect his harvesting had on the value of the Land to the (other) Co-Owners.
65 In his affidavit of 10 July 2008 Mr Alexander set out the acts and events which he put forward as constituting requests by the Trustees for the performance of his work. In summary they are these. About mid-April 2006 he was requested by Mr Teroxy to attend a meeting with the Trustees and told "We’ve got to organise a meeting with you and the Trustees. You should be introduced. They know nothing about the land at Hai Welyki and its history. You should fill them in". Then he was sent a letter which enclosed or consisted of a list of "issues for discussion with PPB" prepared by Mr Teroxy, who he understood was contracted to Arrow Custodians "for the purpose of realising its security over the land". Mr Teroxy's 18 items for discussion included "15. Zenon Alexander is the most intimately knowledgeable person re the plantation … if the Trustees wish to retain his expertise … a suitable remuneration will need to be negotiated … and agreeable to all the stakeholders". Then Mr Alexander had a meeting with the Trustees and Mr Adrian Parker who then worked for them on 27 April 2006 and told them what he considered it was necessary for them to do to discharge their functions properly, including telling them they needed to locate the names and addresses of all the co-owners: no great insight. He said that he had conducted preliminary investigations by speaking to Mr Dechnicz of RAD Consulting – “I conducted these investigations on the expectation that I would become the trustee … I am able to assist if you require my services. I can also give you the information that I have already located”. Mr Parbery one of the Trustees said "I agree, we need to have the addresses of co-owners. We are leaving the day today carriage of the matter to Adrian Parker who will liaise with you." He had further communications and was asked by letter to provide what information or records he may have in his possession relating to investors; and over some months he did so. Significantly Mr Teroxy’s item 15 did not lead to negotiation of remuneration for Mr Alexander, still less to agreement on remuneration.
66 Nothing in the circumstances constitutes grounds for an implied promise to pay PFA or Mr Alexander for assisting the Trustees. The circumstances could not be objectively understood as indicating that work PFA or Mr Alexander did would be done for the Trustees and they would have to pay for it. PFA could only be understood as pursuing its obvious interest in maximising realisation and distribution in which more than twenty per cent of all funds distributed would come to PFA. No express or implied contract, and no quasi-contract or restitutionary claim, has any basis in the facts.
67 Claim (f) is a claim for the cost of preparing a log of claims which Mr Alexander submitted in response to a request by the Trustees that he state what his claim was. $16,500 is alleged to represent the cost of Mr Alexander's time and attention in preparing the log of claims. There are no circumstances from which it could be concluded that the Trustees impliedly promised to pay PFA the cost of preparing PFA’s claim. Generally, the proposition that, in the absence of some express arrangement, a person making a claim against a fund is entitled to be paid to do so has no justification. It could not be said that PFA as a claimant had any basis for understanding that it would be paid for making a claim. Receivers, Bankruptcy Trustees, Trustees for Sale and Trustees generally have many occasions to ask people why they make claims against them; the proposition that the persons who make claims are to be paid for doing so, in the absence of some explicit arrangement, is manifestly groundless. In the circumstances the fact that the log of claims submitted was so poor that it was later abandoned seems to lose some of its force; but the force of that fact is great.
68 For these reasons the Trustees should not pay any of PFA’s claim and I will direct them not to do so.
69 Orders:
Upon the Notice of Motion filed on 12 October 2007 by Stephen James Parbery and Andrew Leslie Smith:
1. Order that the payment by Andrew Leslie Smith and Stephen James Parbery (together, Joint Trustees) of each of the amounts described in paragraphs 1(a), (b) and (c) be confirmed.
(a) $190,600.17 to Arrow/N M Rothschild & Sons (Australia) Limited in repayment of funding provided to the Joint Trustees; and
(b) $52,509.25 to Strategic Resources (Aus) Pty Limited in respect of amounts paid by it to the Rural Lands Protection Board and Oberon Council, after the date of the appointment of the Joint Trustees; and
(c) $3,963.00 to Strategic Resources (Aus) Pty Limited in respect of amounts paid by it to Tableland Surveyors, after the date of the appointment of the Joint Trustees.
2. Order that the Joint Trustees be at liberty to pay, in full and final settlement of any claim for legal costs arising out of the proceedings in which the Joint Trustees were appointed by Ausforest Limited (Receivers and Managers Appointed) (In Liquidation) and Pine Forests of Australia Pty Limited (PFA), the high range estimates by the Joint Trustees’ costs consultant of the likely costs recoveries for those claims.
3. Order that the Joint Trustees be at liberty to pay, in full and final settlement of any claim by Pine Forests of Australia (Canberra) Pty Limited (In Liquidation) for legal costs arising out of the proceedings in which the Joint Trustees were appointed, the sum of $9,996.42 inclusive of GST (being one half of the sum of $19,992.84 claimed in the Bill of Costs admitted into evidence as Exhibit B).
4. Direct that the Trustees not pay any of the claims notified by Pine Forests of Australia Pty Limited, other than the claims confirmed by Order 1.
5. Orders that the Joint Trustees be at liberty to distribute the proceeds of sale of the Land according to the following relative value of each lot:
Lot 1 0.2752
Lot 4 0.2130
Lot 7 0.1753
Lot 8 0.1165
Lot 9 0.1012
Lot 10 0.1187
6. Direct that the Trustees proceed to consider and determine the claims of Henry Turpin and Dooley in accordance with the reasons published by the Court; with liberty to apply for further directions if the Trustees consider that there is any doubt or difficulty.
7. Direct that the Trustees proceed to distribute the net proceeds of sale after payment of costs and expenses in accordance with the distribution methodology stated in the evidence of Andrew Leslie Smith: but that they retain the part of the net proceeds attributable to the interests of unlocated investors.
8. Direct that the Trustees apply the part of the net proceeds attributable to the interests of unlocated investors to meeting such claims as may be established on or before 19 April 2010: and deal with any amount then unclaimed in accordance with the Unclaimed Money Act 1995: that in the meantime they take steps to advertise and otherwise make publicly available information about the possibility of claims and the names so far as known of unlocated investors: with liberty to apply for directions.
9 Dismiss the Notice of Motion.Upon the First Defendant’s Amended Notice of Motion filed on 29 July 2008
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