Boyd v Thorn

[2017] NSWCA 210

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Boyd v Thorn [2017] NSWCA 210

Hearing dates:

11 May 2017

Decision date:

23 August 2017

Before:

Macfarlan JA at [1];
Leeming JA at [63];
Emmett AJA at [191]

Decision:

1. Appeal allowed in part.

 

2. Set aside order 6b made on 22 September 2016.

 

3. Otherwise dismiss the appeal.

 4. Mrs Boyd to pay Mrs Thorn’s costs of the appeal referable to ground 1. Mrs Thorn to pay Mr Boyd’s costs referable to ground 2. Mr and Mrs Boyd be jointly and severally liable to pay Mrs Thorn’s costs referable to ground 3.

Catchwords:

LAND LAW – appellants tenants-in-common of real property – equitable tracing by respondent – findings that first appellant guilty of unconscionable conduct and breach of fiduciary duty – second appellant only made a party to the proceedings after those findings had been made – whether the second appellant could challenge respondent’s standing to apply for orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the property –whether findings of breach of duty and unconscionability made against the first appellant binding on second appellant

 

ESTOPPEL – circumstances in which parties are bound by issue estoppels – consideration of principles of privity of interest where current party not a party to earlier proceedings – Tomlinson v Ramsey Food Processing (2016) 256 CLR 507; [2015] HCA 28 – second appellant did not have any legal interest in outcome of earlier proceedings nor later acquire a legal interest affected by an estoppel connected to the earlier proceedings

LAND LAW – whether costs of litigation may be ordered to be paid to incumbrancee out of co-owner’s share of the proceeds of s 66G sale – whether appropriate for co-owners to share costs and expenses for s 66G sale where sale caused by wrongful acts of one co-owner

Legislation Cited:

Chancery Amendment Act 1852 (15 & 16 Vic c 86)
Civil Procedure Act 2005 (NSW), ss 56, 60, 112, 113
Common Law Procedure Act 1899 (NSW), ss 41-45
Consolidated Equity Rules 1902 (NSW), Pt VIII, rr 101-112
Conveyancing Act 1919 (NSW), ss 7, 66F, 66G
Evidence Act 1995 (NSW), s 91
Judgment Creditors’ Remedies Act 1901 (NSW), s 13
Judgments Act 1838 (1 & 2 Vic c 110), s 13
Magna Carta c 9
Real Property Act 1900 (NSW), s 97
Supreme Court of Judicature Act 1873, sch 1, r 9
Supreme Court Rules 1970 (NSW), Pt VIII, r 7
Uniform Civil Procedure Rules 2005 (NSW), rr 6.23, 6.28, 36.16, 51.53

Cases Cited:

Arinson Pty Ltd v City of Canada Bay Council [2015] NSWCA 199
Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2008] NSWSC 839; 14 BPR 98,326
Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588; [2000] HCA 25
Barnes & Co Ltd v Sharpe (1910) 11 CLR 462; [1910] HCA 26
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Black v Garnock (2007) 230 CLR 438; [2007] HCA 31
BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216
Brady v Stapleton (1952) 88 CLR 322; [1952] HCA 62
Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5
Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425; [2015] HCA 2
Chappuis v Filo (1990) 19 NSWLR 490
Chaudhary v Chaudhary [2016] NSWSC 1423
Corin v Patton (1988) 13 NSWLR 15
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630
Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732; [2016] NSWCA 81
Gerard Cassegrain & Co Pty Ltd v Cassegrain (2013) 87 NSWLR 284; [2013] NSWCA 453
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Hall v Richards (1961) 108 CLR 84; [1961] HCA 34
Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266
In Re Hallett’s Estate; Knatchbull v Hallett (1879) 13 Ch D 696
James v Surf Road Nominees Pty Ltd [No 2] [2005] NSWCA 296
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Lu v Heinrich [2014] NSWCA 349; 68 MVR 277
Lyons v Lyons [1967] VR 160
Malamit Pty Ltd v WFI Insurance Ltd [2017] NSWCA 162
Mastronardi v New South Wales [2007] NSWCA 54
Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR 112
Mitrovic v Koren [1971] VR 479
Osborne v Smith (1960) 105 CLR 153; [1960] HCA 89
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Pralle v Scharka [1978] 2 NSWLR 450
Quinn v Leathem [1901] AC 495
Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34
Re Fettel (1952) 52 SR (NSW) 221
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Ross v Ross [2010] NSWCA 301; 15 BPR 28,945
Secretary, Department of Social Services & Commonwealth of Australia v Cassaniti [2015] NSWSC 1586
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462
Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28
Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492; [1910] HCA 44
Werderman v Société Générale D’Électricité (1881) 19 Ch D 246
Wright v Gibbons (1949) 78 CLR 313; [1949] HCA 3

Texts Cited:

C Johnston Edwards, The Law of Execution upon Judgments and Orders (London, Stevens and Sons, 1888)
E Sykes “The Effect of Judgments on Land in Australia” (1953) 27 Australian Law Journal 306
E Sykes, “The Effect of Judgments on Land in Australia” (1953) 27 Australian Law Journal 226
R Walker, The Practice of the Supreme Court of New South Wales at Common Law (Law Book Co of Australasia, 4th ed 1958)
W Cornish et al, Oxford History of the Laws of England (Oxford University Press, 2010), Vol XI
W Parker, The Practice in Equity (Law Book Company of Australia, 1930)

Category:

Principal judgment

Parties:

Ian Geoffrey Boyd (First Appellant)
Dawn Kathleen Boyd (Second Appellant)
Catherine Margaret Thorn as executor of the Estate of the late Betty McAuley (Respondent)

Representation:

Counsel:
T A Alexis SC / S A C Patterson (Appellants)
A J McInerney SC / V R Brigden (Respondent)

  Solicitors:
Hazan Hollander Lawyers (Appellants)
Shaw McDonald Lawyers (Respondent)

File Number(s):

CA 2016/287668

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2016] NSWSC 1344

Date of Decision:

22 September 2016

Before:

Sackar J

File Number(s):

SC 2011/91377

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellants, Mr Ian and Mrs Dawn Boyd, are the registered proprietors of a property which is their family home. The respondent is Catherine Margaret Thorn as executrix of the Estate of the late Betty McAuley (“the Estate”). In a judgment of 25 August 2014, Robb J found that Mr Boyd had procured $260,000 from Mrs McAuley by undue influence and unconscionable conduct. On 6 November 2014, his Honour made declarations to that effect and that the Estate was entitled to trace the sum of $260,000 into any property in relation to which it had been applied. On 13 March 2015, Robb J declared that Mr Boyd held his interest in the family property “upon a constructive trust for the [Estate] to the value of $200,000”, and that the Estate’s judgment debt constituted an equitable charge on Mr Boyd’s interest in that property. His Honour granted liberty to the Estate to apply for an order under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for the sale of the subject property. Mrs Boyd was not a party to the proceedings at that stage.

Subsequently, Mrs Boyd applied to White J for orders setting aside the declarations and orders made on 13 March 2015. White J set these aside, finding that Mrs Boyd had been a necessary party to the proceedings, at least from the time that the Estate pursued its claim for the declarations and orders involving the subject property. His Honour also ordered that Mrs Boyd be joined as a party to the proceedings.

After a further hearing in 2016, at which Mrs Boyd appeared without legal representation, Sackar J re-made the March 2015 declarations and orders that White J had set aside and ordered pursuant to s 66G that the property be vested in trustees for sale. Mrs Boyd appealed against these orders (Ground 1). Mr Boyd appealed against Sackar J’s order that litigation costs, for which Mr Boyd was liable to the Estate, be paid out of Mr Boyd’s share of the proceeds of sale (Ground 2). Both Mr and Mrs Boyd appealed against Sackar J’s order that the real estate agent’s commission and charges and the trustee’s expenses of sale be paid from the proceeds of sale before dividing the net proceeds between Mr and Mrs Boyd (Ground 3).

The Court of Appeal held that Ground 2 of the appeal should be upheld.

The majority of the Court (per Leeming JA and Emmett AJA) held that the appeal should otherwise be dismissed.

Ground 1:

Per Macfarlan JA, Emmett AJA agreeing:

The s 66G orders affected Mrs Boyd’s interest in the subject property and prejudicially affected her legal rights as they required the sale of a property in respect of which she was a part owner: [17], [202].

Per Leeming JA, Emmett AJA agreeing:

Once the Estate had determined to seek proprietary relief against land of which Mrs Boyd was a joint owner, it was open to her to seek to challenge the findings of breach of duty and unconscionability made by Robb J in 2014: [152], [207].

Mrs Boyd however only challenged some of the orders made in the proceedings before she became a party. She did not challenge the declaratory and substantive orders made by Robb J on 6 November 2014 which were based on findings that Mr Boyd had obtained the $260,000 from Mrs McAuley by unconscionable conduct and breach of fiduciary duty. The scope of the rehearing before Sackar J was therefore confined to the challenged orders only. Mrs Boyd was not at liberty to seek to raise issues that were inconsistent with orders made earlier in the proceedings that she did not challenge: [79], [149], [203].

Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630; Malamit Pty Ltd v WFI Insurance Ltd [2017] NSWCA 162 applied.

John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 considered.

Consideration (by Leeming JA) of (a) the relationship between seeking and obtaining proprietary relief and the execution of judgments on property, (b) the effect of taking such steps on jointly owned property and (c) the procedural consequences of those steps including where necessary parties have not been joined: [76]-[104].

Per Macfarlan JA dissenting:

As the Estate was seeking s 66G orders in relation to land of which Mrs Boyd was a joint owner, she had a right to object to the orders. In doing so, she could challenge the Estate’s claim that it was entitled to seek the orders because it was the holder of a proprietary interest in the property (by way of tracing). As part of this opposition, Mrs Boyd was entitled to contend that Mr Boyd’s wrongful conduct needed to be proved by evidence in the proceedings at a time when she was a party to the proceedings: [17]-[18], [21]-[22].

Mrs Boyd was not a necessary party to the proceedings at the time of Robb J’s findings and orders in 2014. Therefore Mrs Boyd did not have a right to set aside those findings and orders: [23], [35], [37].

John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 distinguished.

This analysis does not create the prospect of there being subsisting inconsistent court findings. If when Mrs Boyd was a party, the Estate failed to re-prove that Mr Boyd had acted unconscionably, that finding would supersede the 2014 finding. This is because the 2014 parties remained parties to the proceedings (with Mrs Boyd having been added as a party): [39].

Mrs Boyd was not bound by Robb J’s findings and orders made earlier in the proceedings, when she was not a party, on the basis of the principles relating to privity of interest. Mrs Boyd did not have any legal interest in the outcome of the earlier proceedings, nor did she later acquire a legal interest affected by an estoppel connected to the earlier proceedings: [28]-[30].

Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28; Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34 and Cassegrain v Gerard Cassegrain & Co Pty Ltd (2014) 254 CLR 425; [2015] HCA 2 applied.

Gerard Cassegrain & Co Pty Ltd v Cassegrain (2013) 87 NSWLR 284; [2013] NSWCA 453 considered.

Sackar J’s orders and declarations should be set aside for want of proof against Mrs Boyd of Mr Boyd’s unconscionable conduct and therefore of the Estate’s standing to seek s 66G orders. It is open to the Estate to make a further application for such an order: [40], [54], [59].

Ground 2

The Court upheld this ground.

Ground 3

The Court rejected this ground.

Judgment

1. MACFARLAN JA: The appellants, Mr Ian and Mrs Dawn Boyd, are the registered proprietors of a property which is their family home. Mrs Boyd appeals against orders made by Sackar J on 22 September 2016 ([2016] NSWSC 1344) under s 66G of the Conveyancing Act 1919 (NSW) providing for the vesting of that property in trustees for sale (Ground 1).

2. Mr Boyd appeals against the aspect of his Honour’s orders which concerns distribution of the proceeds of sale (Ground 2) and both Mr and Mrs Boyd appeal against another aspect of those orders (Ground 3).

The proceedings in the Equity Division

3. By her amended statement of claim in the proceedings, Mrs Betty McAuley (now deceased) alleged that Mr Boyd had obtained money from her by means of undue influence and unconscionable conduct, and had applied that money in payment of a mortgage over the subject property. She sought a declaration that the property was charged in her favour to secure the moneys obtained from her and sought an order for the appointment of trustees for the sale of the property. Mrs McAuley died on 26 December 2012 and the respondent executrix was joined as a party to represent her estate. Although then a joint tenant of the subject property, Mrs Boyd was not a party to the proceedings when they were heard in stages by Robb J in 2014 and 2015.

4. In a judgment of 25 August 2014, Robb J found that Mr Boyd had procured $260,000 from the late Mrs McAuley by undue influence and unconscionable conduct ([2014] NSWSC 1159).

5. On 6 November 2014, his Honour made declarations that Mr Boyd had acted unconscionably and in breach of fiduciary duty, and that the Estate was entitled to trace the sum of $260,000 into any property in relation to which it had been applied. The subject property was not identified in the declarations as the destination of the funds.

6. After a further hearing, in a judgment of 13 March 2015 ([2015] NSWSC 199), Robb J declared that Mr Boyd held his interest in the subject property “upon a constructive trust for the [Estate] to the value of $200,000” and that the Estate’s judgment debt constituted an equitable charge on Mr Boyd’s interest in the property. His Honour granted liberty to the Estate to apply for an order for the appointment of trustees for the sale of the property under s 66G of the Conveyancing Act.

7. On 24 March 2016 Mrs Boyd filed a summons in fresh proceedings, seeking orders setting aside the declarations and orders made by Robb J on 13 March 2015 in the proceedings to which she was not a party. In her supporting affidavit Mrs Boyd contended:

“As a registered owner and occupant of the property affected by the claim, I was a necessary (indispensable) party to proceedings and a party who ought to have been joined.”

8. On 11 May 2016 White J set aside the relevant declarations and orders ([2016] NSWSC 588), finding that Mrs Boyd had been a necessary party to the proceedings before Robb J, at least from the time that the Estate pursued its claim for the declarations and orders made on 13 March 2015. His Honour also made an order joining Mrs Boyd as a party to the proceedings. His Honour considered that the declarations and orders “directly affected Mrs Boyd as they expose[d] her to the prospect of the property of which she is a co-owner being sold upon the appointment of trustees for sale” (at [20]) and that “Mrs Boyd as well as Mr Boyd, had an interest in denying that the breaches of duty that Mr Boyd was found to have committed should result in the grant of a proprietary remedy” (at [22]).

9. His Honour held that Mrs Boyd’s rights were also affected because the declarations and orders effected a severance in equity of the joint tenancy upon which Mr and Mrs Boyd held the property, and that this had a direct effect on Mrs Boyd’s interest in the property (at [23]).

10. Whether or not the declarations and orders had this effect, severance of the joint tenancy was put beyond doubt by the registration under s 97 of the Real Property Act 1900 (NSW) of an instrument that Mrs Boyd lodged with the Registrar General on 8 May 2015 recording the severance of the joint tenancy. On severance, the joint owners (Mr and Mrs Boyd) became tenants in common of the property.

11. Following a hearing on 19 and 20 September 2016 at which Mr and Mrs Boyd appeared as unrepresented parties, Sackar J delivered a judgment of 22 September 2016 making orders granting the Estate the final relief that it had previously obtained by the declarations and orders that White J set aside. These orders included a declaration that Mr Boyd held his interest in the property “upon a constructive trust for [the Estate] to the value of $200,000” and an order that, pursuant to s 66G of the Conveyancing Act, the property be vested in trustees for sale.

12. His Honour also made the following orders which are relevant to Grounds 2 and 3 of the appeal:

“5.   That the Trustees pay out of the proceeds of sale:

a.   Council rates, water rates, strata levies and any other statutory duties or charges if any;

b.   The real estate agent’s commission and charges; and

c.   The amounts owing to any person having a secured interest.

6.   That the Trustee pay out of the first defendant’s share of the proceeds of sale:

a.   so much of the judgment debt as represents a principal sum of $200,000 plus pre-judgment interest under the Civil Procedure Act, in the amount of $82,829.46 and interest accruing after judgment under s 101 of that Act on that principal sum the subject of declaration 2 above;

b.   the costs of the plaintiff referred to in order 4 of the orders made by Robb J on 13 March 2015.

7.   That the trustee Timothy William Daly is authorised to charge at a rate not exceeding $400.00 per hour including GST and in the total sum not exceeding $10,000.00 including GST plus disbursements and is authorised to deduct all such expenses from the proceeds of sale.

8.   That the trustee Liam Bailey is authorised to charge at a rate per hour not exceeding $638.00 including GST and in the total sum not exceeding $15,000.00 including GST plus disbursements and is authorised to deduct all such expenses from the proceeds of sale.”

13. His Honour’s judgment included the following observations:

“66   As I have earlier indicated the Defendants filed no evidence. Instead, they both took it in turns to make submissions and assertions from the bar table.

67   The recurring theme of these submissions, which involved frequent reference to the decision in Cameron v Cole (1944) 68 CLR 571, was that they were entitled to a rehearing of all matters which had been before Robb J and that White J’s judgment of 11 May 2016 was or should be construed as having that effect. As I understood it, they believed they were entitled to a rehearing, or as the Second Defendant submitted, a hearing de novo, according to general notions of procedural fairness. This submission has no basis in law and I reject it.

68   The Defendants pointed me to the comments of Rich J in Cameron v Cole (1944) 68 CLR 571 at 589 and submitted that that compelled me to set aside the remaining orders of Robb J as there had been “no valid trial at all”. However, the Defendants failed to appreciate the context in which these comments were made, as they simply quoted the last line of the relevant passage at 589. In full, Rich J said:

“It is a fundamental principle of natural justice, applicable to all Courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person who is affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside … in such a case there has been no valid trial at all.”

69   In the full context of 589, Rich J clearly stated that only the orders binding on the person affected, in the present case, the Second Defendant, could be set aside on the basis that she had not been afforded a ‘valid trial’. It is for these reasons that this central and repeated submission of both Defendants has no merit.

70   I was at pains on numerous occasions to emphasise it was only the items set out in [11] of White J’s judgment of 11 May 2016 [being Robb J’s declarations and orders of 13 March 2015] which were the subject of the rehearing before me. However, both Defendants were simply unable or unwilling to accept that situation.”

14. His Honour indicated that the foundation for his conclusion that Mr Boyd’s interest in the property should be charged in favour of the Estate was that “the traceable $200,000 was unconscionably procured and … it would be contrary to the principles of equity for [Mr Boyd] to retain any benefit from this $200,000” (at [83]). It is apparent from his Honour’s judgment that this conclusion was founded on the findings of Robb J in his judgment of 6 November 2014, delivered at a time when Mrs Boyd was not a party to the proceedings.

15. Mrs Boyd submitted to this Court, I consider correctly, that there was no evidence before Sackar J which could have constituted a re-proving before Sackar J of Mr Boyd’s undue influence or unconscionable conduct. This is to be contrasted with the position in Gerard Cassegrain & Co Pty Ltd v Cassegrain (2013) 87 NSWLR 284; [2013] NSWCA 453 at [113]-[117] and [153].

16. The Estate accepted that the evidence before Robb J that formed the basis for his 25 August 2014 findings and 6 November 2014 declarations was not before Sackar J, at least in full. The Estate submitted nonetheless that there was some evidence before Sackar J upon which a finding of wrongful conduct by Mr Boyd could have been based. This evidence was however of a tenuous kind and included Mr Boyd’s unrebutted statements to the effect that his dealings with his late aunt were the subject of informed consent evidenced by a letter “witnessed and certified by a Solicitor”. This evidence, when taken as a whole, was insufficient to justify Sackar J’s assumptions as to Mr Boyd’s wrongful conduct and I do not in any event read his Honour’s judgment as relying upon it for that purpose. Instead, his Honour relied upon Robb J’s earlier findings.

Ground 1: whether Mr Boyd’s wrongful conduct had to be and was proved against Mrs Boyd

17. Although Sackar J’s declaration of a charge in favour of the Estate related only to Mr Boyd’s interest in the property, and the trustees for sale were directed to pay the judgment debt in favour of the Estate out of Mr Boyd’s share of the proceeds, the orders under s 66G of the Conveyancing Act for the appointment of trustees for sale related to the property as a whole. They therefore affected Mrs Boyd’s interest in the property (formerly as joint tenant but by this time as tenant in common). Her legal rights were prejudicially affected by the orders as they required the sale of a property of which she was a part owner.

18. Accordingly, Mrs Boyd had a right to object to the making of the orders. She was present (although without legal representation) at the hearing before Sackar J and, to an extent, was permitted to do so. She was not permitted however to challenge the Estate’s standing to seek the order for the appointment of trustees for sale. She did not focus her opposition to the orders on the Estate’s standing to seek the orders, but that is not surprising as she was unrepresented. She sufficiently raised the point by her assertions that she was not bound by the findings and orders of Robb J and that she was entitled to have the issues that Robb J addressed re-litigated. Sackar J rejected these assertions.

19. The Estate’s assumed standing to seek the orders derived from its apparent status as a chargee of Mr Boyd’s interest in the property. On this basis it was an “incumbrancee” of the interest of a co-owner and therefore, by reason of the definition of “co-owner” in s 66F(1) of the Conveyancing Act, was itself a “co-owner” and thereby entitled to apply as a co-owner for orders under s 66G for the appointment of trustees for sale.

20. I note in passing that the definition of “co-owner” in s 66F(1) is stated to include “an incumbrancer of the interest of a joint tenant or tenant in common”. To give this aspect of the definition a sensible meaning, this must be read as a reference to an “incumbrancee”, a word which is not otherwise mentioned in that definition. “Incumbrancee” is defined in s 7 of the Act to include “every person entitled to the benefit of an incumbrance, or to require payment or satisfaction thereof”. It is plainly to such a person that the definition of “co-ownership” in s 66F(1) is intended to refer (see Campbell J in Chaudhary v Chaudhary [2016] NSWSC 1423 at [114]). An intended reference to “incumbrancer” would be redundant as a person giving a mortgage, charge or other incumbrance over the property must, of necessity, be the owner of an interest in it and therefore already within the concept of a co-owner. If I am wrong in this approach, the Estate would not have had standing to seek s 66G orders and the orders would plainly be defeasible. I therefore proceed on the assumption (favourable to the Estate) that my view on this question is correct.

21. As part of her opposition to the s 66G orders, Mrs Boyd was entitled to contend that the Estate did not have any standing to seek the orders. In support of that contention she was entitled to submit that there was no evidence before Sackar J that Mr Boyd had procured money from his late aunt by undue influence or unconscionable conduct. If that submission was accepted, the result is that no charge arose in favour of the Estate and the Estate therefore had no standing, as an incumbrancee or otherwise, to seek s 66G orders.

22. Even without making allowances for the fact that Mrs Boyd did not have legal representation, it is clear from the passages in Sackar J’s judgment quoted in [13] above that, at the hearing before Sackar J, Mrs Boyd contended that she was not bound by Robb J’s findings and orders made on 25 August 2014 and 6 November 2014 because she was not a party to those proceedings. Those findings and orders were to the effect that Mr Boyd procured money from his late aunt by exercising undue influence and by unconscionable conduct.

23. Unless Mrs Boyd was effectively represented by Mr Boyd as her privy at the hearing leading to Robb J’s judgment of 25 August 2014, the findings contained in that judgment, and reflected in his Honour’s orders of 6 November 2014, were not binding upon her. By reason of s 91 of the Evidence Act 1995 (NSW), Robb J’s judgment did not constitute evidence before Sackar J of the facts that Robb J found. It is therefore necessary to consider the principles relating to privity of interest. Unless the Estate can establish that those principles bind Mrs Boyd to Robb J’s findings and orders, the declarations and orders of Sackar J must be set aside as they were founded upon conclusions as to Mr Boyd’s conduct that were not supported by evidence in the proceedings before him.

Privity of interest

24. The Estate alleges that Mrs Boyd is bound by Robb J’s determinations of issues of fact and law in his judgment of 25 August 2014 (as reflected in his orders of 6 November 2014) notwithstanding that she was not at that stage a party to the proceedings. The Estate makes this argument on the basis that there was privity of interest between Mr Boyd, who was a party and appeared before Robb J, and Mrs Boyd.

25. The relevant principles have recently been stated authoritatively by the High Court in Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28. In that case, the plurality said:

“33   … a party to a later proceeding (‘A’) can be privy in interest with a party to an earlier proceeding (‘B’) on either of two bases. One basis is that A might have had some legal interest in the outcome of the earlier proceeding which was represented by B, or that B has some legal interest in the outcome of the later proceeding which is represented by A. The extent to which the representation by A or B will be sufficient to bind the other is the critical issue which will be explored later in these reasons. The other basis is that, after that earlier proceeding was concluded by judgment, A might have acquired from B some legal interest in respect of which B would be affected by an estoppel which A then relies on in the later proceeding.”

26. Their Honours emphasised that, in relation to the first category, the interest of the privy must be a legal interest. They stated that “an economic or other interest on the part of A in the outcome of the earlier proceeding is insufficient” and that “absent a legal interest, such influence as A might have had over the conduct of the earlier proceeding is irrelevant even if that influence amounted to control” (at [35]).

27. In relation to the second category, their Honours stated:

“40   Traditional forms of representation which bind those represented to estoppels include representation by an agent, representation by a trustee, representation by a tutor or a guardian, and representation by another person under rules of court which permit representation of numerous persons who have the same interest in a proceeding. To those traditional forms of representation can be added representation by a representative party in a modern class action. Each of those forms of representation is typically the subject of fiduciary duties imposed on the representing party or of procedures overseen by the court (of which opt-in or opt-out procedures and approval of settlements in representative or class actions are examples), or of both, which guard against collateral risks of representation, including the risk to a represented person of the detriment of an estoppel operating in a subsequent proceeding outweighing the benefit to that person of participating in the current proceeding.” (footnotes omitted)

28. In the present case there was not, on either basis, any privity of interest between Mr and Mrs Boyd in respect of Mr Boyd’s unsuccessful defence of the proceedings brought against him before Robb J in 2014.

29. Mrs Boyd did not have any legal interest in the outcome of the proceedings, they being concerned at that stage solely with Mr Boyd’s personal liability and the Estate’s entitlement, in a general sense, to trace the money Mr Boyd was found to have wrongfully procured from Mrs McAuley. Robb J did not, until 13 March 2015, make orders concerning the property in which Mrs Boyd had an interest, nor, apparently, was he asked to do so before that stage. There is no basis therefore upon which it could be concluded that Mr Boyd represented Mrs Boyd before Robb J in 2014. Mr Boyd’s interest in the proceedings in 2014 was “personal” to him (see Ramsay v Pigram (1968) 118 CLR 271 at 279; [1968] HCA 34).

30. Nor did Mrs Boyd acquire any legal interest from Mr Boyd in respect of which Mr Boyd might have been affected by an estoppel connected with the proceedings before Robb J. Mrs Boyd’s interest in the subject property was acquired independently of and prior to any of the proceedings before Robb J.

31. The Estate relied in this context upon a finding of Beazley P in Gerard Cassegrain & Co Pty Ltd v Cassegrain (2013) 87 NSWLR 284; [2013] NSWCA 453 at [107]-[112] that there was privity of interest between the joint property owners in that case because joint tenancies give rise to a “mutual … relationship to the same right of property”. However, the point in question was not addressed by the other members of the court and her Honour’s observations have, with respect, been overtaken by the High Court’s subsequent detailed exposition of the principles relating to privity of interest in Tomlinson, as well as by the High Court’s observations on appeal in Cassegrain (Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425; [2015] HCA 2) as to the limited operation that can be given to the proposition that joint tenants are “considered by the law as one person for most purposes” (at [49]). It is, with respect, clear from these authorities that the fact that a joint tenancy may give rise to a “mutual … relationship to the same right of property” is insufficient to make joint tenants privies for each other in circumstances such as the present.

Leeming JA’s judgment

32. Since preparing these reasons I have had the advantage of reading the judgment of Leeming JA.

33. His Honour’s view differs from my view on the principal question arising on this appeal, namely whether Sackar J erred in precluding Mrs Boyd from contending that she was not bound by Robb J’s findings made in his judgment of 25 August 2014, and reflected in his Honour’s orders of 6 November 2014, that Mr Boyd had acted unconscionably and in breach of fiduciary duty.

34. Leeming JA refers inter alia to the following facts:

1. Mrs Boyd did not ask White J to set aside Robb J’s orders of 6 November 2014 (or judgment of 25 August 2014), nor did White J do so. Rather, White J set aside Robb J’s orders of 13 March 2015 which declared that Mr Boyd’s interest in the subject property was held upon a constructive trust for the Estate “to the value of $200,000” and that the Estate’s judgment debt constituted an equitable charge on Mr Boyd’s interest in the property.

2. Mrs Boyd did not appeal against White J’s orders.

3. During the hearing before him, White J drew Mrs Boyd’s attention to the fact that his Honour’s (White J’s) orders did not involve the setting aside of Robb J’s orders of 6 November 2014 (in response Mrs Boyd reiterated her assertion that she was entitled to have the “full original proceedings” re-heard).

4. By notice of motion of 22 July 2016, Mrs Boyd applied to set aside Robb J’s orders of 6 November 2014. Rein J dismissed the notice of motion following Mrs Boyd’s failure to appear after an adjournment application was rejected. Mrs Boyd did not appeal against that dismissal.

5. Mrs Boyd applied by notice of motion filed on 13 September 2016 to set aside “the judgment and all other determinations made by Justice Robb on 25 August 2014”. She also applied to set aside the orders of White J. Sackar J dismissed the notice of motion on the basis that Mr Boyd had not sought to appeal from the 2014 determinations and that there was no other ground to set the judgment aside.

6. In his judgment of 22 September 2016, Sackar J noted that White J had ordered a further hearing limited to certain matters (which included the Estate’s claim for a s 66G order).

35. Notwithstanding these matters, I remain of the view that at the hearing before Sackar J Mrs Boyd was entitled to assert that the 2014 findings and orders of Robb J were not binding on her. As she was not a party to the proceedings in 2014 (and Mr Boyd, who was a party, was not her privy), the findings and orders were not binding on her, at least at the time they were made. White J’s subsequent joinder of her as a party did not have the effect of retrospectively rendering her a party to the proceedings at the time they were heard by Robb J in 2014. Her status as a party dated from the date of her joinder, not the date of commencement of proceedings or some other earlier date (Uniform Civil Procedure Rules (NSW) 2005 (“UCPR”) r 6.28).

36. In 2014 the Estate did not need to join Mrs Boyd as a party. This obligation only arose in 2015 when the Estate commenced to pursue claims for relief in relation to the property of which Mrs Boyd was a co-owner. At that stage her interests became directly affected and she was entitled, and required, to be joined as a party.

37. That Mrs Boyd became a proper and necessary party to the proceedings in 2015 did not mean that what had occurred in the proceedings in 2014 became in some way defective. It was perfectly effective against the then sole defendant, Mr Boyd, and that remains the case. Because she was not a necessary party in 2014, Mrs Boyd does not, and never has had, a right to set aside Robb J’s 2014 findings and orders. For this Court to have set them aside at Mrs Boyd’s instance would have been to allow a non-party, whose interests were not directly affected by proceedings, to interfere unjustifiably in perfectly proper proceedings against another person. In this respect, the present case differs from John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 where the appellant should have been joined at the outset of the proceedings and was therefore found entitled to have orders made while it was not a party set aside.

38. In these circumstances, neither any failure of Mrs Boyd to apply to set aside Robb J’s 2014 findings and orders, nor any lack of success on her part in making any such application, adversely affects her position. Those findings and orders were never liable to be set aside at her instance. The Estate did not suggest that there were any other means by which Mrs Boyd might have become bound by Robb J’s 2014 findings and orders. Certainly, no generalised assertion of acquiescence by Mrs Boyd would have been well-founded, as she persistently contended that she was entitled to re-visit the 2014 findings and orders (see for example [34(3)]).

39. The effect of Leeming JA and Emmett AJA’s judgments in the present appeal is that Mrs Boyd bore an onus to take affirmative action to have Robb J’s 2014 findings and orders set aside. I do not agree that she did, as they never became binding on her. Not having joined Mrs Boyd as a party to the proceedings before it obtained those 2014 findings and orders, it was for the Estate to take steps to re-prove the relevant matters at a time when Mrs Boyd was a party. No difficulty of conflicting findings or orders would have arisen if the Estate had been unsuccessful in doing this because the parties at the time of Robb J’s 2014 findings and orders (that is the Estate and Mr Boyd) remained parties and later different findings and orders in the proceedings would have superseded those made in 2014. I do not consider that the dismissal by Rein J and Sackar J of motions filed by Mrs Boyd, when unrepresented, seeking to set aside the 2014 findings and orders estops her from contending for the correct position as I have described it. These dismissals embodied findings that Mrs Boyd was not entitled to have the 2014 findings and orders set aside, not that they were binding upon her.

40. That brings me to the issues before Sackar J. Of prime importance before his Honour was the Estate’s claim for a s 66G order. For the reasons I have given, his Honour’s s 66G order directly affected Mrs Boyd’s interests. An essential element in the Estate’s claim for that order was proof that Mr Boyd had acted unconscionably. The Estate sought to prove that by relying on Robb J’s 2014 findings and orders. However, as I have indicated, Mrs Boyd was not bound by those findings. There was nothing to preclude her making submissions to that effect and she attempted to do so. In my view, Sackar J erred in holding that she was not entitled to put that contention. She should have been allowed to put the contention, it should have been accepted and the s 66G application should have failed for want of proof that the Estate had standing to seek such an order.

Ground 2: order 6(b) of the s 66G orders

41. In light of my conclusions on Ground 1, Grounds 2 and 3 do not strictly arise. It is appropriate however to make the following observations in relation to them.

42. By order 6(b) (see [12] above), Sackar J ordered that the costs which the Estate was entitled to be paid by Mr Boyd (by reason of a costs order made by Robb J on 13 March 2015) be paid out of Mr Boyd’s share of the proceeds of sale of the subject property. That order did not affect Mrs Boyd’s interests as the relevant payment was not ordered to be made out of her share. She therefore does not appeal against it.

43. Further, the order would not appear to affect Mr Boyd personally as he does not dispute his liability to pay the costs in question. The significance of the order seems to be that it effectively gives the Estate a secured interest in respect of the costs liability and thus may give it an advantage over other unsecured creditors of Mr Boyd in the event that Mr Boyd is unable to pay all of his creditors.

44. In my view, order 6(b) would need to be set aside even if, contrary to my view as to what should occur, the s 66G orders were otherwise to stand.

45. Section 66F(2)(a) of the Conveyancing Act states:

“(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,” (emphasis added)

46. In Re Fettel (1952) 52 SR (NSW) 221 at 228 McLelland J said that the phrase in s 66F(2)(a) “for giving effect to the rights of the co-owners” means “for giving effect to the rights of the co-owners as co-owners”. His Honour then said in relation to s 66G(6):

“I do not think that this provision gives any authority for importing terms into the order of the court which have no relation to the situation of the parties as co-owners. When the respective definitions of ‘statutory trust for sale’ and ‘statutory trust for partition’ are read, it is clear that in their general terms they are not appropriate to meet every set of facts which would arise. In order to deal with the facts of particular cases, it will at times be necessary to make special provisions, to work out the respective rights of the parties as co-owners, or to give the trustees particular powers or duties not covered by the general words of the definition, or to deal with other like circumstances. It is such matters with which s 66G(6) is concerned, and the court cannot, in my opinion, import into the statutory trusts conditions to give effect to rights arising quite outside the position of the parties as co-owners” (at 228).

47. Bryson AJ made observations to similar effect in Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2008] NSWSC 839; 14 BPR 98,326 at [34]-[35]. I referred with approval to both statements in Ross v Ross [2010] NSWCA 301; 15 BPR 28,945 at [32]-[33].

48. The effect of these statements is that, when making an order under s 66G to give effect to the statutory trust for sale identified in s 66F(2)(a), the Court’s authority is limited to making adjustments to reflect the rights of the co-owners in their capacity as such. Thus, as I pointed out in Ross v Ross at [34], the court could, for example, provide for the payment of an occupation fee by one co-owner to another or make an allowance for the value of improvements made by one co-owner. In the present case, assuming that the Estate is a co-owner because it is an incumbrancee (or, to use the more common spelling, an encumbrancee) the court was entitled to require the amount secured by the incumbrance (that is, the judgment debt secured by the charge) to be paid to the Estate out of Mr Boyd’s share of the proceeds of sale. That gives effect to a right that the Estate has as a co-owner (because it arises from the incumbrance) against Mr Boyd.

49. The position is otherwise in respect of Mr Boyd’s liability to the Estate to pay costs. That is not a liability secured by the charge as it arose independently of the charge (and therefore independently of the parties’ position as co-owners) by reason of a court order.

50. For these reasons, Ground 2 would have been upheld if Ground 1 had not succeeded.

Ground 3: orders 5(b), 7 and 8

51. By this ground of appeal, Mr and Mrs Boyd contended that Sackar J erred by ordering (by orders 5(b), 7 and 8) the trustees for sale to pay the real estate agent’s commission and charges, and to deduct their own expenses, from the proceeds of sale before dividing the net proceeds between Mr and Mrs Boyd. Rather, they contend that the orders should have provided for the commission, charges and expenses to be deducted from Mr Boyd’s share of the proceeds of sale.

52. For Ground 3 to have become relevant, this Court would have had to conclude that the s 66G orders were not challengeable on the appeal. If this had been the case, the s 66G orders would have had to have been regarded as a step taken in accordance with law to separate the interests of the co-owners. In those circumstances, it would have been appropriate to provide that the co-owners share the expenses of sale. The fact that one co-owner had instigated the sale would not require him or her to bear all the expenses of the sale as that owner was simply exercising a right conferred by the Conveyancing Act to apply for orders for appointment of trustees for sale. Neither that right, nor the exercise of the court’s power, is dependent upon any of the co-owners being at fault in any respect.

53. For these reasons, if Ground 3 had been relevant, it would have been rejected.

Orders

54. Whilst the orders of Sackar J should be set aside, it is still open to the Estate to make a further application for s 66G orders for sale and to seek to prove its standing to do so. The decision by the present judgment provides that the Estate did not, on the evidence adduced before Sackar J, have that standing. This decision does not constitute a determination, binding on the Estate and Mr and Mrs Boyd, that the Estate has no standing to seek s 66G orders irrespective of any evidence that may be adduced on a further application.

55. The Estate should pay Mrs Boyd’s costs of the proceedings to date and also Mr Boyd’s costs of the proceedings from the date of Mrs Boyd’s joinder, although, as litigants in person, there may be little, if anything, they can recover under these orders. Earlier costs orders should remain unaffected.

56. Mrs Boyd should have her costs of the appeal as she has been successful. As she and Mr Boyd had joint representation and were clearly acting in the same interest, an order should be made that the Estate pay the appellants’ costs of the appeal, without distinction between Mr and Mrs Boyd.

57. In their notice of appeal, Mr and Mrs Boyd sought an order for interest on costs pursuant to s 101(4) of the Civil Procedure Act 2005 (NSW). As the Court was not directed to any evidence relevant to that application, and as it was not adverted to in argument, I do not propose that such an order be made.

58. In his judgment in the present case, Leeming JA expresses the view that if (contrary to his conclusion) procedural unfairness occurred, an issue would arise as to whether this Court should order a new trial. I respectfully disagree. If, as I have concluded is the case, Mrs Boyd was not bound by Robb J’s 2014 findings and orders that Mr Boyd acted unconscionably, there was no evidence before Sackar J sufficient to prove that the estate had a proprietary interest in the subject property and that the Estate therefore had standing to seek a s 66G order. For that reason, Sackar J’s orders should be set aside and the Estate’s claim to a s 66G order fails.

59. As I have said above, if the Estate wishes to make a further application for a s 66G order that is a matter for it. The Estate’s application for a s 66G order before Sackar J should have failed and this must be reflected in this Court’s orders. There is no question of ordering a re-hearing of what occurred before Sackar J because the Estate’s evidence was deficient and it is not entitled to a further opportunity, at least on the application it has thus far made, to remedy that deficiency.

60. I add that if any question of a new trial had arisen, the starting point for consideration of the issue would have been my conclusion that Mrs Boyd was denied procedural fairness in a significant respect, in that she was prevented from contending that an essential element of the Estate’s claim before Sackar J for a s 66G order had not been satisfied. In such a case it is sufficient for an appellant who seeks a new trial to show that the denial of procedural fairness deprived him or her of the possibility of a successful outcome. In order to negate that possibility it is necessary for the Court “to find that a properly conducted trial could not possibly have produced a different result” (Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 at 147; [1986] HCA 54; Mastronardi v New South Wales [2007] NSWCA 54 at [83]-[86]; Lu v Heinrich [2014] NSWCA 349; 68 MVR 277 at [148]). As the High Court said in Stead at 145-6, “[i]t is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact”.

61. I would not have been so satisfied in the present case. That Mrs Boyd has not revealed how she would have opposed the making of a finding that Mr Boyd acted unconscionably is not to the point. It was for the Estate to adduce evidence to prove that allegation before Sackar J and it did not do so. At least where the evidence of unconscionability that was before Robb J in 2014 is not before this Court, this Court cannot conclude that there is no possibility that the Estate would fail to prove at a retrial that Mr Boyd acted unconscionably.

62. For these reasons, I propose the following orders:

1. Appeal allowed.

2. Declarations and orders made by Sackar J on 22 September 2016 be set aside.

3. Dismiss the respondent’s application for an order under s 66G of the Conveyancing Act 1919 (NSW).

4. Order the respondent to the appeal to pay the second appellant’s costs of the proceedings at first instance, and to pay the first appellant’s costs of the proceedings at first instance from the date of the second appellant’s joinder as a party to the proceedings.

5. Order the respondent to pay the appellants’ costs of the appeal.

6. The respondent is to have a certificate under the Suitors’ Fund Act 1951 (NSW), if qualified.

63. LEEMING JA: The principal issue in this appeal is as to the consequences of a plaintiff’s failing to join a necessary defendant when seeking proprietary relief, and in particular the application of what was said by a unanimous High Court in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [134]:

“Walker Corporation [the third party, which had an interest in the land] was entitled to claim, if it wished, that the [plaintiff’s] substantive case was insufficiently strong to succeed at all, whatever the remedy available if it did succeed to any extent. Walker Corporation was entitled to call evidence against that substantive case. Even if it did not wish to do that, it was entitled to be heard on the weaknesses in the substantive case.”

64. The third party in the present litigation, Mrs Boyd, was belatedly joined, the orders made which were found to have directly affected her interest in jointly owned land were set aside, and she was given an opportunity to be heard when the plaintiff’s application (for proprietary relief in respect of Mr Boyd’s interest in the land and for the appointment of trustees for sale) was reheard. There are some nice questions about when Mrs Boyd became a necessary party, but these questions do not arise in this appeal. There are also some minor matters as to the form of the orders made following the rehearing (grounds 2 and 3). But the principal issue is as to the scope of that rehearing. Mrs Boyd maintains that what occurred was insufficient, that she should not have been confined to challenging the orders which had been set aside but rather should have been permitted to challenge all aspects of the plaintiff’s claim.

65. In order to put in context the main issue on this appeal, and how I would resolve it, the following very simplified summary will suffice. When this litigation commenced, more than six years ago, Mrs Betty McAuley was alive. No later than the amended statement of claim filed 11 October 2012, a tutor, NSW Trustee and Guardian, had been appointed. She died later that year, and the litigation has since then been conducted by Mrs Catherine Thorn as the executrix of her estate. It will be convenient to refer to the moving party, who is the respondent to this appeal, as Mrs Thorn.

66. The appellants, Mr Ian Boyd and Mrs Dawn Boyd, have at all material times been co-owners of land in Miranda in southern Sydney. Mrs McAuley had granted Mr Boyd a power of attorney, which did not extend to authorising him to confer a gift upon himself.

67. The amended statement of claim included allegations that Mr Boyd owed fiduciary obligations to Mrs McAuley not to act to his own benefit and not to put himself in a position of conflict. It was alleged that Mr Boyd had had and received Mrs McAuley’s funds and failed to account for or repay them in breach of his fiduciary obligation to her, and that his retaining those funds was unconscionable. It was alleged that Mr Boyd had used those funds, inter alia, to reduce indebtedness of a loan made by the National Australia Bank secured by a mortgage over the Miranda property.

68. Mr Boyd was originally the sole defendant. The procedural history of the litigation is complicated, but the critical fact is that there were two contested hearings before Robb J sitting in the Equity Division in 2014 and 2015, prior to Mrs Boyd being joined.

1. Following the first hearing, orders were made on 6 November 2014 declaring that Mr Boyd had received $260,000 in circumstances involving unconscionable conduct and breach of fiduciary duty and that he held the amount on trust for Mrs McAuley, and entitling Mrs Thorn to trace that amount into property in respect of which he had repaid a mortgage secured over that property.

2. Following the second hearing, Robb J found that $200,000 of the $260,000 had been used to repay the indebtedness of Mr and Mrs Boyd which was secured by mortgage over the Miranda property. Robb J ordered, on 13 March 2015, that Mr Boyd’s interest in the Miranda property was subject to a constructive trust and a charge, and leave was granted to Mrs Thorn to apply for an order that the property be sold.

69. In 2016, Mrs Boyd applied to set aside the orders made on 13 March 2015, on the basis that she was a necessary party. At the time orders were made on 13 March 2015, Mr and Mrs Boyd were joint owners of the Miranda property. At some time thereafter the joint tenancy was severed by instrument registered pursuant to s 97 of the Real Property Act 1900 (NSW).

70. Mrs Boyd’s application was acceded to by White J on 11 May 2016, who ordered the rehearing before the primary judge (Sackar J) later that year from which this appeal has been brought. However, Mrs Boyd did not at that time apply to set aside the orders made on 6 November 2014.

71. For the reasons which follow, I would reject the principal ground of appeal, which is that the rehearing before the primary judge was unduly confined. I would do so on two bases. The first is that Mrs Boyd only challenged some of the orders made in the litigation when she was not joined. Mrs Boyd did not challenge the declaratory and substantive orders made on 6 November 2014 which were expressly based on findings that her husband had obtained $260,000 of the plaintiff’s money in circumstances involving unconscionable conduct and breach of fiduciary duty. The scope of the rehearing was confined by reference to the remaining unchallenged orders. Mrs Boyd’s entitlement to adduce evidence, and to be heard on weaknesses in the plaintiff’s substantive case, in accordance with what was said in John Alexander’s Clubs was not unqualified. Instead her entitlement to do so was circumscribed by her choice not to challenge some of the orders already made, and she was not at liberty to seek to establish issues in the rehearing which are inconsistent with the unchallenged orders in the litigation. That is the approach adopted by the primary judge, Sackar J, and in my view, his Honour was correct to do so.

72. That is sufficient to resolve the main ground of this appeal. However, if that be wrong, I would still dismiss this ground on the basis that I am not satisfied that a further hearing is necessary to avoid a substantial wrong or miscarriage. Mrs Boyd to this day is in default of the rules. She has filed no defence. Nor has she has proffered any draft defence. She served no evidence before Sackar J. There is no indication as to the evidence she wishes to adduce, and this Court is left to guess what submissions she wishes to make, at any further rehearing. The potential merits of the case which Mrs Boyd wishes to advance at a rehearing also fall to be assessed against the facts that Mrs Boyd has made a series of further challenges to set aside various orders, all of which have failed, from none of which has any appeal been brought, and the underlying claim is based upon Mr Boyd’s use of $200,000 plus interest, which in the scheme of Supreme Court litigation is not a large amount, especially when there have been at least 11 days of hearings before 7 judges to date.

73. Assuming that the hearing before the primary judge was unduly narrow, I do not consider that that entitles Mrs Boyd to judgment in her favour; the best she can seek is a rehearing. The combined effect of the matters mentioned in the previous paragraph causes me not to be persuaded that “a substantial wrong or miscarriage has been thereby occasioned”, which is necessary before there be yet another hearing: UCPR r 51.53.

74. The dispositive issues, on the view I take, are not free from difficulty. The analysis is assisted by bearing in mind the distinction between obtaining judgment and execution of judgment, and in particular between obtaining a proprietary remedy against land which is jointly owned, and execution against land which is jointly owned.

75. These reasons take the following form. First, I address a simpler example, analogous to the facts of this appeal, in order to expose the issue and the applicable principles. Secondly, I summarise the procedural history of this litigation. Thirdly, I explain why in my view Sackar J was correct to conduct and determine the rehearing in the way in which he did. Fourthly, I explain why I have concluded that even if Mrs Boyd was entitled to be heard more fully than she was before Sackar J, there has nevertheless been no substantial wrong or miscarriage. Finally, I deal with grounds 2 and 3 of the appeal.

An illustrative example

76. In order to illustrate some of the distinctions on which this appeal turns, it is helpful first to consider a simpler case. Suppose a company alleges that an employee has misappropriated corporate funds. The employee denies the allegation. The company sues the employee, including for breach of fiduciary duty, and obtains a money judgment in a certain sum and an order that the employee provide an affidavit explaining what has happened to the money. The employee’s affidavit discloses that she used some of the misappropriated funds to buy a car for her daughter which is registered in her daughter’s name, that she used some to acquire a holiday house jointly owned by her and her husband, and that the large majority has been dissipated. None of the funds were used to pay off the mortgage on the family home, which is jointly owned by the employee and her husband.

The company’s various rights

77. The company has two claims against the employee which may give rise to an interest in land. Both are based upon tracing in equity, in application of the principles whereby equity will recognise that a defendant’s assets are subject to a trust or charge in favour of the plaintiff. The company can contend that the employee holds her aliquot interest in the holiday house on trust for the company. Alternatively, it can assert an equitable charge over the employee’s interest in the holiday house to secure the repayment of the funds used to purchase it. (In Australia, as the primary judge with respect correctly observed, the position is different at law and in equity: Brady v Stapleton (1952) 88 CLR 322; [1952] HCA 62 at 337-8, and see Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588; [2000] HCA 25 at [25], in both of which appeals the joint judgment referred with approval to what was said by Sir George Jessel MR in In Re Hallett’s Estate; Knatchbull v Hallett (1880) 13 Ch D 696 as to the wider operation of tracing in equity than at law.)

78. The company also has ordinary rights of execution, based on its existing judgment debt, against the employee’s assets. Those assets include the employee’s aliquot interests in the holiday house and the family home. For the purpose of alienation, each joint tenant is conceived as entitled to dispose of an aliquot share: Wright v Gibbons (1949) 78 CLR 313; [1949] HCA 3 at 330; Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425; [2015] HCA 2 at [48] and [112], and this extends to the compulsive alienation effected by execution of a judgment on land (effected by a sale by the Sheriff pursuant to s 113 of the Civil Procedure Act 2005 (NSW)): see for example Gowans J’s analysis in Mitrovic v Koren [1971] VR 479 at 481. The “ordinary rights of execution” referred to above do not give an unfettered choice to the judgment creditor or the Sheriff. In particular, UCPR r 39.6 imposes an obligation on the Sheriff not to sell land before any other property of the judgment debtor. In cases where the judgment debt is large, and the only substantial asset of the judgment debtor is an interest in land, little may turn on this. (It may be noted that the requirement to favour execution upon chattels is as ancient as any of the 21st century rules of civil procedure. Chapter 9 of Magna Carta is to similar effect:

“Nec nos nec ballivi nostri seisiemus terram aliquam nec redditum pro debito aliquo, quamdiu catalla debitoris sufficiunt ad debitum reddendum”,

(Neither we nor our bailiffs shall seize any land or rent for any debt, so long as the chattels of the debtor are sufficient to repay the debt).

For the history of execution against a debtor’s land, which seems not to have been possible at common law, but was authorised by statute no later than 1285, see C Johnston Edwards, The Law of Execution upon Judgments and Orders (London, Stevens and Sons, 1888) pp 163-166.)

79. To summarise: equitable tracing yields a proprietary judgment which of itself creates an interest in property. Execution of a money judgment permits the judgment debtor’s assets (which may include an interest in land) to be sold. The two processes are quite distinct.

80. The distinction between a judgment which itself creates a proprietary interest, and a money judgment capable of being executed against the judgment debtor’s land, is a crisp one in New South Wales. It was analysed by Dr Sykes in “The Effect of Judgments on Land in Australia” (1953) 27 Australian Law Journal 226 and 306 and by Kitto J (with whom Dixon CJ and Windeyer J agreed) in Hall v Richards (1961) 108 CLR 84; [1961] HCA 34 at 93-94. Both Dr Sykes and Kitto J referred to the fact that Tasmania and Western Australia had enacted local equivalents to s 13 of the Judgments Act 1838 (1 & 2 Vic c 110) which provided that a judgment, once registered, operated as an equitable charge on land, but no such law was ever enacted in New South Wales. Dr Sykes noted at 229 that:

“It is a matter of cardinal import here to remember that the English Act of 1838 by which the Legislature made the entry of judgment confer a specific security interest was not copied in New South Wales.”

81. To the contrary, the New South Wales position was reflected in s 13(1) of the Judgment Creditors’ Remedies Act 1901 (NSW), and is now reflected in s 112(3) of the Civil Procedure Act: “A judgment in any action at law does not of itself bind or affect any land.” The position is all the stronger in the case of Torrens land: see Black v Garnock (2007) 230 CLR 438; [2007] HCA 31 at [18]-[23]. It has an important consequence when a defendant in civil proceedings is a joint owner of property (including, by way of very common example, the case where a spouse who is a joint owner of a family home borrows funds without security). The plaintiff who sues the spouse can obtain judgment and may be able to levy execution upon the spouse’s aliquot share of the family home without having joined the borrower’s spouse to the litigation, although the spouse will necessarily be involved when the judgment is executed.

82. The company has other avenues open to it as well, following from the fact that prima facie the money in the employee’s hands is held on trust for the company. The company can sue the daughter directly, as a volunteer who received the traceable proceeds of property which in equity remained that of the company. It can also sue the husband, for he too has obtained for no consideration an aliquot interest in the holiday house which represents the traceable proceeds of property which in equity was the company’s. The company’s claims against daughter and husband may be both proprietary (for example, a constructive trust may be imposed on the car or the holiday house when the daughter or husband learned that the funds had been misappropriated) and personal (requiring them to account for the misappropriated funds retained by each of them): see Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462 at [143]-[145] and Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732; [2016] NSWCA 81 at [45]-[47]. For the purposes of this simplified example, which is directed to a plaintiff’s choices, I am not seeking to be exhaustive, and I am putting entirely to one side such defences as the daughter or husband may have.

83. If the employee has ample assets, and if the car and the holiday house have not appreciated in value, then nothing will turn on the proprietary remedies the company may be able to obtain, and the company may choose simply to execute the judgment debt against the employee’s assets. However, if the employee has other creditors and has insufficient assets to discharge all of the employee’s debts, then the company’s proprietary claims against both the employee and her husband and daughter may assume considerable importance. So too if the car or the holiday house has appreciated in value since they were acquired.

84. Some of the documents in this appeal suggest that Mr Boyd has few assets and large creditors other than Mrs Thorn. That may explain the focus in this litigation upon tracing into Mr Boyd’s interest in the Boyd family home. Mrs Thorn has a money judgment against Mr Boyd, but has not sought to enforce it by way of execution against Mr Boyd’s assets. Nor has she sought to sue Mrs Boyd as a volunteer who obtained a benefit from the use of Mrs McAuley’s money to reduce Mr and Mrs Boyd’s joint indebtedness to the bank. Instead, Mrs Thorn has sought to obtain a proprietary remedy against a particular asset to which Mrs McAuley’s money contributed, namely, Mr Boyd’s interest in the Boyd family home.

85. To return to the example, the issue which underlies this appeal is analogous to the company’s right to assert a proprietary claim against the employee’s aliquot interest in the beach house. Mrs Thorn is not seeking a proprietary interest in Mrs Boyd’s aliquot interest in the family home, nor is she seeking to execute the money judgment against Mr Boyd’s interest in the family home.

The different procedural consequences flowing from the company’s various rights

86. This appeal illustrates some important procedural aspects of the company’s choices, concerning the joinder of the husband and daughter to the litigation.

87. First, the company does not need to join the daughter or husband to the litigation until and unless it seeks a proprietary remedy in the holiday house, the car or the family home. That is so irrespective of whether the company believes that funds have been used to acquire assets now owned or co-owned by the daughter or husband, or is entirely ignorant of how its funds have been disbursed. The question of parties turns, at least primarily, on whether the orders sought directly affect the rights and liabilities of the daughter and husband: Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 56; John Alexander’s Clubs at [131]; Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [51]. A plaintiff is free to advance a case which is narrower than the broadest case which the available facts entitle him or her to bring. Like much in litigation, which focusses on the adjudication of parties’ claims, it is the making of a claim which is decisive on the question of parties.

88. Secondly, from the moment the company seeks a proprietary remedy in respect of the car, the daughter is a necessary party. That is because an order in favour of the company is detrimental to all others who have or claim an interest in that property: John Alexander’s Clubs at [131]-[132].

89. Thirdly, from the moment the company seeks a proprietary remedy in respect of the holiday house considered as a whole, or more narrowly in respect of the husband’s interest in the holiday house, the husband is a necessary party, for the same reason.

90. Fourthly, if and when the company seeks a proprietary remedy in respect of the employee’s interest in the holiday house, then the position as to joinder of the husband is more complex. Certainly, if granting the remedy would amount to a severance of the joint tenancy of the employee and her husband, then the husband’s joinder is necessary. By way of analogy, in Pralle v Scharka [1978] 2 NSWLR 450, a decision in a specific performance suit for the sale of a joint tenant’s interest in land, Needham J held that the other joint tenant was a necessary party, because the consequence for the other joint tenant was that he would cease to be a joint tenant with the defendant vendor and would become a tenant in common with the plaintiff purchaser. His Honour rejected the submission that the fact that a joint tenancy was inherently susceptible of being severed in this way meant that the other joint tenant was not a necessary party. I respectfully share the view expressed by White J in this litigation (see [2016] NSWSC 588 at [25]) that where the effect of an order sought by a plaintiff is to sever a joint tenancy, then there is a sufficient direct affectation of the other joint tenants’ rights to render them necessary parties. Apart from anything else, severance of the joint tenancy deprives the co-owner of any hope that he or she might succeed to ownership of the entire property. That must amount to the requisite direct affectation of the co-owner’s interest.

91. When is a joint tenancy of land severed? An effective conveyance or transfer to a third party is sufficient. In contrast, “the grant of a mere incumbrance or burden on the estate” is insufficient to do so. In Lyons v Lyons [1967] VR 169, McInerney AJ held that a registered mortgage of Torrens title land given by one joint tenant did not sever the joint tenancy (although his Honour noted that it was clear that a mortgage of old system title land did so). In Corin v Patton (1988) 13 NSWLR 15 at 25, Hope JA (with the agreement of Priestley and Clarke JJA) endorsed those two classes of case, and added a third: “if a joint tenant enters into a transaction which gives the other party to the transaction a right to acquire a legal estate in the land, specifically enforceable in equity, the joint tenancy, although not severed at law until the legal title passes is nonetheless severed in equity.”

92. When a constructive trust is imposed on property held by a defendant, the plaintiff will become entitled to require the property to be transferred to him or her (or, if it is a part interest in property which is not specifically severable, judicial sale). It is important to recognise that “some constructive trusts create or recognise no proprietary interest”, but instead impose “a personal liability to account in the same manner as that of an express trustee”: Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 at [4], and see Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266 at [74]-[81]. Such an order does not affect any interest in property, and does not sever a joint tenancy. But that is not the sort of constructive trust that would be sought by the company in the example, nor is it what was sought by Mrs Thorn.

93. It follows that at least if the company seeks to have the employee’s interest in the holiday house held on constructive trust for it, then (a) no later than when such an order is made, the joint tenancy would be severed in equity and (b) accordingly, the other joint tenant, the employee’s husband, is a necessary party from such time as a constructive trust is claimed. (Because what presently matters is the seeking of an order which carries with it an obligation to transfer the property to the plaintiff, it is unnecessary for present purposes to distinguish between “institutional” and “remedial” constructive trusts: see Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462 at [141]-[157]. This is as well, because the constructive trust ordered in this case, based on findings of breach of fiduciary duty and unconscionability, has aspects of both.) On the other hand, merely seeking a charge over the employee’s interest in the holiday house will not sever the joint tenancy, and it may be that in that circumstance the employee’s husband would not be a necessary party, although I do not express a view on that point.

94. Fifthly, it is for the plaintiff to join all necessary parties: Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR 112 at 117; Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [51]. If the plaintiff obtains orders from a superior court directly affecting non-parties, those orders are not nullities but are, as a general proposition, apt to be set aside, as a matter of right: BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216 at [133]. That reflected the relatively strict position in equity as to parties, of which Griffith CJ once said that Chancery had pressed this rule to its “extremest limits”: Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492; [1910] HCA 44 at 504. This was the source of John Jardyce’s remark in Chapter 8 of Bleak House: “we are made parties to [the suit], and must be parties to it, whether we like it or not” (original emphasis). Dickens was there referring to the position under Lord Eldon’s chancellorship prior to the reforms effected by the Chancery Amendment Act 1852 (15 & 16 Vic c 86), of which the Commissioners had said “There is probably nothing in Chancery procedure which has tended so much to augment expense and delay as the rules of the Court as to parties”: see W Cornish et al, Oxford History of the Laws of England (Oxford University Press, 2010), Vol XI, p 666.

95. The position is different in probate proceedings, in which principles derived from ecclesiastical law mean that a non-party who chooses not to intervene will be bound: Osborne v Smith (1960) 105 CLR 153; [1960] HCA 89 at 158-159. In John Alexander’s Clubs at [137]-[138], the High Court endorsed the general proposition from BP Australia Ltd v Brown as to orders being apt to be set aside, but left open the possibility that it might be subject to an exception if the plaintiff were unaware of the rights of the non-party. It will not be necessary to consider this possible exception in this appeal; Mrs Thorn’s pleading alleged that the money was used to reduce the mortgage on the Miranda property, and she had filed caveats on the property and must be taken to have been aware that Mrs Boyd was a co-owner.

96. Sixthly, the consequences of a plaintiff failing to join all parties differed at common law and in equity prior to the Judicature legislation. It is not necessary to summarise here the series of mid-nineteenth century piecemeal reforms in England dealing with misjoinder and nonjoinder of parties at law and in equity. It will be sufficient to note that that was the background to the important new rule which came into effect in 1875, was applicable both at common law and in equity and was expressed in general terms:

“No action shall be defeated by reason of the misjoinder of parties, and the Court may in every action deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, in the manner prescribed by Rules of Court, and on such terms as may appear to the Court or a Judge to be just, order that the name or names of any party or parties, whether as plaintiffs or as defendants, improperly joined be struck out, and that the name or names of any party or parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added”: r 9 of the Rules of Procedure contained in the Schedule to the Supreme Court of Judicature Act 1873.

97. In Werderman v Société Générale D’Électricité (1881) 19 Ch D 246, each of Sir George Jessel MR, Lush LJ and Lindley LJ held that a demurrer was no longer available where there had been a failure to join a necessary party: at 250-1, 254 and 255. Lindley LJ said:

“[A] demurrer on the ground that the Messrs Brogden are not parties would have been sustainable before the Judicature Act, but when we look at the Order which is in force relating to demurrers, and look also to the Order which is in force relating to misjoinder and nonjoinder of parties, it appears to me perfectly plain that the old practice of demurring for want of parties is at an end, and that the demurrer on that ground cannot be allowed.”

98. Much the same point was made in the High Court, hearing an appeal from Queensland, in Barnes & Co Ltd v Sharpe (1910) 11 CLR 462; [1910] HCA 26, dealing with a complaint that not all of the plaintiffs had been joined. Higgins J said at 482 that:

“In Queensland, as well as in England, and in other States which have adopted the Judicature system, the Court is no longer driven, in the case of misjoinder or non-joinder, to dismiss the action, or to grant a nonsuit or allow a plea in abatement. The Court has full power to rectify mistakes as to parties before or at the trial; and judgment may be given for such one or more of the defendants as are found to be liable, without any amendment.” (citations omitted.)

99. As is implicit in Higgins J’s observations (made at a time when all mainland States save for New South Wales had enacted Judicature legislation), those changes were delayed in New South Wales. Under the unfused procedure, pleas in abatement continued under the Common Law Procedure Act 1899 (NSW): see Pt IV, ss 41-45 and R Walker, The Practice of the Supreme Court of New South Wales at Common Law (Law Book Co of Australasia, 4th ed 1958), pp 39-41. Likewise, demurrers continued to be available in equity under the Consolidated Equity Rules 1902 (NSW): see Pt VIII, rr 101-112. W Parker, The Practice in Equity (Law Book Company of Australia, 1930), p 190 noted by reference to Werderman the abrogation of demurrers for want of parties in England, and said that “this decision ... would appear to regulate the practice here”. It is not necessary to determine whether or not that suggestion was the fact.

163. That assertion is said to have been substantiated by the absence of an originating process, what is said to be the fabrication of an originating process, in the concluding paragraphs of a “position statement” which was said by Mrs Boyd in an affidavit to provide “reasons and justification” for the orders sought in her notice of motion before White J. There were statements about alleged coercion and an attempt to extort a financial offer of settlement. The concluding paragraph of the position paper was as follows:

“”the cruelty of the 5½ year delay, the plaintiff’s avoidance of any hearing of the substantive issues, the harassment and persecution of me as a non-party and wilful disregard of my legal rights, the denial of natural justice, exploitation of unrepresented parties in addition to the proceedings being an abuse of process, based on conflict of interest and an intent to pervert the course of justice for the purpose of obtaining property by fraud being more than sufficient justification for the proceedings to be dismissed and voided with full costs awarded to both defendants, if not, the proceedings are worthy of the granting of leave to be heard by the High Court.”

164. Due allowance must be made to the fact that Mrs Boyd did not have the benefit of legal advice, although the document refers to her conversations with barristers and contains numerous extracts from Court decisions and legal texts (mostly on the topic of judgments obtained by fraud). Although it is plain that Mrs Boyd was willing to make extravagant allegations, there is nothing in the documents invoked in support of those submissions so far as I can see to suggest any material injustice in the absence of a rehearing of Mrs Thorn’s limited claim to trace the $200,000 which in equity was hers into Mr Boyd’s interest in the Miranda property. Ordinary principles suggest the availability of a claim against Mrs Boyd, a volunteer, subject to the possibility of defences, but Mrs Thorn’s claim is narrower than that.

165. Separately from the above, Mrs Boyd has contended that the primary judge erred in failing to “insist on nothing short of indisputable evidence” that proceeds obtained by her husband from Mrs McAuley were used to reduce her and her husband’s indebtedness to the bank. In oral submissions to Sackar J she denied receiving any benefit of the $200,000. She repeatedly referred to a “misappropriation” by the Bank. She said “The situation as stands today is the National [Australia] Bank still has appropriated the 200,000 gift funds”. Although these submissions were not advanced by counsel appearing for her in this Court, it is desirable to explain why, in my opinion, Sackar J was correct to dismiss this aspect of the rehearing.

166. Mr and Mrs Boyd were indebted to the National Australia Bank in 2009, which had granted a “NAB Base Variable Rate Home Loan”. The bank issued a statement to them, which was tendered before Sackar J, showing a credit of $200,000 on 12 August 2009, to that extent reducing the joint indebtedness.

167. Mr Boyd swore an affidavit stating among other things under the heading “2009 Misappropriation and Fraud” that “NAB misappropriated the gift funds to fully pay out and eliminate a business loan” and “on 16 September 2009 the NAB fraudulently combined my personal home loan with the remaining split ‘business loan’ (processed in 2006 as a home loan) to create one large ‘home loan’ ...”. The affidavit went so far as to say that “Further evidence of fraud exists in the home loan and business cheque account statements the NAB falsified to appear to comply with my instructions”. Page 21 of the annexures to Mr Boyd’s affidavit is a copy of the bank statement (described as “Figure 4”) showing the $200,000 deposit to Mr and Mrs Boyd’s home loan as to which it is said:

“This statement falsely states $200,000 deposited into my personal home loan on 12 August 2009 when Figure 5 below proves this to be false.”

168. Figure 5 appears to be an internal NAB document. Mr Boyd calls it a “File Summary Report” but it is also described as a “Lending Submission”. It appears to have been annotated in order to explain Mr Boyd’s argument (for example, it contains two rows each of which is described as “Wrongfully Combined”). The point which Mr Boyd seeks to derive from it appears to be that the submission was dated 4 September 2009 and approved on 16 September 2009, yet the document shows an indebtedness on the home loan of $309,547 – which is to say, an indebtedness that does not include the $200,000 credited on 12 August 2009. Thus he says:

“The date of the document being 16 September 2009 proves the funds used to eliminate the unsecured genuine business loan in the trading name of the business were the funds from the gift ... the statement subpoenaed from the NAB which the plaintiff relied on to escalate the former claim to the Supreme Court to include a charge of my property was intentionally false and misleading being a consequence of relying on information that is the subject of another legal matter”.

169. It is plain that the internal NAB document may have reflected information supplied by Mr Boyd, or obtained by a bank officer, prior to the unexpected deposit of $200,000. It is not unknown for a bank to take three or four weeks, or longer, to process an application for a variation to its lending to a borrower. It is also plain that there is no sufficient basis to conclude that the error, if there was one, was intentional. But in light of the concessions made subsequently, these allegations may be rejected concisely.

170. First, in evidence before Sackar J was a portion of Mr Boyd’s cross-examination before Robb J in which he conceded that “the money from Betty’s account was transferred into your account with Sutherland Credit Union” and, in answer to the question as to the following transfers made by him, Mr Boyd said:

“There was a $200,000 transfer to what we believe at that time, ok this is where we can’t go much further because I can’t substantiate it, it shows up on the statement you’ve got, transferred into the National Australia Bank account, and that was to be applied to our mortgage, our loan account.”

171. Mr Boyd confirmed that transfer by reference to the bank statement immediately thereafter. He then went on to say that the remaining $109,000 paying off his home loan had been drawn down from superannuation funds.

172. It is true that what was said by Mr Boyd, and found by Robb J, might not bind Mrs Boyd, who was not at that time a party. But no evidence was sought to be tendered by Mrs Boyd to the contrary of any of this.

173. In my view, Sackar J was entirely justified in concluding that the $200,000 was received by Mrs and Mrs Boyd to reduce their indebtedness to the bank. Senior counsel appearing for both Mr and Mrs Boyd in this Court confirmed that:

“ALEXIS: The second appellant derived a benefit in the sense that the mortgage was down and her equity was correspondingly increased, we accept that.”

Counsel thereafter confirmed that “the concession was a considered concession”. There is no reason to doubt that it was properly made. The evidence is overpowering.

174. Finally, it is true that if I am wrong about the narrowness of the rehearing before Sackar J, and Mrs Boyd was entitled to put in issue matters contrary to the findings and orders that Mr Boyd had breach his fiduciary duty and acted unconscionably, then she has been denied the opportunity to do so. As noted at the outset, there is nothing to suggest that she would have been able to adduce any different evidence, or make any submissions which had not been made by Mr Boyd.

175. Further, Mrs Boyd candidly acknowledges (in written and oral submissions) that Mrs Thorn is entitled to execute her existing judgment against Mr Boyd. All that is sought is to trace into Mr Boyd’s interest in the Miranda property. There is a real practical distinction between the two, especially if Mr Boyd’s solvency is doubtful. But it seems to me to be no small thing for there to be a rehearing before a tracing remedy is available against Mr Boyd’s interest in the property when it is accepted that Mrs Thorn is presently entitled to execute her unchallenged judgment against that interest in the property.

176. In addition to the above, I bear in mind the time and cost that this litigation has taken to date. There have been six days of hearings before Robb J, two days before White J, two days before Rein J, and two days before Sackar J, in addition to the appeal in this Court. Mr and Mrs Boyd have been unrepresented in each of those hearings, save in this Court, but that has not of course prevented the executrix, Mrs Thorn, from incurring legal costs. It seems likely that the costs incurred by Mrs Thorn would be of the same order of magnitude, and may even have exceeded, the $200,000 which is the amount of principal presently in issue. Section 60 of the Civil Procedure Act obliges this Court to implement its practice and procedure with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. That is a further consideration which tells against a further hearing.

177. I have concluded that there is no basis for entering judgment in favour of Mrs Boyd. So to do would give rise to an inconsistency of final judgments in relation to the same subject matter, and would do so in circumstances where there has not been a full hearing on all of the merits, the absence of which is what gives rise to Mrs Boyd’s entitlement to set aside the orders.

178. Nor would I order a retrial. I am not satisfied that there has been a substantial miscarriage of justice given the limited relief sought by Mrs Thorn. Ultimately, the onus lies on an appellant who seeks a new trial to satisfy the Court that the errors pointed to have occasioned some substantial wrong or miscarriage, failing which the prohibition in UCPR 51.53 prevents an order of a new trial. For the reasons summarised above, I do not consider that Mrs Boyd has discharged that onus. Although the parties’ written submissions did not address the possibility of a rehearing or the matters summarised above telling against it, the difficulties faced by Mrs Boyd by reason of the failure to supply a defence or draft defence, or the evidence she would seek to adduce at any such hearing, were exposed during the argument on the appeal (see appeal transcript T10.50-11.16, 13.12-19, 18.2-23 and 40.19-43).

179. I would add one final matter. At all stages before the hearing in this Court, the judges in the Equity Division have not had the benefit of submissions from barristers retained by Mr and Mrs Boyd. For that matter, the lawyers retained on behalf of the plaintiff likewise have not had the benefit. Instead, they have had to deal with a series of poorly formulated applications, most of which lacked any proper foundation in the evidence. This Court has been greatly assisted by the highly competent counsel retained by all parties.

Ground 2

180. Mr Boyd challenges the order that from the proceeds of sale of his interest in the Miranda land, there be paid not merely amounts attributable to the judgment debt of $200,000 plus interest, but also the costs ordered against him. His point is a simple one. Mrs Thorn was, in respect of those costs, an unsecured creditor, and should not have been elevated over other unsecured creditors through the form of the order made by this Court.

181. The partial indemnity provided by a costs order gives rise to merely an unsecured right against the party. Something more is required (such as a covenant in a mortgage that the mortgagee’s costs of enforcement are also secured by it) in order for the costs to be secured. In support of the contrary proposition, Mrs Thorn relied upon the words used by Bryson AJ in Arrow Custodians Pty Ltd v Pine Forest of Australia Pty Ltd [2008] NSWSC 839; 14 BPR 26,149 at [35], describing the sensible administrative efficiencies when proceeding under s 66G, which included the processes being subject to the control of the Court, “abridging processes of accounting and execution by directing how funds under its control are to be distributed”. Mrs Thorn contended that those words were broad enough to extend to the liability under a costs order. I do not agree, nor does anything in this Court’s determination in Ross v Ross [2010] NSWCA 301; 15 BPR 28,945 alter the position.

182. Mr Boyd candidly conceded that this was not a point which had been raised before Sackar J, when orders proposed by Mrs Thorn had been supplied. It is, with respect, correct in principle. If Mr Boyd’s submission were not correct, there would also be the undesirable consequence that, so long as the quantification of the entitlement of Mrs Thorn to those costs remained undetermined (and this Court was told that no steps had been taken in the last two and a half years to quantify those costs, even though no challenge has been made to the order), the statutory trust would have to continue, at least to that extent.

183. This ground of appeal is made out.

Ground 3

184. By this ground, Mr and Mrs Boyd sought variations to the entitlement of the trustees to pay from the proceeds of the sale of the property (a) their own charges and (b) the real estate agent’s commission and fees. They accepted that those expenses should be burdened on Mr Boyd’s share of the proceeds of sale. The difficulty with the submission is that trustees were appointed last year on a particular basis, and Mr and Mrs Boyd now wish this Court to make orders which (it may be presumed, else there would be no utility in making the application) will or may have a direct impact upon the terms on which the trustees’ office is held. Yet the trustees have not been joined to the appeal, and their attitude to the variations proposed by ground three is not known. On this basis alone, as Mr Alexis came close to conceding during argument, the orders cannot be made. If they were made, then the trustees would have a right ex debito justitiae to apply to set them aside: Chappuis v Filo (1990) 19 NSWLR 490 at 512. This, after all, is the gravamen of Mrs Boyd’s complaint in ground one of the appeal.

185. Either the variation sought in this ground of the appeal will have a material impact upon the exercise of the power of sale and the remuneration of the trustees or it will not. If it does, then the variation should not be made without first hearing from the trustee. If it does not, no good reason has been made out on appeal to interfere with the exercise of power by the primary judge.

Orders

186. Accordingly, the appeal should be allowed in relation to ground 2, but otherwise dismissed.

187. Mrs Boyd was the only appellant who advanced the main ground of appeal, ground 1. Mr Boyd was the only appellant who advanced ground 2. Both Mr and Mrs Boyd advanced ground 3.

188. Because the grounds of appeal were discrete, and because different grounds were advanced by different appellants, there is potential for unfairness if a costs order were made which did not distinguish between the failure on the part of Mrs Boyd on all grounds she advanced, and the partial success of Mr Boyd. Despite the need for an apportionment of costs between grounds, this is an appropriate case for exercising the discretion as to costs by reference to issues, in accordance with what was said in James v Surf Road Nominees Pty Ltd [No 2] [2005] NSWCA 296 at [32]-[33]. I propose that Mrs Boyd pay Mrs Thorn’s costs referable to ground 1, that Mrs Thorn pay Mr Boyd’s costs referable to ground 2, and that Mr and Mrs Boyd be jointly and severally liable to pay Mrs Thorn’s costs referable to ground 3. To be clear, a set-off would arise as between Mr Boyd and Mrs Thorn in relation to the costs referable to grounds 2 and 3. Given that on the view I take the appeal has only been allowed in a minor respect on a point not raised before Sackar J, there is no occasion to alter the exercise of the discretion as to costs by Sackar J.

189. If any party wishes to be heard in support of an application for a different form of order as to costs, application may be made within the time provided by UCPR r 36.16.

190. I propose the following orders:

1. Appeal allowed in part.

2. Set aside order 6b made on 22 September 2016.

3. Otherwise dismiss the appeal.

4. Mrs Boyd to pay Mrs Thorn’s costs of the appeal referable to ground 1. Mrs Thorn to pay Mr Boyd’s costs referable to ground 2. Mr and Mrs Boyd be jointly and severally liable to pay Mrs Thorn’s costs referable to ground 3.

191. EMMETT AJA: At all material times before 13 March 2015, the appellants, Mr Ian Boyd and Mrs Dawn Boyd, owned a property situated at Miranda, New South Wales (the Property) as joint tenants. On 8 May 2015, a notice of transfer severing the joint tenancy was registered pursuant to s 97 of the Real Property Act 1900 (NSW) and, thereafter, each of Mr Boyd and Mrs Boyd owned an interest in the Property as tenants in common in equal shares. The principal question in this appeal is whether, as between Mrs Boyd and the estate of Mrs Betty McAuley (the Estate), Mrs Boyd was bound by a determination in the Equity Division that Mr Boyd held his interest in the Property upon a constructive trust for Mrs McAuley to the value of $200,000 and that the sum of $200,000 plus interest constituted an equitable charge on Mr Boyd’s interest in the Property. Mrs McAuley, who was Mr Boyd’s aunt, died on 26 December 2012 and the respondent, Mrs Catherine Thorn, is the executrix of her will.

192. Proceedings were commenced on behalf of Mrs McAuley against Mr Boyd in the Equity Division (the Equity Proceedings). In the Equity Proceedings, declarations were sought that Mr Boyd obtained moneys from Mrs McAuley in circumstances involving undue influence or unconscionable conduct and applied the moneys in repayment of a loan made by National Australia Bank Limited (NAB) on the security of a mortgage of the Property. The moneys in question consisted of the sum of $260,000 transferred on 6 August 2009 from funds of Mrs McAuley to an account of Mr Boyd’s.

193. The Equity Proceedings were heard by Robb J in the first instance. On 25 August 2014, for reasons published on that day, Robb J found that Mrs McAuley suffered from a cognitive impairment that prevented her from making a sound judgment in relation to any major financial transaction and that Mr Boyd accepted that Mrs McAuley suffered from such a mild cognitive impairment. Robb J found that there was clearly a question about Mrs McAuley’s capacity, and that Mr Boyd ignored a warning by her solicitor that there was a question about her capacity to make a gift to him such that he should not accept any gifts. Robb J concluded that the retention by Mr Boyd of the sum of $260,000 paid to NAB would be unconscionable and set aside the transfer of funds to NAB. His Honour made an order requiring Mr Boyd to repay the money to the Estate.

194. On 6 November 2014, various orders were made giving effect to Robb J’s conclusions of 25 August 2014 (the 2014 Orders). In particular, order 5 of the 2014 Orders stated that Mrs Thorn was entitled to trace the sum of $260,000 into any property in respect of which Mr Boyd repaid a mortgage secured on such property with that sum or any part thereof.

195. On 12 February 2015, there was a further hearing before Robb J in relation to the 2014 Orders. On 13 March 2015, Robb J made a declaration to the effect that Mr Boyd held his interest in the Property upon a constructive trust for Mrs Thorn to the value of $200,000 and declared that the sum of $200,000 plus interest constituted an equitable charge on Mr Boyd’s interest in the Property (the 2015 Orders).

196. On 24 March 2016, Mrs Boyd commenced further proceedings in the Equity Division to set aside the 2015 Orders made by Robb J. Mrs Boyd did not challenge the validity of the 2014 Orders or ask that the 2014 Orders be set aside. On 11 May 2016, White J set aside the 2015 Orders, apart from a costs order against Mr Boyd. White J also ordered that Mrs Boyd be joined as a second defendant in the Equity Proceedings. There has been no appeal from the 2014 Orders or from the orders made by White J on 11 May 2016.

191. On 19 September 2016, Sackar J dealt with several matters, including the following:

(a)   whether the Court should make declarations and orders to the same effect as the 2015 Orders, which had been set aside by White J on 11 May 2016;

(b) whether the Property should be sold pursuant to s 66G of the Conveyancing Act 1919 (NSW) (the Conveyancing Act) or by judicial sale.

198. On 22 September 2016, Sackar J made declarations as follows:

1. Mr Boyd holds his unencumbered interest in the Property upon a constructive trust for the Estate to the value of $200,000;

2. So much of that judgment debt as represents a principal sum of $200,000 and interest constitutes an equitable charge on Mr Boyd’s title to the Property.

Sackar J also made orders as follows:

3. Messrs Timothy William Daley and Liam Bailey be appointed as trustees for sale of the Property under s 66G of the Conveyancing Act;

4. The Property be vested in such trustees upon the statutory trust for sale under the Conveyancing Act;

5. The trustees pay out of the proceeds of sale:

1. any statutory duties or charges;

2. the real estate agent’s commission and charges; and

3. the amounts owing to any person having a secured interest.

6. The trustees pay out of Mr Boyd’s share of the proceeds of sale:

1. so much of the judgment debt as represents a principal sum of $200,000 plus interest; and

2. the costs of Mrs Thorn that, on 13 March 2015, Robb J ordered Mr Boyd to pay.

The Appeal

199. Mr and Mrs Boyd now appeal from the orders made by Sackar J. By their notice of appeal filed on 28 October 2016, they rely on three grounds as follows:

1. Sackar J erred in granting declarations and orders in the nature of proprietary relief against the Property that were founded upon the findings of unconscionable conduct made by Robb J on 25 August 2014 and the 2014 Orders in circumstances where Mrs Boyd, as a joint owner of the Property, was not bound by those findings and orders, not having been joined as second defendant in the Equity Proceedings until after the 2014 Orders had been made.

2. Sackar J erred in making order 6(b) that the trustees pay Mrs Thorn’s costs of the proceedings out of Mr Boyd’s share of the proceeds of sale of the Property in circumstances where those costs were not the subject of the constructive trust or the equitable charge.

3. Sackar J erred by making orders 5(b), 7 and 8 that the trustees pay the real estate agent’s commission and charges and deduct all of the trustees’ expenses from the proceeds of sale, when those items should only be deducted from Mr Boyd’s share of the proceeds of sale.

Only Mrs Boyd relies on ground 1 and only Mr Boyd relies on ground 2. Both Mr Boyd and Mrs Boyd rely on ground 3.

Ground 1

200. There can be no doubt that Mr Boyd is bound by the determination made by Robb J in 2014 that he acted in breach of fiduciary duty and unconscionably and held $260,000 on trust. His position was the same as if there had been a separate determination of questions of liability and personal relief. It appears that Mr Boyd has never sought to appeal from that determination. Declaration (1) made by Sackar J on 22 September 2016 relates only to the unencumbered interest in the Property held by Mr Boyd. That declaration was made on the basis of the findings made by Robb J on 25 August 2014. Insofar as the findings made by Robb J are concerned with a claim in personam against Mr Boyd, that does not affect Mrs Boyd. Insofar as declaration (1) relates to the interest of Mr Boyd in the Property, that also does not affect Mrs Boyd. The only order that would affect Mrs Boyd is the order made under s 66G of the Conveyancing Act. That order was made after Mrs Boyd became a party to the Equity Proceedings.

201. I have had the great advantage of reading in draft form the proposed reasons of Macfarlan JA and the proposed reasons of Leeming JA.

202. I agree with Macfarlan JA that, although the declaration of a charge in favour of Mrs Thorn related only to Mr Boyd’s interest in the Property, and the trustees for sale were directed to pay the judgment debt in favour of Mrs Thorn out of Mr Boyd’s share of the proceeds, the orders under s 66G of the Conveyancing Act for the appointment of trustees for sale related to the Property as a whole. The orders therefore affected Mrs Boyd’s interest in the Property as tenant in common. Her legal rights were prejudicially affected by the orders as they required the sale of the Property, of which she was a part owner.

203. However, Mrs Boyd did not challenge any of the 2014 Orders, which were expressly based on Robb J’s findings that Mr Boyd had obtained $260,000 of Mrs McAuley’s money in circumstances that involved unconscionable conduct and breach of fiduciary duty. The rehearing before Sackar J was confined to the remaining challenged orders. Mrs Boyd’s entitlement to adduce evidence, and to be heard on weaknesses in the substantive case against Mr Boyd, was circumscribed by her choice not to challenge some of the orders already made. She was not at liberty to seek to establish issues in the rehearing that are inconsistent with the orders made in the litigation that she did not challenge.

204. Mrs Boyd complains that Sackar J relied upon the earlier findings and orders as the foundation for granting relief in respect of the Property and that no attempt was made to re-prove that Mr Boyd had unconscionably procured and retained the $200,000, or that he had done so in breach of fiduciary duty. Thus, Sackar J proceeded on the basis that it was necessary to prove that the $200,000 was used to reduce debts secured by the mortgage over the Property, but accepted as a premise that Mr Boyd’s conduct was unconscionable and in breach of fiduciary duty.

205. I agree with Leeming JA that the approach adopted by Sackar J was correct. That is to say, it is critical that the rehearing ordered by White J did not extend to the 2014 Orders. Rather, Mrs Boyd’s challenge was limited to the 2015 Orders. While Mrs Boyd was unrepresented at the time and it may be that she did not appreciate the full consequences of her selective challenge to the orders made by Robb J, White J made clear the limitations upon the rehearing that he ordered. I agree with Leeming JA that, in circumstances where Mrs Boyd did not seek to set the 2014 Orders aside, and obtained a rehearing by reason of the setting aside of the 2015 Orders, she is now not entitled to contend for findings the effect of which would be inconsistent with orders in the same proceedings.

206. As indicated above, there were two elements of the case brought on behalf of the Estate leading to a proprietary claim over Mr Boyd’s interest in the Property. The first was that Mr Boyd had taken Mrs McAuley’s money in breach of fiduciary duty and unconscionably, as a result of which the money was held on trust for her. The second was that Mr Boyd had used some of that money to reduce his indebtedness to NAB, which was secured over the Property. The first element was established by orders 1 and 5 of the 2014 Orders. The second was established by the 2015 Orders. Only the second was the subject of the further hearing before Sackar J.

207. It would have been open to Mrs Boyd to challenge the findings of breach of duty and unconscionability once proprietary relief was sought against land of which she was a joint owner. However, that was not what Mrs Boyd did. Her limited application did not challenge the 2014 Orders. The rehearing to which Mrs Boyd was entitled was a hearing the scope of which reflected the limited challenge made in her summons. Sackar J proceeded on that basis. I agree with Leeming JA that his Honour was correct to do so.

Ground 2

208. Mr Boyd complains that the effect of the order that the costs ordered against him be paid from the proceeds of the sale of his interest in the Property puts Mrs Thorn in a position of priority over other unsecured creditors. The point in question was not raised before Sackar J when orders were proposed by Mrs Thorn. Further, there was no evidence to indicate the effect that the order might have. There was no evidence, for example, to indicate that unsecured creditors might, in the circumstances of this case, be affected. It is difficult to see the basis for any complaint about order 6(b), which is the basis for ground 2. There is no challenge to the costs order in order 4 made by Robb J on 13 March 2015. The only complaint is that it be paid out of Mr Boyd’s share of the proceeds of sale. That might be a matter for complaint by other unsecured creditors of Mr Boyd. It is difficult to see any basis for his complaint. However, I am mindful of the observation made by Leeming JA that one consequence of the order is that, so long as the quantification of Mrs Thorn’s costs remains undetermined, the statutory trust would have to continue to the extent that it was not otherwise fulfilled. With considerable reservation, I agree with Leeming JA that ground 2 is made out.

Ground 3

209. Ground 3 is concerned with the expenses of sale. It is not unusual for an order under s 66G of the Conveyancing Act to authorise the costs and expenses of sale by trustees for sale to be paid out of the proceeds of sale before division of the proceeds amongst those entitled. It is not clear whether Mrs Boyd opposed the making of an order under s 66G. If she opposed the making of the orders, there is no reason why the usual order should not be made whereby the costs of sale are deducted from the total proceeds.

Conclusion

210. In the circumstances, I agree with the orders proposed by Leeming JA.

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Amendments

11 October 2018 - [68(2)] – second sentence, “to” deleted from between “property” and “be”

[77] – bracketed text, “1879” changed to “1880”

[91] – third sentence, “VR 160” changed to “VR 169”

[96] – quote, citation, “Court” changed to “Procedure”, and “Schedule 1” changed to “the Schedule”

[99] – citation of Walker text, spelling of “Australasia” corrected

[106] – first sentence, “or possession” changed to “for possession”

[118] – quote, second para, “give” changed to “[gift]”

[124] – quote, 15th para, “you Honour” changed to “you[r] Honour”

[129] – second sentence, “of” deleted from between “by” and “Robb J”; order 2, “summarily” inserted before “set aside”, and spelling of “justitiae” corrected; order 3, “so” changed to “to”

[130] – second sentence, “reason” changed to “reasons”

[150] – second sentence, comma deleted after “succeed”

[156] – second sentence, “in” added before “our reasoning”; final sentence, “are” added before “apt”

[163] – “paragraphs of the position paper were” changed to singular

[169] – final sentence, “subsequent” deleted before “concessions”

[175] – fourth sentence, “it seems to be” changed to “it seems to me to be”

[187] – second sentence, “grounds 1 and 3” changed to “ground 3”

[188] – final sentence, “be” changed to “been”

24 August 2017 - 24 August 2017 - [71] - "John Alexander's Clubs" - case name corrected.

[78] - "given" replaced with "give".

[78] - "of" deleted after "favour".

[83] - "debtors" replaced with "creditors".

[84] - "debtors" replaced with "creditors".

[87] - "the shares" replaced with "the car".

[87] - "the" deleted before "whether".

Decision last updated: 11 October 2018