Cantoni & Cantoni
[2021] FamCA 464
•2 July 2021
FAMILY COURT OF AUSTRALIA
Cantoni & Cantoni [2021] FamCA 464
File number(s): PAC 1840 of 2018 Judgment of: FOSTER J Date of judgment: 2 July 2021 Catchwords: FAMILY LAW – PROPERTY – where application for review of the senior registrar’s determination ordering sale of unfinished property – where no application for interim property orders – where property requires completion of outstanding building and rectification works – where significant difficulty progressing any sale is the nature and extent of the caveators’ interests that need to be determined – where parties demonstrated little capacity to implement previous orders made as to completion of property – where consideration of applicable principles – where order made for sale of the property as is – where order for funds to be preserved pending final hearing Legislation: Family Law Act 1975 (Cth) s 114 Cases cited: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Number of paragraphs: 68 Date of hearing: 18 May 2021 Place: Parramatta Solicitor for the Applicant: Ms Khalil of Khalil Family Lawyers Pty Ltd Solicitor for the Respondent: Mr Goldsmith of Goldsmith Lawyers ORDERS
PAC 1840 of 2018 BETWEEN: MS CANTONI
Applicant
AND: MR CANTONI
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
2 JULY 2021
THE COURT ORDERS THAT:
1.All outstanding interlocutory applications be dismissed.
2.Mr B from C Real Estate is hereby appointed Trustee for Sale of the property situated at D Street, Suburb E, Victoria, more particularly described in the Certificate of Title Volume … Folio … (“the Suburb E Property”) with the property to be placed on the market for sale by such method determined by the Trustee forthwith for the best price reasonably obtainable and for the purposes of this order the property shall vest in the Trustee for Sale.
3.Upon sale of the Suburb E Property, the proceeds of sale are to be distributed in the following order and priority:
(a)In payment of all selling expenses, including the Trustee’s fees, selling agent’s commission, advertising expenses and conveyancing costs;
(b)In payment to discharge the Westpac mortgage registered on title to the Suburb E property;
(c)In payment of the balance then remaining to be held on trust for the parties by the Trustee for Sale in an interest bearing account in the name of the Trustee as trustee for the parties pending further order of the Court.
4.Pending settlement of the sale of the Suburb E Property:
(a)The parties are to keep the property in at least the same state of repair as at the date of these Orders;
(b)The parties shall do all things required of them to facilitate the sale of the Suburb E Property;
(c)The parties must deliver up possession of the Suburb E Property in vacant possession to the Trustee forthwith;
(d)Neither party shall further encumber the Suburb E Property or draw down on the existing Westpac mortgage registered on title without the prior written consent of the other party.
5.All previous Orders as to the completion and/or construction of the Suburb E Property and the sale of the Suburb E Property are discharged.
6.In the event that either of the parties refuse or neglect to sign any document required by them to be signed, the Registrar of the Family Court of Australia shall be and is hereby empowered to sign such documents on behalf of that party pursuant to section 106A of the Family Law Act 1975 (Cth).
7.The parties serve a copy of these orders and these Reasons for Judgment on each of the caveators within seven days from this date.
8.Liberty to each party and to the Trustee for Sale to apply as to implementation or enforcement of these orders.
9.The proceedings be listed before a registrar for directions so as to facilitate compliance with trial directions such as to facilitate the matter proceeding to final hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cantoni & Cantoni has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
On 12 March 2021 a senior registrar made certain orders in the context of ongoing property proceedings between the parties including orders in relation to the sale of an uncompleted house.
Relevantly, the orders made by the senior registrar were as follows:
(5)Within 7 days, the parties are to do all such things as are necessary to appoint Mr B from C Real Estate to sell the property situated at D Street, Suburb E, Victoria, more particularly described in the Certificate of Title Volume … Folio … (“the Suburb E Property”) and the property be placed on the market for sale within 28 days of engaging such real estate agent.
(6) The following applies in relation to the sale of the Suburb E Property:
(a)The mode of sale is to be jointly agreed between the parties in writing, and in default of agreement, as recommended by the selling agent;
(b)The advertising budget is to be jointly agreed between the parties in writing, and in default of agreement, as recommended by the President of the Real Estate Institute of Victoria on the application of either party;
(c)The reserve price is to be jointly agreed between the parties in writing, and in default of agreement, as recommended by the President of the Real Estate Institute of Victoria on the application of either party;
(d)The conveyancing solicitor is to be as agreed between the parties, but failing agreement between the parties for a period in excess of 14 days, the conveyancing solicitor will be nominated by the President of the Victorian Law Institute.
(7)If the President of the Real Estate Institute of Victoria or the President of the Victorian Law Institute is unwilling or unable to do the matters required of them pursuant to these Orders, then the Court shall determine those matters, and leave is granted to the parties to relist the matter on 7 days’ written notice with respect to same.
(8)At settlement of the sale of the Suburb E Property, the proceeds of sale are to be distributed in the following order and priority:
(a)First, to pay all selling expenses, including the selling agent’s commissions, advertising expenses and conveyancing costs;
(b)Second, to discharge the Westpac mortgage registered on title to the Suburb E property;
(c)Third, to pay any assessed capital gains tax, with an estimated amount to be set aside and held in trust by the appointed conveyancing solicitor until such time as an assessment is undertaken by the Australian Taxation Office
(d)Fourth, the balance then remaining to be held on trust by the appointed conveyancing solicitor in an interest bearing controlled money account in the names of both parties and not distributed pending written agreement between the parties and/or court order as to its distribution.
(9) Pending settlement of the sale of the Suburb E Property:
(a)The parties are to keep the property in at least the same state of repair as at the date of these Orders;
(b)The parties shall do all things required of them to facilitate the sale of the Suburb E Property;
(c)The parties must deliver up possession of the Suburb E Property in vacant possession and in accordance with the terms of the sale contract on or before the due date for settlement of the Suburb E Property; and
(d)Neither party shall further encumber the Suburb E Property or draw down on the existing Westpac mortgage registered on title without the prior written consent of the other party.
(10)All previous Orders as to the completion and/or construction of the Suburb E Property and the sale of the Suburb E Property are discharged.
(11)In the event that either of the parties refuse or neglect to sign any document required by them to be signed, the Registrar of the Family Court of Australia shall be and is hereby empowered to sign such documents on behalf of that party pursuant to section 106A of the Family Law Act 1975.
(12) All outstanding Interim Applications before the Court are otherwise dismissed.
Context
The present application is an application for review of the senior registrar’s determination.
The applicant wife and respondent husband commenced cohabitation in 1996 and later married in early 2002. The parties separated in March 2018. The wife alleges that the husband perpetrated several incidents of domestic violence against her in early 2018. The wife relocated to Sydney with the children in April 2018.
There are two children of the parties’ marriage; a daughter who during the course of the proceedings has turned 18 and a son presently aged 14.
In September 2016, before separation, the parties entered into a building contract with F Pty Ltd for building work to be undertaken to the property at D Street, Suburb E, Victoria (“the Suburb E Property”). It is not in contention between the parties that this property is the only asset of significance in the property pool of the parties.
In December 2017 F Pty Ltd ceased work on the Suburb E Property due to non-payment of instalments with remaining work on the property included joinery, installation of the kitchen and landscaping. There has been no further work on the property since this time.
The present primary proceedings
On 30 April 2018 the wife filed an Initiating Application for parenting orders in this Court, which she amended in June of that year to include an application for property adjustment orders.
On 14 September 2018 orders were made with the consent of the parties that facilitated the Real Estate Institute of Victoria appointing an independent Trustee to take control over the Suburb E Property for the purpose of the completion of its construction and sale. It was noted that the parties would be able to fund the finalisation of the construction of the property with a facility they presently had in place.
The orders relevantly provided:
1.That, within thirty (30) days of the making of these Orders, the parties do all such acts and things, and sign all necessary documents, for the purpose of instructing the Real Estate Institute of Victoria to appoint an independent Trustee (“the Trustee”) to take control over the property situated at D Street, Suburb E, Victoria … (hereinafter referred to “the Suburb E Property”), for the purpose of the completion of its construction and sale.
2.That both parties do all such acts and things to provide the Trustee with all necessary information and contacts to assist with completing the construction of the Suburb E Property.
3.That the Trustee be authorised to access and obtain all necessary documents and information required for the purpose of assisting with the completion of construction of the Suburb E Property.
4.That both parties take all reasonable steps to give effect to any advice, recommendation or direction issued by the Trustee for the purpose of completing the construction of the Suburb E Property and effecting a sale.
5.That, upon completion of the construction for the Suburb E Property, the Trustee shall:
(a)Cause to be prepared a Contract of Sale for the Suburb E Property.
(b)List the Suburb E Property for sale for private treaty or auction, whichever is expected to obtain the best selling price for the said property.
(c)Elect a real estate agency to market the Suburb E Property for sale.
(d)Direct the parties to sign all necessary documents with the nominated Real Estate Agent.
6.Following the sale of the Suburb E Property, the proceeds of sale are to be distributed in the following manner and priority:
(a)In payment of the costs associated with the sale, including the real estate agent’s fees, the Trustee’s fees, conveyancing fees and auctioneer’s fees (if any).
(b)In payment of any rate adjustments as at the date of settlement of the sale.
(c)In payment of any outstanding loans associated with the Suburb E Property, including caveatable interests, as agreed to between the parties.
(d)The balance of funds to be held in a Controlled Trust Monies Account with the Real Estate Institute of Victoria, or such other independent body or organisation as recommended by the Trustee.
The orders made on 14 September 2018 have not been complied with by either party.
On 25 July 2019 the husband met with Mr J (from H Company), Mr G (from K Company) and his solicitor at the Suburb E property for the purpose of discussing the cost and amount of works required to complete the Suburb E Property for the purpose of sale, and to appoint Mr J as the contract administrator to complete the outstanding work.
On 13 August 2019 the September 2018 orders were varied with the consent of the parties to appoint Mr J as contract administrator to complete the remaining works on the Suburb E Property. The orders provided:
1. Order 9 (“the orders”) dated 14 September 2018 be varied as follows:
(a)Mr J of H Company is appointed as contract administrator for the property known as D Street, Suburb E, Victoria … (hereinafter referred to “the Suburb E Property”), for the purpose of the completion of it’s construction and sale.
2.Orders 10-14 are varied by deleting the words “the Trustee” and substituting it with “Mr J”.
On 2 June 2020 the husband received a quotation from K Company for the completion of the works on the property. The husband asserts that the quotation is a costs plus contract for the sum of $489,330.52, which far exceeds the amount the bank is prepared to lend the parties.
On 15 December 2020 a letter was sent by the wife’s solicitor to the husband’s solicitor proposing that Mr J be removed as the contract administrator and the parties engage K Company for the completion of the building works on the Suburb E property.
On 16 December 2020 K Company sent an email to the husband’s solicitor advising that they are prepared to sign a fixed priced contract for the sum of $576,340 and they are prepared to wait for payment until the Suburb E property is sold and they will lodge a caveat over the property to protect their interest.
The husband’s solicitor sent an email in response to Mr G’s email, advising Mr G that s 18 of the Domestic Building Contracts Act 1995 (Victoria) does not entitle a builder to put a caveat on the title of building site land. Mr G advised the husband’s solicitor that the parties could sign a document providing him with a caveatable interest over the property to secure payments owing to him, and the husband would not do so, but he is prepared to rely on the wife providing him with a caveatable interest over her interest in the property.
Due to the uncertainty of the works required, the lack of funds and the difficulties associated with the current COVID-19 pandemic, including sudden border closures, the husband no longer supports the orders made by consent to complete the building works. On 28 January 2021 he filed an Application in a Case seeking that a real estate agent be appointed to sell the Suburb E Property and within 30 days of that appointment the property be put on the market for sale.
The wife filed a Response to the Application in a Case on 26 February 2021 seeking orders that she have liberty to rely on the evidence of Mr B, real estate agent, as to his opinion of the value of the Suburb E Property and in the alternative that a single expert be appointed to value the property in its current state and if construction was completed, and that the wife be appointed as the contract administrator and trustee for the completion of construction of the Suburb E Property, noting that she will appoint Mr G of K Company as the builder.
On 12 March 2021 interim orders were made by a senior registrar which are the subject of this application.
The present application
Subsequent to orders made by the senior registrar on 12 March 2021, the wife on 17 March 2021 filed an Application in a Case seeking a review of the senior registrar’s orders.
On 26 March 2021 the orders made on 12 March 2021 were stayed pending the determination of the wife’s Application in a Case filed 17 March 2021.
The present application was listed on 29 April 2021 for judicial case management, at which time the proceedings were adjourned for hearing on 18 May 2021. The parties were ordered to file and serve any further updating affidavit material to be relied upon by them by no later than 12 May 2021, and to file and serve any written submissions or updated written submissions to be relied upon by no later than close of business on 17 May 2021.
Subsequently, on 17 May 2021 the wife filed an Outline of Case setting out with more particularity interlocutory orders sought by her. The orders sought by her were, in summary, as follows:
1.That Mr J be removed as the contract administrator and trustee for the completion of the construction for the Suburb E property.
2.That the wife is appointed as the contract administrator for the completion of the construction of the Suburb E property, noting that she will appoint Mr L as the builder to complete the building of the property for the fixed price sum of $711,040.
3.That within 28 days from the completion of the Suburb E Property, Mr B from C Real Estate be appointed as the selling agent of the Suburb E Property and the Property be sold by private treaty at the earliest possible date.
4.That upon the sale of the Suburb E property, the proceeds of the sale be disbursed as follows;
(a)Payment of agent’s commission and advertising expenses and legal expense of the sale;
(b) Payment of any money due and owing to the mortgagee;
(c)Payment of the funds payable to K Company in the amount of $711,040;
(d)The net balance to be held in a Controlled Monies trust Account held in the name of the parties pending further order of the Court.
5. That the Husband pay the wife’s costs of and incidental to the proceedings.
The husband sought orders as in his Application in a Case filed 28 January 2021, in summary, seeking orders that the Suburb E Property be sold “as is”.
At interim hearing the wife relied upon the following documents:
(a)her Response to Application in a Case filed 26 February 2021;
(b)her financial statement sworn 12 July 2018;
(c)her affidavit sworn 11 March 2021;
(d)her updating affidavit sworn 8 April 2021;
(e)her further updating affidavit sworn 12 May 2021;
(f)the affidavit of Mr M sworn 12 May 2021;
(g)the affidavit of Mr L sworn 4 February 2021;
(h)the affidavit of Mr L sworn 9 April 2021;
(i)the affidavit of Mr L sworn 12 May 2021;
In support of his application the husband relied upon:
(a)his Application in a Case filed 28 January 2021;
(b)his affidavit sworn 28 January 2021;
(c)the affidavit of Mr N sworn 10 March 2021;
(d)the affidavit of Mr N sworn 9 April 2021.
The Wife’s Evidence
The wife contends that due to ongoing delays and the lack of engagement by Mr J as a consequence of earlier orders that he should be removed as the contract administrator for the proposed rectification and completion of works.
The wife proposes that she be appointed trustee for the purposes of the ongoing construction works notwithstanding that she asserts no qualifications or experience in that area.
The wife unilaterally approached Mr L, a licensed builder in South Australia, in relation to the proposed works. Mr L in December 2020 provided a fixed price estimate of $576,350 inclusive of GST to complete the necessary works with payment to be deferred until sale of the property.
The wife, otherwise, asserts that the present Westpac loan facility secured on the property has a redraw facility remaining of about $234,000 that will not be needed to be drawn down by reason of the arrangement for payment with the builder.
The building quotation from Mr L has now increased to the sum of $711,000 by reason of deterioration of building and vandalism. The building has now been locked up to avoid further damage and deterioration. A second quotation from another builder provided a building estimate of $815,430 inclusive of GST.
It is the wife’s understanding that Mr L would be required to take out indemnity insurance in relation to the proposed works and, more importantly, would be required to make application to the Victorian Building Authority for approval of the proposed works. It appears that any building contract is required to be signed by both parties and will require a guarantor with the wife proposing that her father, Mr M, be guarantor.
The wife, otherwise, proposes that a Mr B of C Real Estate be appointed as selling agent. The husband, through his solicitors, has previously agreed to the appointment of that agency for the purposes of selling the property.
The wife complains that in default of rectification completion works being undertaken there is likely to be little equity in the property available for adjustment between the parties.
The wife asserts that the matrimonial assets comprise:
(a)the subject property with an outstanding liability to Westpac of $1.85 million;
(b)the household furnishings and personal effects of the parties;
(c)the wife’s modest Westpac account;
(d)the wife’s superannuation of approximately $20,000.
Otherwise, the wife asserts that the parties owe approximately $550,000 to her parent’s family company, P Pty Ltd, in addition to which she asserts that the company has advanced to her since her move to Sydney sums totalling about $230,000.
The husband, she otherwise asserts, is in arrears of child support as at March 2021 in the sum of $46,890.
The wife’s father Mr M, a solicitor, has through the family company advanced to the wife the sum of $39,060 to pay out mortgage arrears and asserts he will provide $6,500 per month to meet ongoing mortgage payments as they fall due and payable. It appears that the payment of mortgage arrears by the wife has precluded foreshadowed enforcement action by the mortgagee. The wife undertakes that she will pay mortgage payments as they fall due and payable.
Mr M has, otherwise, signed a personal guarantee in favour of the proposed builder Mr L, with respect to the proposed rectification and completion works in the amount of $711,040. Mr M, otherwise, asserts that in the event of additional costs incurred he is prepared to meet those costs.
Mr L gives evidence of his engagement historically in relation to the rectification completion proposals, his original fixed price quotation of $576,340 inclusive of GST. Mr L gives evidence that there are significant administrative matters to be attended to prior to work being able to commence, including approvals to amendments to existing architectural plans, re-lodgement of the amended building application for approval as a consequence of the lapsing of the previous building approval, engagement of civil engineers to amend previous engineering documentation, amendment to current architectural drawings and, as referred to above, obtaining requisite indemnity insurance.
Mr L asserts that once works are able to be commenced they will be finalised within “two or three months” to a finalised state ready for marketing and sale, with such estimate being made in anticipation of there being no issue with the administrative matters referred to above.
The husband’s evidence
The husband asserts that given the nature of the wife’s proposal for the completion of the property, the lack of funds available to the parties to complete the project and that the wife’s proposed builder is based in Adelaide, in circumstances where there were and presently are significant COVID-19 restrictions, it is more prudent to sell the property as is without proceeding to further remediation or completion works.
The husband acknowledges an assertion by the wife that the property in its current condition has a value of approximately $3 million.
Concerningly, the husband asserts that there are five Caveats registered against the title to the property. Particulars as to those caveats as a consequence of a Land Register search dated 12 March 2021 reveal caveats as follows:
(a)Q Pty Ltd asserting a charge over the property by reason of an agreement with the husband dated 10 May 2018;
(b)R Pty Ltd asserting a charge over the property by reason of an agreement with the wife dated 11 July 2018;
(c)S Pty Ltd asserting a charge or interest by reason of an agreement with the husband dated 6 August 2018;
(d)R Pty Ltd claiming a charge over the property by reason of an agreement with the husband dated 31 January 2019;
(e)T Pty Ltd claiming a charge pursuant to a mortgage with the husband dated 12 August 2019.
The nature and extent of the claims by the caveators remains to be determined. Neither party addresses the issues of the caveats and the prospective interest that the caveators may have in the parties’ joint interest or their individual interest in the property.
Discussion
The husband does not seek an interim property distribution but in substance seeks an order for the sale of the property as is, with the net proceeds of sale to be paid into a controlled monies account. In that circumstance, clearly the interests, if any, of the various caveators would need to be agitated in the context of the primary property proceedings between the husband and wife.
In substance, the husband seeks orders that would as best as possible preserve the asset pool of the parties from further diminution, in circumstances where it is proposed that there would be a significant loan liability accrued in respect to the proposed rectification completion works and where there is no admissible single expert evidence, other than an assertion as to the value of the property in its current state, as to the value of the property should the works be completed at a cost in excess of $700,000.
More concerning is the significant outstanding mortgage balance to the primary mortgagee in the sum of about $1.88 million. At present they have both expended significant legal fees to date and will incur further fees should the matter proceed to final hearing at some time in 2022.
The history of this matter clearly demonstrates that the parties remain significantly in disagreement as to the fate of the subject property.
The wife in submissions, significantly, contends that she does not seek interim adjusting orders but orders in the aid of substantive property relief sought by her. In substance, she seeks to have outstanding building works completed and on sale the proceeds of sale to be held in a controlled monies account.
A significant difficulty in progressing any sale of the property is the interests of the caveators, with the nature and extent of their interests as a consequence of their caveats remaining an issue to be determined in the context of a final hearing. To that end, in the event of a sale of the property, it is appropriate that the sale of the property be without prejudice to the interests of the various caveators, in that the net proceeds of sale, after selling costs and discharge of mortgage, be retained in a controlled monies account and that that sum be subject to any proved claim by the caveators.
It is appropriate that each of the caveators be provided with a copy of the orders made in the context of the present application and be invited to consent to the sale of the property, with their interests in the net proceeds of sale to await determination at final hearing or the unlikely event of the parties reaching agreement. It is to be expected that in the event that any of the caveators are reluctant to adopt such a course they will be joined in these proceedings and be the subject of orders by this Court at their peril as to costs.
Section 114 of the Family Law Act 1975 (Cth) (“the Act”) provides that the Court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate. In this matter, of course, the proceedings relate to the property of the parties, in particular, their primary asset.
The grant of an injunction is discretionary and the basis upon which an order or injunction may be made is well settled. In this case, the Court is readily satisfied that there is a serious issue to be tried, that being the question of overall property entitlement as between the parties.
The husband seeks orders that would address the prospect of the diminution of the overall property pool by reason of accumulating liabilities and or diminution of value by reason of the matters referred to above. In this matter, the Court is readily satisfied that the foundational basis for the grant of orders or injunctions as sought by him has been made out.
The Court must have regard to the balance of convenience as between the parties in the context of the orders sought by both of them. The determination about the balance of convenience may thus be an inference drawn from the facts and circumstances established by the evidence: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 321-322.
In Patterson (supra), Gleeson CJ said after discussing the discretionary nature of the remedy at 321–325:
It is not difficult to imagine situations in which justice and equity would require the granting of an injunction to prevent dissipation of assets pending the hearing of an action even though the risk of such dissipation may be assessed as being somewhat less probable than not.
The parties have demonstrated little capacity to properly implement previous orders that have been made to address the issue of, in effect, the abandonment of their primary asset post separation. As a consequence of their inaction the property remains incomplete, had fallen into a state of disrepair and had been vandalised. It is to be inferred that no further damage will be incurred as a consequence of the property, it appears, now being secured.
The property has significant debt by way of registered first mortgage and as a consequence of submissions, it appears that there are significant funds asserted to be owed to the various caveators, not the least of which there is sum of more than $400,000 asserted to be owed to just one of the caveators.
The parties’ post separation allowed mortgage arrears to accrue to the extent of about $39,000, precipitating foreshadowed enforcement action by the mortgagee.
There is no single expert evidence as to the prospective value of the subject property in the event that works at a cost of over $700,000 are undertaken. The outcome of such an endeavour as proposed by the wife is simply uncertain. There may be an ultimate situation where she is simply unable to recover funds to be borrowed by her from her father’s family company.
In all the circumstances, it is appropriate that there be an order that the subject property be sold as is.
The parties had previously agreed on an agent for the purposes of sale and to facilitate an orderly sale, it is more appropriate that the agreed agent be appointed as trustee for sale of the property, to sell the property at the best price reasonably obtainable. After payment of selling costs and the trustee’s costs of sale, the net proceeds of sale should be applied in discharge of the secured mortgage and the remaining funds be held in a controlled monies account in trust by the trustee for sale, pending further order of the Court or agreement of the parties in writing.
As discussed above, it is incumbent upon the parties to provide notice to each of the caveators that the sale is without prejudice to any interest that they may assert in the proceeds of sale and that should they assert such interest they are at liberty to seek leave to intervene in these proceedings and prove their debt and/or entitlement accordingly.
In the event that any of the caveators are unwilling to adopt such an approach, it is incumbent upon the parties, or either of them, to make application for such caveator to be joined as a party and to seek appropriate relief as against the caveator accordingly.
As the question of capital gains tax will await the parties finalising their personal income tax returns for the financial year in which the sale takes place, such liability will not be known for some time but funds available in the controlled monies account on final hearing, if any, will be available to meet those calculated liabilities. There is thus no need for an order setting aside specific funds to meet such contingent liability.
Orders will be made accordingly.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 2 July 2021