David Musarra and Fabio Suffell v Uptime Computer Management Pty Ltd in capacity as former trustee of the Hollins Uptime Trust
[2024] WASC 269
•25 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DAVID MUSARRA and FABIO SUFFELL as trustees of THE MUSARRA UPTIME TRUST and THE SUFFELL UPTIME TRUST -v- UPTIME COMPUTER MANAGEMENT PTY LTD in capacity as former trustee of THE HOLLINS UPTIME TRUST & ANOR [2024] WASC 269
CORAM: MASTER RUSSELL
HEARD: 24 JULY 2024
DELIVERED : 24 JULY 2024
PUBLISHED : 25 JULY 2024
FILE NO/S: CIV 2325 of 2023
BETWEEN: DAVID MUSARRA in his capacity as trustee of THE MUSARRA UPTIME TRUST and THE SUFFELL UPTIME TRUST
First Plaintiff
FABIO SUFFELL in his capacity as trustee of THE MUSARRA UPTIME TRUST and THE SUFFELL UPTIME TRUST
Second Plaintiff
AND
UPTIME COMPUTER MANAGEMENT PTY LTD in capacity as former trustee of THE HOLLINS UPTIME TRUST
First Defendant
CRAIG ANTHONY HOLLINS in his capacity as trustee of THE HOLLINS UPTIME TRUST
Second Defendant
Catchwords:
Practice and procedure - Motion for judgment in default of appearance - Application for order for sale pursuant to s 126(1) of the Property Law Act 1969 (WA) - Order for sale of property - Turns on own facts
Legislation:
Property Law Act 1969 (WA), s 7, s 126(1)
Rules of Supreme Court 1971 (WA), O 9 r 1(4), O 13 r 1(1), O 13 r 9(1), O 13 r 9(1)(a), O 13 r 9(2)(b)
Transfer of Land Act 1893 (WA)
Result:
Judgment entered for plaintiffs in default of appearance
Order for sale of property
Representation:
Counsel:
| First Plaintiff | : | Mr C S Williams |
| Second Plaintiff | : | Mr C S Williams |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Solomon Brothers |
| Second Plaintiff | : | Solomon Brothers |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Case(s) referred to in decision(s):
Agostina Teresa Raphael as exector of the will of Tonino Luciano Randazzo v Randazzo [2023] WASC 312
Bombara v Bombara [2010] WASC 314
Bray v Bray [1926] HCA 40; (1926) 38 CLR 542
David Alan Collison as administrator of the estate of Diane Carol Collison v Collison [2024] WASC 87
Martin-Smith v Woodhead [1990] WAR 62
Trainor v Trainor [2021] WASC 40
MASTER RUSSELL:
(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar. Authorities and other references have also been footnoted rather than appearing in the body of the reasons.)
Overview
The plaintiffs, David Musarra and Fabio Suffell in their capacity as trustees of the Musarra Uptime Trust and the Suffell Uptime Trust, commenced this proceeding by writ of summons indorsed with a statement of claim on 24 November 2023, seeking an order for the sale of land in lieu of partition pursuant to s 126(1) of the Property Law Act 1969 (WA) (Act).
The land the subject of the application is an office building situated at and known as Unit 16, 386 Wanneroo Road, Westminster, being the land described as Lot 16 on Strata Plan 17160, and which is the whole of the land comprised in Certificate of Title Volume 1830 Folio 786 (Property).
The first defendant, Uptime Computer Management Pty Ltd (Uptime) is the registered proprietor of the Property and was, until 19 July 2016, the trustee of the Musarra Uptime Trust, the Suffell Uptime Trust and the Hollins Uptime Trust (together the Uptime Trusts). Until that time, Uptime held an undivided one third interest in the Property on behalf of each of the Uptime Trusts, in its capacity as trustee of those trusts.
David Musarra and Fabio Suffell are the directors of Uptime. They were jointly appointed as trustees of the Musarra Uptime Trust and the Suffell Uptime Trust with effect from 18 July 2016.
The second defendant, Craig Hollins, was appointed as trustee of the Hollins Uptime Trust with effect from 1 May 2024.
Mr Hollins was joined as the second defendant to the proceeding by orders made on 27 June 2024. An amended writ of summons was filed on 3 July 2024.
The plaintiffs claim that:
(a)since 18 July 2016, Uptime has held an undivided one third interest in the Property as bare trustee for each of the Uptime Trusts;[1]
(b)they collectively hold a two thirds' equitable interest in the Property in their capacity as trustees of the Musarra Uptime Trust and the Suffell Uptime Trust;[2]
(c)partition of the Property is not possible or practical;[3] and
(d)they are entitled to, and seek, an order that the Property be sold pursuant to s 126(1) of the Act.
[1] Amended Writ of Summons filed 3 July 2024, Statement of Claim (SOC) [10].
[2] SOC [11].
[3] SOC [12].
The defendants have each been served with the amended writ. The first defendant was also served with the writ.
No appearance having been entered by either defendant, the plaintiffs apply, by motion filed on 18 July 2024, for judgment in default of appearance pursuant to O 13 r 9 of the Rules of the Supreme Court 1971 (WA) (RSC).
In support of their application, the plaintiffs rely on:
(a)affidavits of Adam Forrest Roberts sworn on 21 December 2023, 10 April 2024, 26 April 2024, 17 May 2024 and 18 July 2024;
(b)an affidavit of service of Graeme Robert Coates sworn on 9 July 2024; and
(c)an outline of submissions filed on 26 April 2024.
For the reasons that follow, I find that the procedural requirements have been met, and I am satisfied that it is appropriate to enter judgment in default of appearance and to grant the relief sought.
Procedural requirements for default judgment
The procedural requirements for judgment to be entered in default of appearance are set out in O 13 RSC and were considered by Lundberg J in David Alan Collison as administrator of the estate of Diane Carol Collison v Collison.[4]
[4] David Alan Collison as administrator of the estate of Diane Carol Collison v Collison [2024] WASC 87 [12] - [17], [19] - [21].
Order 13 r 9 RSC applies where, as in this case, a plaintiff's claim is other than for the recovery of a debt, damages, detention of goods or possession of land.
Relevantly, the procedural requirements that must be satisfied for default judgment under O13 r 9 RSC are:
(1)The proceeding must have been commenced by writ of summons.[5]
(2)Service of the writ on the defendant must be verified by affidavit, together with indorsement of service of the writ in accordance with O 9 r 1(4) RSC.
(3)No appearance must have been filed by the defendant within the time prescribed for appearing.[6]
(4)The plaintiff must produce a certificate issued by the proper officer on the day of the hearing stating that no appearance has been entered by the defendant, as required by O 13 r 9(2)(b) RSC.
[5] O 13 r 1(1) RSC.
[6] O 13 r 9(1)(a) RSC.
Once the procedural requirements are satisfied, the court may consider the exercise of its discretion to grant default judgment for the relief sought.
Compliance with procedural requirements under O 13 r 9 RSC
I am satisfied on the evidence filed by the plaintiffs that the relevant procedural requirements have been complied with.
The affidavit of Adam Forrest Roberts sworn on 21 December 2023 (December 2023 Roberts Affidavit) verifies service of the writ indorsed with statement of claim on Uptime on 24 November 2023,[7] and indorsement of service of the writ in accordance with O 9 r 1(4) RSC.[8]
[7] December 2023 Roberts Affidavit [5] - [6], "AFR-2" and "AFR-3".
[8] December 2023 Roberts Affidavit [7], "AFR-4".
Though Mr Hollins was not a party to the proceeding, and he had not been appointed as trustee of the Hollins Uptime Trust at that time, a copy of the writ was sent to him on 24 November 2023.[9]
[9] December 2023 Roberts Affidavit [8], "AFR-5".
The affidavit of Adam Forrest Roberts sworn on 18 July 2024 (July 2024 Roberts Affidavit) verifies service of the amended writ and indorsed statement of claim on Uptime on 4 July 2024,[10] and indorsement of service of the writ.[11]
[10] July 2024 Roberts Affidavit [5] - [6], "AFR-21", "AFR-22'..
[11] July 2024 Roberts Affidavit [7], "AFR-23".
The affidavit of Graeme Robert Coates sworn on 9 July 2024 verifies service of the amended writ indorsed with statement of claim on Mr Hollins, as the second defendant, on 4 July 2024, and indorsement of service of the writ in accordance with O 9 r 1(4) RSC.[12] A copy of the indorsement is attached to the July 2024 Roberts Affidavit.[13]
[12] Affidavit of Graeme Robert Coates sworn on 9 July 2024 [1] - [4].
[13] July 2024 Roberts Affidavit [8], "AFR-24".
Counsel for the plaintiffs tendered certificates signed by the proper officer as required under O 13 r 9(2)(b) RSC certifying that no appearances have been entered by the defendants.[14]
[14] Exhibits 1 and 2.
The procedural requirements having been satisfied, I turn to consider the court's power to grant default judgment for the relief sought.
The relief sought
The plaintiffs seek an order for sale of the Property pursuant to s 126(1) of the Act, and ancillary orders as to the conduct of the sale.
Section 126(1) of the Act provides:
Where in an action for partition the party or parties interested, individually or collectively, to the extent of a half share or upwards in the land to which the action relates request the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly.
Section 126(1) provides an alternative to partition of land. As the words of s 126(1) provide, where a party or parties have a half interest (or more), individually or collectively, in the land to which the action relates, they may seek an order of the court directing a sale of the land.[15]
[15] See Bombara v Bombara [2010] WASC 314 [79] (Allanson J).
As observed by Master Sanderson in Trainor v Trainor,[16] s 126(1) does not embody a broad discretion in the court to grant or refuse an order for sale. What the section anticipates is an order for sale or an order for partition of the property. There is no other alternative available. Unless the court sees good reason to the contrary, it shall direct a sale.[17]
[16] Trainor v Trainor [2021] WASC 40 [4] ‑ [6].
[17] Bombara v Bombara [79], referring to Bray v Bray [1926] HCA 40; (1926) 38 CLR 542, 545 (Knox CJ); Martin-Smith v Woodhead [1990] WAR 62, 69 ‑70 (Kennedy J).
In Agostina Teresa Raphael as executor of the will of Tonino Luciano Randazzo v Randazzo,[18] Seaward J considered the terms of s 126(1) and the definitions of 'land' in s 7 of the Act and under the Transfer of Land Act 1893 (WA). In that case, which concerned an application for an order for sale by an executor, her Honour concluded that those sections in combination are sufficiently broad to include an equitable interest in the land to which an application is made under s 126(1).
[18] Agostina Teresa Raphael as exector of the will of Tonino Luciano Randazzo v Randazzo [2023] WASC 312 [72] - [74].
A copy of the record of certificate of title of the Property is attached to the affidavit of Adam Forrest Roberts sworn on 10 April 2024.[19] It confirms that Uptime is the registered proprietor of the Property.
[19] Affidavit of Adam Forrest Roberts sworn on 10 April 2024 [5], "AFR-8".
I am satisfied on the evidence before me, and accept the plaintiffs' submissions to the effect that, up until 19 July 2016, Uptime held an undivided one third interest in the Property on behalf of each of the Uptime Trusts, and since then and now as bare trustee of those trusts. I also accept that the plaintiffs, collectively, have an equitable interest and greater than a half share in the Property, and have standing to bring this action under s 126(1) of the Act.
Mr Roberts deposes in his affidavit sworn on 26 April 2024, that he is informed by the plaintiffs and believes that there is an office building on the Property and that partition of the Property is not practical.[20] Further, given the Property is a strata lot on a strata plan, I accept partition is not practical. There is no evidence before me to suggest there is any good reason why the Property should be partitioned, and I should not make an order for sale of the Property.
[20] Affidavit of Adam Forrest Roberts sworn on 26 April 2024 [6].
I am satisfied that it is appropriate to make an order pursuant to s 126(1) of the Act directing that the Property be sold.
Conclusion and orders
For these reasons, I am satisfied that it is appropriate to enter default judgment in favour of the plaintiffs against each of the first and second defendants, and to make an order directing the sale of the Property pursuant to s 126(1) of the Act.
Judgment will be entered for the plaintiffs against the defendants in default of appearance pursuant to RSC O 13 r 9(1). An order will be made pursuant to s 126(1) of the Act directing that the Property be sold.
The plaintiffs also seek ancillary orders to give effect to the sale of the Property in the terms set out in the notice of motion for default judgment filed on 18 July 2024, which provide for the plaintiffs to have conduct of the sale, and for a sale of the Property by private treaty or auction, as advised by the real estate agent, to be appointed by them under the standard Real Estate Institute of Western Australia agency agreement.
The orders sought also provide for the net proceeds of sale after repayment of monies due to the registered mortgagee, Westpac Banking Corporation, and payment of costs of sale, tax and duties, to be divided equally between the first plaintiff, the second plaintiff and the second defendant, the trustees of each of the Uptime Trusts.
The plaintiffs also seek an order that the second defendant pay the plaintiffs' costs of the action and of the application for default judgment, on the basis he has an interest in the Property as compared to the first defendant, who is a necessary party to the proceedings, but holds the Property as bare trustee.
I am satisfied that with some modifications, as will be reflected in the final orders, the orders sought in relation to the sale of the Property are appropriate and that an order should be made that the second defendant pay the plaintiffs' costs of the action and the application for default judgment.
Upon the orders being made, they are to be personally served on the defendants together with a notice informing them:
(a)of the judgment entered in default of appearance; and
(b)their right to apply under O 13 r 14 RSC for an order setting aside or varying the judgment and for an order suspending the enforcement of all or any part of the judgment under s 15 of the Civil Judgments Enforcement Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
Associate to Master Russell
25 JULY 2024
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