SUPREME COURT OF NORFOLK ISLAND
Foote v Foote [2014] NFSC 2
Citation: Foote v Foote [2014] NFSC 2 Parties: ANNE STEWART FOOTE, MARCUS TRUMAN and BRIGITTE TRUMAN v DOUGLAS ALEXANDER FOOTE, TRUDY MARIE DAVID, DEAN NORMAN FOOTE, LAURIE LOUISE EVANS, ROBERT PATRICK FOOTE and DEBORAH LEIGH ENTWISTLE File number: SC 2 of 2014 Judge: JACOBSON CJ Date of judgment: 11 December 2014 Catchwords: REAL PROPERTY – Application for partition of property held by tenants-in-common in unequal shares – Effect of a will – Whether will provided for a trust for sale or a power of sale Legislation: Administration and Probate Act 2006 (Norfolk Island)
Conveyancing Act 1919 (NSW)
Partition Ordinance 1931
Probate and Administration Act 1898 (NSW)Date of hearing: 10 December 2014
Date of last submissions: 10 December 2014
Place: Sydney, via videolink from Norfolk Island
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 33
Counsel for the Plaintiffs: Mr DR Wright (solicitor)
Solicitor for the Plaintiffs: Willis & Bowring
Counsel for the Defendants: Mr A Cook QC
SUPREME COURT
OF NORFOLK ISLAND
SC 2 of 2014
BETWEEN: ANNE STEWART FOOTE
First PlaintiffMARCUS TRUMAN
Second PlaintiffBRIGITTE TRUMAN
Third PlaintiffAND: DOUGLAS ALEXANDER FOOTE
First DefendantTRUDY MARIE DAVID
Second DefendantDEAN NORMAN FOOTE
Third DefendantLAURIE LOUISE EVANS
Fourth DefendantROBERT PATRICK FOOTE
Fifth DefendantDEBORAH LEIGH ENTWISTLE
Sixth Defendant
JUDGE:
JACOBSON CJ
DATE OF ORDER:
11 DECEMBER 2014
WHERE MADE:
SYDNEY VIA VIDEOLINK TO NORFOLK ISLAND
THE COURT ORDERS THAT:
1.
The Court notes that the second to sixth defendants have each filed submitting appearances.
2.Pursuant to section 4(1)(b) of the Partition Act 1900 of the State of New South Wales (‘Adopted Act’) in its application to Norfolk Island, under the Partition Act (formerly the Partition Ordinance 1931) of Norfolk Island, order that the property known as ‘Foot Nort’ located at 7 Rocky Point Road, Norfolk Island (being Lot 32, section 19, portion 95f, sheet 51, with an area of 3.874 hectares more or less) (‘The Property’) be directed by the Court to be sold in accordance with section 41B of the adopted Act and, conformably, with the orders and directions set out below.
2A The Court notes that the property includes improvements, fixtures and fittings constructed or erected upon it, but does not include the furniture, effects or other moveable property belonging to the Plaintiff.
3.
Pursuant to sections 4(3) and 15(c) of the Adopted Act, an order that the sale of the property be effected out of Court subject to the restrictions and consequential directions set out in the following orders:
4.
A direction that the sale be effected by Brian James of Norfolk Island Real Estate Pty. Limited (‘Agent’).
5.
A direction that the agent in the first instance seek to sell the Property by invitation to tender, and that for that purpose there be a reserve price of $2,200,000.00 (‘reserve price’). For the purposes of this Direction, the Agent shall require each tenderer to submit their tender in a sealed envelope by…
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CaseChat Overview and Summary
The court considered the language of the will and relevant precedents in determining that the will established a trust for sale rather than a power of sale. This interpretation was based on the explicit terms of the will and the principles of equity, which favour the creation of trusts over discretionary powers. Consequently, the court ruled that the property should be sold under the supervision of a court-appointed agent, adhering to the provisions of the Partition Act 1900 as adopted for Norfolk Island. The court directed that the sale should proceed through several stages, including an initial tender process, a public auction if necessary, and a private treaty if the reserve price was not met at auction. The court also outlined provisions for the distribution of sale proceeds and costs among the parties.
Following the court's reasoning, the judge issued several orders to facilitate the sale of the property. The orders included the appointment of a real estate agent to conduct the sale, set a reserve price, and specify the conditions under which the sale would occur. Additionally, the court mandated that any party in control of the property must allow inspections and vacate upon sale completion. The proceeds from the sale, after deducting the agent's commission and any outstanding charges, were to be distributed among the parties according to their respective interests. The court further provided for the payment of costs from the sale proceeds and allowed for supplementary orders if needed. Finally, the court set a deadline for reaching an agreement on a new agent if the original agent failed to enter into a sale contract within 120 days.
Orders
Orders of the court
1.
The Court notes that the second to sixth defendants have each filed submitting appearances.
2. Pursuant to section 4(1)(b) of the Partition Act 1900 of the State of New South Wales (‘Adopted Act’) in its application to Norfolk Island, under the Partition Act (formerly the Partition Ordinance 1931) of Norfolk Island, order that the property known as ‘Foot Nort’ located at 7 Rocky Point Road, Norfolk Island (being Lot 32, section 19, portion 95f, sheet 51, with an area of 3.874 hectares more or less) (‘The Property’) be directed by the Court to be sold in accordance with section 41B of the adopted Act and, conformably, with the orders and directions set out below.
2A The Court notes that the property includes improvements, fixtures and fittings constructed or erected upon it, but does not include the furniture, effects or other moveable property belonging to the Plaintiff.
3.
Pursuant to sections 4(3) and 15(c) of the Adopted Act, an order that the sale of the property be effected out of Court subject to the restrictions and consequential directions set out in the following orders:
4.
A direction that the sale be effected by Brian James of Norfolk Island Real Estate Pty. Limited (‘Agent’).
5.
A direction that the agent in the first instance seek to sell the Property by invitation to tender, and that for that purpose there be a reserve price of $2,200,000.00 (‘reserve price’). For the purposes of this Direction, the Agent shall require each tenderer to submit their tender in a sealed envelope by a stipulated time, being not later than 30 days after the date of these Orders, and each party to these proceedings shall be at liberty to attend on the Agent at the time the tenders are opened and to inspect the same.
6.
A direction that, if no person purchases the Property by tender at a figure not less than the said reserve price, then the Agent sell the Property by public auction to be held not later than 60 days after the date of these Orders, and for that purpose the reserve price be the same as stated in Order 5.
7.
A direction that, if no person purchases the Property at public auction at a figure not less than the said reserve price, then the
Agent seek to sell the property on or before the date that is 120 days after the date of these Orders, by private treaty at the best price available.
8.
An order that any of the parties interested in the Property be at liberty to purchase the Property in any sale of it pursuant to Orders 5, 6 or 7.
9.
An Order that the Agent be authorised to execute all contracts, deeds, documents or paper writings, on behalf of the parties in their capacity as proprietors of the Property, that are necessary or desirable to effect and/or complete the sale of the Property in accordance with these Orders.
10.
An Order that the terms and conditions of sale (including but not limited to the provisions of the contract for sale) be as determined by the Agent.
11.
The Court Orders that, if a party is resident in or has control over the Property prior to completion of the sale of the Property, that party shall:
(a)
Give access to the Property to the Agent and any prospective purchasers introduced by the Agent on reasonable notice for the purposes of inspecting the Property, and for the purposes of this Order but without limitation 24 hours notice (written or oral) shall be taken to be reasonable, and
(b) Vacate the Property upon completion, or if the contract for sale provides for possession to be given to the purchaser at a time before completion, at that time.
12.
An Order that, after completion of the sale, the Agent be at liberty to deduct from the proceeds of such sale:
(a)
Subject to order 13, the commission and other expenses of the Agent in and about the sale; and
(b)
Any unpaid rates, levies or charges levied on or in respect of the Property; and that the balance remaining be paid by the Agent into Court (‘the Fund’).
13.
The Court Orders that the commission payable to the Agent in the event of a sale be paid to the Agent by the first Plaintiff, to the intent that the first Plaintiff shall bear that cost without recourse to the Fund.
14.
An Order that the Plaintiffs’ costs of this proceedings, as agreed or assessed on a solicitor and client basis in accordance with Ruler 1752(1)(a) of the Court Procedures Rules, be paid out of the Fund.
15. An Order that the balance remaining of the Fund be distributed to the parties rateably according to their respective proportionate interests in the Property.
16.
Subject to Order 14, an Order that there be no order as to the costs of the proceedings as between the parties.
17.
The Court Orders that there be liberty to apply on 5 days’ notice for the purpose of making any supplementary or consequential orders or directions that may become necessary.
18.
The Court orders that, in the event that a contract for the sale of the Property has not been entered into with 120 days after the date on which these Orders are made:
(a)
Orders and Directions, 4,5,6,7,9,10,11,12 and 13 shall cease to have effect so far as they relate to the Agent Brian James; and
(b)
The Plaintiffs and the First Defendant shall use their best endeavours to agree upon the identity of another real estate agent who is prepared to assume the functions conferred or imposed by these Orders and Directions on ‘the Agent’, with a view to filing consent orders to give effect to that agreement; and
(c) In the event that such consent orders are not filed within one month after the expiration of that 120 day period, the parties or any of them have leave to apply in accordance with Order 17 for the purpose of seeking that the Court appoint a replacement agent.
SUPREME COURT
OF NORFOLK ISLAND
SC 2 of 2014
BETWEEN:
ANNE STEWART FOOTE
First Plaintiff
MARCUS TRUMAN
Second Plaintiff
BRIGITTE TRUMAN
Third Plaintiff
AND:
DOUGLAS ALEXANDER FOOTE
First Defendant
TRUDY MARIE DAVID
Second Defendant
DEAN NORMAN FOOTE
Third Defendant
LAURIE LOUISE EVANS
Fourth Defendant
ROBERT PATRICK FOOTE
Fifth Defendant
DEBORAH LEIGH ENTWISTLE
Sixth Defendant
JUDGE:
JACOBSON CJ
DATE:
11 DECEMBER 2014
PLACE:
SYDNEY VIA VIDEOLINK TO NORFOLK ISLAND
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
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