Craggs IW Pty Ltd v Darrell Crouch & Associates Pty Ltd - [2023] WASC 402

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   CRAGGS IW PTY LTD -v- DARRELL CROUCH & ASSOCIATES PTY LTD [2023] WASC 402
CORAM:   ACTING MASTER MCDONALD
HEARD:   21 MARCH 2023, SUBMISSIONS FILED ON 4 APRIL 2023
DELIVERED          :   24 OCTOBER 2023
FILE NO/S:   CIV 2073 of 2022
BETWEEN:   CRAGGS IW PTY LTD
Plaintiff
AND
DARRELL CROUCH & ASSOCIATES PTY LTD
Defendant

Catchwords:

Trusts - Sale of land - Deposit paid by purchaser - Deposit held by vendor's real estate agent - Application for release of deposit - General Conditions of Sale cl 1.2 - Plaintiff one of 32 sellers - Orders sought for release of deposit to plaintiff's lawyers pursuant to s 93 of the Trustees Act 1962 (WA) - Statutory construction - Deposit as property subject to a trust - Practice and procedure - Joinder of relevant parties

Legislation:

Interpretation Act 1984 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Trustees Act 1962 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	T B Bradley
Defendant	:	A M Prime

Solicitors:

Plaintiff	:	CS Legal
Defendant	:	Anthony Prime Legal Services

Case(s) referred to in decision(s):

Abraham v Johns [No 2] [2010] VSC 212
Barrington v Lee [1972] 1 QB 326
Burt v Claude Cousins & Co Ltd [1971] 2 QB 246
Harold Joseph Martin Cadwallender by his next friend Stavroulla Cadwallender v The Public Trustee [2003] WASC 72
Hastingwood Property Ltd v Saunders Bearman v Anselm [1991] Ch 114
Manzanilla Ltd v Corton Property & Investments Ltd (Court of Appeal, EWCA Civ, 13 November 1996, unreported)
Mohammadi v Bethune [2018] WASCA 98
Ngarluma Aboriginal Corporation RNTBC v The Attorney General of Western Australia [2014] WASC 245; (2014) 14 ASTLR 164
Ooranya Pty Ltd v ISPT Pty Ltd [No 2] [2019] WASC 453
Potters v Loppert [1973] Ch 399
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Burman (1993) 1 Qd R 49
Re the Honourable G D Kierath, Minister for Heritage; ex parte City of Fremantle [2000] WASCA 156; (2000) 22 WAR 342
Riabkoff v Abernergy Properties Pty Ltd [2012] NSWSC 724
Rockeagle Ltd v Alsop Wilkinson [1992] Ch 47
Romanus v Saleh [2008] NSWSC 656
Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66; (2014) 313 ALR 184
Skinner v Trustee of the Property of Reed (A Bankrupt) [1967] Ch 1 194
Tambakis v Ferluga [2010] SASC 122; (2010) 107 SASR 246
Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2] [2022] WASC 460
Wurth Australia Pty Ltd v Burgess [2012] WASC 504

ACTING MASTER MCDONALD:

This is an application by the plaintiff for orders for the release of $100,000 plus interest paid as deposit by the Buyer to the seller's real estate agent (the defendant) following a terminated sale of land contract. The contract is for the sale of a strata complex which comprises 32 properties.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 402
Decision Date: 24 OCTOBER 2023

CaseChat Overview and Summary

Craggs IW Pty Ltd sought an order from the Western Australian Supreme Court to have a deposit held by Darrell Crouch & Associates Pty Ltd, a real estate agent, released to Craggs IW Pty Ltd's lawyers. The deposit was paid by a purchaser under a contract for the sale of land, with Craggs IW Pty Ltd being one of 32 sellers. The contract contained a clause stating that the deposit was held by the agent in trust. The plaintiff sought the release of the deposit under section 93 of the Trustees Act 1962 (WA), which allows the court to make orders in respect of trust property. The defendant argued that the plaintiff lacked standing to make the application.

The court had to determine whether the plaintiff had standing to apply for an order for the release of the deposit held in trust by the defendant. The court also needed to decide whether the power to make such an order lies in section 93 of the Trustees Act or elsewhere, such as the parens patriae jurisdiction under section 16 of the Supreme Court Act 1935 (WA).

The court found that the interpretation of section 93 of the Trustees Act, which confers standing on those who wish to seek an order for the appointment of a new trustee or in respect of trust property, was consistent with the decision in Ngarluma Aboriginal Corporation. However, the power to make such an order was found elsewhere in the Trustees Act. The court considered the authorities in which similar orders had been made, and held that the court had the power to act under section 93 of the Trustees Act or to make a vesting order under section 78 of the Trustees Act. The court also held that the parens patriae jurisdiction continued to confer the power on the court to supervise the trust and to deal with questions arising from its administration.

The court ordered that the deposit held by the defendant be released to Craggs IW Pty Ltd's lawyers, and that the defendant pay the plaintiff's costs of the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The interpretation of s 93 of the Trustees Act given in Ngarluma Aboriginal Corporation is consistent with one that confers standing on those who wish to seek an order under the Act for the appointment of a new trustee or in respect of trust property. However, the power of the court to make such an order, as was the case in Ngarluma Aboriginal Corporation, was found elsewhere in the Trustees Act. In Harold Joseph Martin Cadwallender by his next friend Stavroulla Cadwallender v The Public Trustee [2003] WASC 72 (Cadwallender v The Public Trustee), Heenan J considered an application by a beneficiary of a court appointed trust fund for orders that he was no longer a person under a disability and that monies held by the Public Trustee pursuant to the court appointed trust vest in the plaintiff and be transferred to him absolutely. His Honour considered those authorities in which similar orders had been made. The power was variously considered to be in the exercise of the parens patriae jurisdiction conferred under s 16(1)(d) and s 23 of the Supreme Court Act 1935 (WA), or as deriving from the delegation of the prerogative of the Crown. In considering the jurisdiction to terminate the trust and vest the property in the plaintiff it was submitted that the Supreme Court had the power to act under s 93 of the Trustees Act or to make a vesting order under s 78 of the Trustees Act. His Honour held:[77]… While accepting that s 93 of the Trustees Act contains a power upon which the court may act, I do not consider that it is only such power or jurisdiction which this Court possesses and that, the power recognised by McKechnie J under s 16 of the Supreme Court Act conferring the parens patriae jurisdiction continues.[77] Cadwallender v The Public Trustee [2003] WASC 72 [37]. Later, his Honour considered whether the court retains any jurisdiction over the parties in respect of the administration of the trust once the proceedings that gave rise to the court appointed trust have terminated by way of judgement or settlement. His Honour held:[78]As it is the parens patriae jurisdiction which confers the power on the court to supervise the trust and to deal with questions arising from its administration, then that same jurisdiction must empower the court to determine whether or not the circumstances which have prompted the necessity for the establishment of the trust have disappeared so that the person, whose interests the court was until that point protecting, may take over the control of property which has been held under supervision for his or her benefit. It is difficult to see how this could be anything but the last act in the exercise of that protective jurisdiction.[78] Cadwallender v The Public Trustee [2003] WASC 72 [42]. Finally, his Honour considered whether the Supreme Court has the power to make orders in respect of the trust when the trust was created by an order of another court which retains the jurisdiction to supervise that order. His Honour determined:[79]… The short answer to this question is that such a power is expressly conferred upon this Court by s 93 of the Trustees Act 1962. However, the authorities plainly establish that the court also has the 'parens patriae' jurisdiction which also enables it to determine the application.[79] Cadwallender v The Public Trustee [2003] WASC 72 [51].