Genders v Synergia Health Pty Ltd - [2024] WASC 223

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GENDERS -v- SYNERGIA HEALTH PTY LTD [2024] WASC 223
CORAM:   MASTER RUSSELL
HEARD:   13 MARCH 2024
DELIVERED          :   21 JUNE 2024
FILE NO/S:   CIV 1887 of 2023
BETWEEN:   WARREN GILBERT GENDERS
Plaintiff
AND
SYNERGIA HEALTH PTY LTD
Defendant

Catchwords:

Summary judgment - Application for sale of land under s 126(1) of the Property Law Act 1969 (WA) - Sale of land in lieu of partition - Parties agree land should be sold - Which party to have conduct of sale and terms of sale - Turns on own facts

Legislation:

Property Law Act 1969 (WA) s 126(1)
Rules of the Supreme Court 1971 (WA) O 14

Result:

Order for sale of land made pursuant to s 126(1) of the Property Law Act 1969 (WA)

Plaintiff to have conduct of sale

Category: B

Representation:

Counsel:

Plaintiff	:	Mr L Christensen
Defendant	:	Mr R Camm

Solicitors:

Plaintiff	:	CX Law
Defendant	:	Camm & Associates

Cases referred to in decision:

Bombara v Bombara [2010] WASC 314
Elanel Pty Ltd (as trustee for the Marvellous Property Trust) v MJK Properties Pty Ltd (as trustee of the MJK Investment Trust) [2013] WASC 292
Gray v Gray [2023] WASC 70
Manifis v Mouzalidis [2021] WASC 454
Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635
Stevens v Wright [2021] WASC 36
Trainor v Trainor [2021] WASC 40

MASTER RUSSELL:

Overview

The plaintiff, Warren Gilbert Genders, commenced this proceeding by writ of summons filed on 9 August 2023 seeking orders 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:
(a)Lot 6 on strata plan 20948, being all of the land in certificate of title volume 1894 folio 333; and
(b)Lot 7 on strata plan 20948, being all of the land in certificate of title volume 1894 folio 334,
known as units 6 and 7, 265 Eddystone Avenue, Beldon, in the State of Western Australia (together the Properties).
Mr Genders and the defendant, Synergia Health Pty Ltd (Synergia), own the Properties as tenants in common in equal shares. The sole director and shareholder of Synergia is Lee-Anne Heron.
By application filed on 5 September 2023, Mr Genders applied for summary judgment pursuant to O 14 of the Rules of the Supreme Court 1971 (WA) for an order pursuant to s 126 of the Act that the Properties be sold. He also seeks orders that he have conduct of the sale of the Properties on the terms set out in his minute of proposed orders.
The summary judgment application initially came on for hearing on 13 February 2024 (First hearing). Prior to the First hearing, in an outline of submissions filed on behalf of Synergia on 8 February 2024, it was submitted that the application for summary judgment was defective and should be dismissed because Mr Genders had failed to file an affidavit in support of the application as required by O 14 stating his belief that there is no defence to the claim.
That was no longer pressed by Synergia by the time of the First hearing, Mr Genders having sworn and filed a further affidavit on 12 February 2024 to remedy the defect complained of.
At the First hearing, Synergia sought an adjournment to allow it to address issues raised in the affidavits and submissions filed by the plaintiff in the days leading up to the hearing. I allowed the adjournment. The parties each subsequently filed further affidavits and submissions.
By the time of the First hearing and the adjourned hearing on 13 March 2024, the parties had agreed that the Properties should be sold. They have been unable to agree who should have the conduct of the sale. They are also in dispute as to how the sale should be conducted and the form of the orders to give effect to the order for sale and distribution of the proceeds.
For the reasons that follow, I have determined that Mr Genders should have conduct of the sale of the Properties and that the sale be conducted in accordance with the orders set out in the schedule to these reasons.

The evidence and submissions relied on

The parties each filed competing minutes of proposed orders as to the conduct of the sale of the Properties.
Mr Genders relied on:
1.Affidavits sworn by:
(a)him on 22 August 2023 (First Genders Affidavit), 12 February 2024 (Second Genders Affidavit) and 6 March 2024 (Third Genders Affidavit); and
(b)Fei Fei Xue on 8 February 2024 (Xue Affidavit);
2.An outline of submissions and list of authorities filed on 8 February 2024;
3.An outline of submissions in reply and list of authorities filed on 12 February 2024; and
4.A supplementary outline of submissions and list of authorities filed on 6 March 2024.
Synergia relied on:
1.Affidavits of Lee‑Anne Heron sworn on 23 February 2024 (First Heron Affidavit) and 8 March 2024 (Second Heron Affidavit);
2.An outline of submissions and list of authorities filed on 8 February 2024; and
3.Revised submissions filed on 23 February 2024.

Objections to parts of Ms Heron's affidavits

There were objections to parts of the First Heron Affidavit and most of the Second Heron Affidavit. For the reasons stated during the hearing on 13 March 2024, I ruled that certain parts of those affidavits were inadmissible.
I upheld the objections to the following parts of the First Heron Affidavit and they were not read:
(a)all of paragraph 15;
(b)the following words in paragraph 22:
… finally, as a consequence for repeated demands by or on behalf of the defendant for the payment of the outstanding rent.
(c)all of paragraph 23; and
(d)the following words in paragraph 24:
I note that the plaintiff does not state a primary cause of the defendant's defaults with respect to the BOQ Loan was as a consequence of the Plaintiff and BC withholding payments of rent to the Defendant.
The Second Heron Affidavit was filed out of time. Objection was taken to it on that basis and on various other grounds, including relevance, inadmissible hearsay and conclusion. The affidavit refers to a proposed resolution of proceedings in the Family Court of Western Australia between Ms Heron and her former de facto partner, Dr Michael Allen Blair, in which Mr Genders had been invited to consent to orders relating to the sale of the Properties. Mr Genders was not a party to those proceedings, and it is evident he did not consent to the proposed course, or this application would not have proceeded.
When I asked counsel for Synergia for what purpose it sought to rely on the Second Heron Affidavit, it was submitted that this court should be aware of the Family Court's involvement. It was also submitted that Synergia's proposed orders in this proceeding essentially mirror those suggested by the Family Court. The main purpose for which it was sought to rely on the affidavit was to adduce a valuation report prepared by CB O'Reilly dated 14 February 2024 referred to in paragraph 13 of the affidavit and attached to it marked 'LAH4'. The Valuation report states a current market value of the Properties at that date of $955,000.
I ruled that I would receive the affidavit and determined the objections to it. Mr Genders did not object to paragraph 9, which refers to and attaches a letter from the Principal Registrar of the Family Court to Mr Genders attached as 'LAH1', to the extent it was relied upon as evidence the letter was sent but not as to the truth of its contents. The objections to parts of paragraph 11 were not maintained and Mr Genders did not object to paragraph 13, which refers to the valuation report, or to the copy of the valuation report attached as 'LAH4'.
Except for the valuation, which was accepted by Mr Genders for the purpose of fixing a reserve price for the sale of the Properties, the matters deposed to in the Second Heron Affidavit are of little, if any, relevance and of limited assistance to the determination of the remaining matters in issue as to the orders to be made.
I upheld Mr Genders' objections to the whole of paragraphs 7, 8, 10, 14 and 15 of the Second Heron Affidavit, and to parts of paragraph 11.
The orders proposed by Synergia in this proceeding largely follow the orders proposed in the Family Court proceedings. However, there was no agreement by the parties to this proceeding to orders being made in those terms and they do not bind this court's determination of the appropriate orders for the sale of the Properties.

Relevant background

The following facts and the context in which the application is made are derived from the affidavits, as read.
The certificates of title for the Properties attached to the Xue Affidavit[1] record that Mr Genders and Synergia are the registered proprietors of each of the Properties as tenants in common in equal shares. They also record a first registered mortgage to Investec Professional Finance Pty Ltd (Investec), which was registered on 26 August 2014.
[1] Xue Affidavit [4] - [7], FX1 and FX2.
The mortgage secures a facility agreement under which Synergia borrowed $323,333 from Investec in August 2014 to assist the acquisition of its interest in the Properties (Investec Loan). The term of the Investec Loan was 60 months with interest payable monthly in arrears and the principal amount of $323,333 repayable on expiry of the term.[2]
[2] First Genders Affidavit [7] - [8(a)], WG4; First Heron Affidavit [7] - [8].
Mr Genders as trustee for the Genders Family Trust, together with Ms Heron and Dr Blair, entered into guarantees in relation to the Investec Loan.[3]
[3] First Genders Affidavit [7] - [8(b)], WG5; First Heron Affidavit [7] - [8].
On or around 27 September 2019, Synergia refinanced the Investec Loan with the Bank of Queensland for the same amount (BOQ Loan).[4] The term of the BOQ Loan expired on 27 September 2020. Ms Heron contacted Mr Genders and Dr Blair before the loan expired asking them if they would agree to extending the loan and guarantee for a further 12 months. Mr Genders responded that he was unable to assist with any further extension of the BOQ loan.[5]
[4] First Genders Affidavit [9] - [10], WG6; First Heron Affidavit [8].
[5] Third Genders Affidavit [5] - [8], WG11 - WG14.
It is apparent that, by this time, Ms Heron and Dr Blair were estranged. It is common ground that they have been involved in separate, long‑running proceedings in the Family Court.
The mortgage registered against the title to the Properties continues to secure the BOQ Loan.
As at 1 October 2023, the amount outstanding on the BOQ Loan was $323,636.93.[6]
[6] First Heron Affidavit [12], LAH1.
On or about 24 May 2023, a default notice was issued by the Bank of Queensland to Synergia as the borrower and to Mr Genders as guarantor demanding repayment of $446,571.95.[7]
[7] First Genders Affidavit [11], WG7.
Ms Heron deposes that, as at 10 July 2023, Synergia was owed $122,100 in rent by Belridge Chiropractic Pty Ltd (Belridge), a company controlled by Mr Genders and Dr Blair. Ms Heron says that, despite demand by Synergia to Belridge, no payments of rent were received by Synergia for the period from October 2020 to July 2023 inclusive.[8] Synergia contends, in effect, that the withholding of rent by Belridge contributed to Synergia being in default of the BOQ Loan.[9]
[8] First Heron Affidavit [14], [16], [17], LAH3.
[9] 13 March 2024 transcript pages 35 - 36; First Heron Affidavit [16].
This is disputed by Mr Genders. He acknowledges that he caused Belridge to stop making payments to Synergia in respect of rent. He was personally liable as a guarantor to repay the outstanding BOQ Loan. He says he wanted to ensure that rental payments were paid to the Bank of Queensland to reduce the amount outstanding.[10]
[10] Third Genders Affidavit [8] - [9].
Correspondence and emails were exchanged between solicitors acting for Mr Genders and Synergia, and between Mr Genders, Dr Blair and Ms Heron.[11] Ultimately, on 28, 30 and 31 July 2023, Mr Genders caused payments totalling $121,700 to be made by Belridge in relation to rent payable to Synergia directly to the Bank of Queensland in reduction of the amount outstanding under the BOQ Loan.[12] Mr Genders deposes that, since 2 August 2023, he has caused Belridge to continue to pay rent payable to Synergia directly to the Bank of Queensland.[13] This has not been refuted.
[11] First Heron Affidavit [18] - [19]; Third Genders Affidavit [10] - [11], WG15 - WG24.
[12] First heron Affidavit [22]; Third Genders Affidavit [12], WG25.
[13] Third Genders Affidavit [13].
Mr Genders issued these proceedings seeking an order for sale of the Properties under s 126(1) of the Act on 9 August 2023.

Applicable principles

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.
The purpose of s 126(1) (and of the legislation which preceded it) is to provide a remedy for a joint tenant or tenant in common who, in the event of a dispute with another co‑tenant, may otherwise be without an adequate remedy to protect his share or interest in the land.[14]
[14] Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635, 650 (Brennan J), 656 ‑ 657 (Deane, Dawson & Gaudron JJ).
As observed by Master Sanderson in Trainor v Trainor,[15] s 126(1) of the Act 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.
[15] Trainor v Trainor [2021] WASC 40 [4] ‑ [6].
In this case, the parties agree that the appropriate order is an order for sale. It is the orders that flow from that as to how the sale is to be conducted, who is to have conduct of the sale and distribution of the proceeds that are in dispute.
I accept the submissions made on behalf of Mr Genders to the effect that there is no reason why there ought to be a trial to determine those matters.
As stated by Allanson J in Bombara v Bombara,[16] the court has a complete discretion as to who it will appoint to conduct a sale ordered under s 126(1) of the Act:
80.The court has a complete discretion as to who it will appoint to conduct a sale: Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151 [88]. As a matter of practice, ordinarily the conduct of the sale is given to the plaintiff: Crocombe v Pine Forests of Australia Pty Ltd [88] citing Dixon v Pyner (1850) 68 ER 135; Dale v Hamilton (1853) 68 ER 1116 and Murray v Geoffroy (1918) 18 SR (NSW) 259.
81.In exercising such a discretion, the court must have regard to matters which are consistent with the objects of the Act. …
[16] Bombara v Bombara [2010] WASC 314 (Bombara v Bombara) [80] ‑ [81].
As noted in Bombara v Bombara, although as a matter of practice the conduct of the sale is given to the plaintiff, that will not always be the case.[17] As observed by Strk J in Gray v Gray,[18] in exercising its discretion the court is expected to have regard to a broad range of factors and good reasons might be shown to displace the ordinary course.[19]
[17] See also Manifis v Mouzalidis [2021] WASC 454 (Manifis) [3] (Sanderson M).
[18] Gray v Gray [2023] WASC 70 [37].
[19] Referring to Bombara v Bombara [79] ‑ [81]; Elanel Pty Ltd (as trustee for the Marvellous Property Trust) v MJK Properties Pty Ltd (as trustee of the MJK Investment Trust) [2013] WASC 292 [12] (McKechnie J); Stevens v Wright [2021] WASC 36 [66] (Strk AM).

The parties' respective positions

In the circumstances of this case, there is no opposition to an order for sale being made and no substantive issue to be tried. There is no contested valuation evidence. The parties are agreed on a reserve price for the Properties. As already stated, the only matters in dispute relate to who should have conduct of the sale and other orders to give effect to the order for sale.
Mr Genders says he should have conduct of the sale. Synergia says the parties should both be involved in and be responsible for the sale of the Properties, or alternatively an independent agent should be appointed to conduct the sale.
In essence, Mr Genders submits that the starting point is that as the plaintiff, the party instituting the proceedings, he should have conduct of the sale and it is for Synergia to show that there are good reasons to the contrary. It is submitted on his behalf that Synergia has failed to do so.
Synergia has not adduced evidence to demonstrate that the parties could work together to jointly conduct the sale. Synergia submitted, in effect, that there is no compelling reason as to why both parties cannot be involved in the sale of the Properties, and that Mr Genders has not adduced evidence to support Synergia being excluded.
Synergia points to conduct of Mr Genders, which it says ought to disqualify him from having sole control of the sale of the Properties. It was submitted on behalf of Synergia, in effect, that Mr Genders should not have conduct of the sale for two reasons.
The first reason is Ms Heron's concern that Mr Genders may seek to acquire Synergia's interest in the properties at an undervalue. Synergia relies on an exchange of emails between Ms Heron and Mr Genders in early September 2020 in which Mr Genders offered to purchase Synergia's interest in the Properties for $325,000.[20] Ms Heron deposes that this was significantly less than a valuation she obtained subsequently on 25 September 2020.[21]
[20] First Heron Affidavit [25] - [26], LAH7.
[21] First Heron Affidavit [27], LAH8.
The second reason relates to Synergia's contention that Mr Genders, on behalf of Belridge, withheld rent payable to Synergia between October 2020 and July 2023, which Ms Heron says caused or contributed to Synergia being unable to meet the BOQ Loan repayments and resulted in further interest and fees being incurred.[22]
[22] First Heron Affidavit [9], [14], [17] - [20], LAH3 - LAH6.
Mr Genders disputes both of those contentions. As to the first reason, he deposes that he made the offer to purchase Synergia's interest in the Properties in September 2020 to prevent the BOQ Loan going into default. He has no intention to acquire the Properties. He plans to retire and does not wish to take on further liabilities. He has instructed his solicitors not to seek an order allowing him to offer or bid for the Properties.[23]
[23] Third Genders Affidavit [14] - [15].
As to the second reason, he disputes he is responsible for what has been referred to as the default of the BOQ Loan. He says, in effect, that the term of the loan facility expired on 27 September 2020, at which time Synergia was required to repay the amount owing in full. He remained liable as a guarantor and sought to cause payments for rent by Belridge to be paid directly against the balance outstanding on the expired loan. There was disagreement about this between Ms Heron on behalf of Synergia and Mr Genders on behalf of Belridge. The outstanding rent was ultimately paid by Belridge directly against the BOQ Loan account in July 2023, and has continued to be paid on that basis since.[24]
[24] Third Genders Affidavit [4] - [13], WG11 - WG25.

Appropriate orders as to the conduct of the sale of the Properties

Turning then to the orders to give effect to the order for sale and who should have conduct of the sale.
The Properties are strata units used for the purpose of healthcare related rooms. It is common ground that no particular expertise is required to manage or negotiate the sale of the Properties.

As has often been observed in similar applications coming before the court, if it is necessary to have the court determine the form of orders to facilitate the sale, it is clear the parties are in dispute and there will likely be lack of cooperation, disagreement, and further dispute between the parties after the sale order is made.[25] For that reason, it is generally the case, though not always, that one of the parties in such circumstances will have conduct of the sale.
[25] See for example, Manifis [3].
Synergia submitted that if the court was not satisfied it was appropriate for the parties to have joint conduct of the sale, an independent agent should be appointed to conduct the sale.
I allowed Synergia's application for an adjournment of the First hearing, and to file further evidence. This included to address Mr Genders' contentions to the effect that it was not appropriate for the parties to be jointly responsible for the sale of the Properties because they cannot work together.
No positive evidence has been adduced by Synergia to demonstrate that the parties can work together, or to give me any confidence that such would be an appropriate way forward. Nor has any evidence been adduced as to the identity of any independent agent or the terms and costs associated with such an appointment. There is no material before the court to evaluate the viability of this as an option.
It is clear from the evidence adduced by the parties that the relationship between them has broken down and I have concluded there is no prospect of them reaching agreement on the disputed matters.
I am satisfied on the material before me that it would not be appropriate for the parties to have joint conduct of the sale, as proposed by Synergia. I have no confidence that the parties are capable of cooperating with each other. It was submitted on behalf of Synergia that, if the sale was conducted jointly once the parties had agreed upon and jointly appointed a real estate agent, the interactions between them would not need to be extensive as the agent would do most of the work. However, as acknowledged by Synergia's counsel, the parties would still be required to make critical decisions jointly.
If I were to make orders in the terms proposed by Synergia, which have the effect of making the sale conditional upon both parties agreeing to matters critical to effecting a sale of the Properties, such would likely result in further dispute between them. The sale of the Properties will inevitably be further delayed, and further costs will most likely be incurred.
In the circumstances, the appropriate course is for one of the parties to have conduct of the sale of the Properties.
Mr Genders is the party who initiated the application and who has sought the order for sale. Synergia has effectively conceded the application and agreed to the sale of the Properties. Synergia has not proposed that it should have sole conduct of the sale. Rather, it says that Mr Genders should not be the one responsible for the sale because of his conduct, as outlined.
I am not satisfied on the evidence that Mr Genders' conduct is such as to disqualify him from having conduct of the sale of the Properties, or that there is a good reason why he, as the party who has brought the proceeding, should not have conduct of the sale.
I do not accept the submissions made on behalf of Synergia to the effect that Mr Genders' offer to purchase Synergia's interest for $325,000 in December 2020, more than three years ago, should disentitle or disqualify him from having conduct of the sale. Mr Genders has made it clear that he does not wish to acquire the Properties. He plans to retire and does not want to take on further liabilities. He has instructed his solicitors not to seek an order allowing him to offer or bid for the Properties. An order could be made that he does not do so, at least for a period of time, to alleviate any concerns in this regard.
I accept the submissions made on behalf of Mr Genders to the effect that he was not responsible for the default of the BOQ Loan. It is clear from the terms of the facility that the term expired on 27 September 2020, and that repayment in full was required by Synergia on expiry of the term. The BOQ Loan has not been repaid and continues to be secured by a mortgage over the Properties. Mr Genders remains liable as a guarantor. Although there was a significant period in which rent was not paid by Belridge to Synergia, the rent has been paid directly to the Bank of Queensland towards repayment of the outstanding liability under the BOQ Loan and guarantee.
In my view, there is no good reason why Mr Genders should not have the conduct of the sale of the Properties, particularly where I have no confidence the parties can work together to effect a sale, and there is no evidence from which I can evaluate the alternative proposed by Synergia.
It will be incumbent on Mr Genders, as it would be on any party having conduct of the sale of a property on behalf of joint tenants, to act in good faith and in the interests of both parties in the conduct of the sale.
The orders made will require him to give notice to Synergia of matters relevant to the sale, and it will have a right to apply to the court. As such, Synergia will be kept informed of pertinent matters concerning the sale of the Properties, and have the right to apply and challenge any decision which it may consider inappropriate or improper.
There are a number of proposed orders that reflect common ground between the parties. The orders for sale will be largely based on those proposed by Mr Genders with some modifications and omissions, which I will outline. I only address the orders in respect of which there is a significant difference between the parties, or any of significance that are not dealt with in Synergia's proposed orders.
Mr Genders' proposed order 1 provides for the Properties to be sold free from encumbrances unless the purchaser consents to the sale being subject to any encumbrances, and either with periodic leases in place or with vacant possession, as agreed with the purchaser. The valuation report dated 14 February 2024 upon which the agreed reserve price of $955,000 is based, is stated to have assumed an unencumbered freehold title and with vacant possession due to the premises being leased to a related party. The related party is Belridge, of which Mr Genders is a director.
The proposed orders also provide that, in the conduct of the sale, Mr Genders have power on behalf of the parties to terminate the existing tenancy at will for the Properties if the purchaser requires vacant possession at settlement, and to take such action as necessary to protect the parties' interests with respect to the tenant's vacation of the Properties.
Mr Genders wants the Properties sold. It is in his interests and his control to ensure vacant possession is achieved, if required. He must also act in the best interests of Synergia in conducting the sale and exercising any associated powers. Further, if any issue arises, there is liberty to apply. As such, I am satisfied it is appropriate to make orders in those terms.
Mr Genders' proposed orders provide that he will appoint a real estate agent for the sale of the Properties by selecting an agent from three agents nominated in writing by Synergia within three days of the date of the orders made. Counsel for Mr Genders indicated that he did not take issue with this period being extended to seven days, which is the period Synergia had proposed for the joint appointment of an agent. With that change, there is little difference between this and Synergia's proposal, except for the agent to be selected being appointed jointly.
If Synergia does not submit the names and contact details of three real estate agents within that time, Mr Genders' proposed orders provide that he will then appoint an agent of his choice. As such, Synergia is able to select the real estate agent and it is only if it fails to do so in accordance with the order that Mr Genders selects the agent. In my view, this favours Synergia and is entirely reasonable.
The parties are also in general agreement that the sale may be effected by private treaty or public auction.
It is proposed by Mr Genders that he determine the method of sale to be adopted that will secure the best sale price, taking into account the agent's advice. This is subject to him notifying Synergia of his decision on the chosen method of sale, any decision to change the method of sale and the reasons for the decision. The orders as proposed provide that Mr Genders may adopt any of a number of what would be considered usual methods of sale, which in his (Mr Genders') opinion will secure the best price.
As observed by Master Sanderson in Manifis,[26] the orders made under s 126 of the Act are for the sale of property. They are not orders for sale at the best possible price. While price is of course a relevant factor and must be reasonable, it is not the only relevant consideration.
[26] Manifis [8].
The method of sale should, in my view, be more appropriately determined by taking into account the agent's advice and recommendations, acting reasonably, as to which method or methods of sale are likely to result in the best outcome in terms of price, and achieving a completed sale as expeditiously as possible.
The orders proposed by Mr Genders provide for 50% of the net proceeds of sale after deduction of sale costs, charges and expenses to be distributed to each of the parties. They also provide for any monies payable under the BOQ Loan to be deducted from Synergia's share of the net proceeds in order to discharge the registered mortgage in favour of the Bank of Queensland. No issue is taken with that.
There is also a provision proposed that if there are insufficient funds to fully repay the BOQ Loan from Synergia's share of the net proceeds, any remaining amount be deducted from the plaintiff's share with such amount being stated to be a debt owed by Synergia to Mr Genders. That is not agreed and I am not inclined to make an order in those terms.
It is not yet known what sale price will be achieved. Nor is there any current evidence as to the amount required to discharge the mortgage. There is evidence that, as at 18 August 2023, the balance outstanding on the BOQ loan account was $321,985.[27] In addition, since August 2023 until at least 6 March 2023, payments of rent at the rate of $3,700 per month have been made by Belridge directly against the BOQ Loan.[28] As such, given the valuation of the Properties as at 14 February 2024 of $955,000, it seems unlikely there will be a shortfall, even accounting for interest and charges.
[27] First Heron Affidavit LAH1.
[28] Third Genders Affidavit [13], WG19, WG24.
Once the parties are aware of the net proceeds, and if any issue arises as to a shortfall or otherwise, it may well be that they are able to agree how the proceeds are to be distributed or how any shortfall is to be dealt with. In which case they can apply to vary the orders to reflect their agreement. If they are unable to agree, either or both of them have liberty to apply.
Synergia proposed an order that Mr Genders not be permitted to make an offer or bid for the Properties within the first 60 days, unless the parties otherwise agree in writing. Mr Genders has stated he has no intention of purchasing the Properties. However, as noted earlier in these reasons, an order to that effect will give Synergia some comfort. An order will be included to that effect.
Given these reasons refer to the reserve price for the sale of the Properties, pending the sale being completed or until further order, it is appropriate that access to them be restricted to the parties, their legal representatives, judicial officers and court staff who require access in the course of their employment. Further publication of these reasons will be suppressed until further order of the court. An order has been made to that effect.

Conclusion and orders

For these reasons, subject to hearing from the parties as to the final form of the orders, I will make orders as set out in the attached schedule. There are some matters stated in square brackets for the parties' consideration and submissions, including if required, to address any matters arising since the hearing of the application.
I will hear from the parties as to the final form of the orders and in relation to the costs of the proceeding and the application, including those reserved at the First hearing.

SCHEDULE

ORDERS – SUBJECT TO HEARING FROM THE PARTIES

1.Summary judgment be entered for the plaintiff against the defendant pursuant to Order 14 rule 1 of the Rules of the Supreme Court 1971 (WA).
2.Pursuant to section 126(1) of the Property Law Act 1969 (WA), the following land owned by the plaintiff and the defendant as tenants in common in equal shares:
(a)Lot 6 on strata plan 20948, being all of the land in certificate of title volume 1894 folio 333; and
(b)Lot 7 on strata plan 20948, being all of the land in certificate of title volume 1894 folio 334,

known as unit 6 and unit 7, 265 Eddystone Avenue, Beldon, in the State of Western Australia (together the Properties), be sold.
3.The sale of the Properties:
(a)unless otherwise agreed with the purchaser, will be free from encumbrances and with vacant possession; and
(b)subject to the current joint form of general conditions of sale of land published by the Law Society of Western Australia and the Real Estate Institute of Western Australia, unless otherwise ordered by the Court on application by any party.

4.The plaintiff is to have the conduct of the sale of the Properties and must:
(a)act in the best interests of both parties;
(b)within [21] days of the date of these orders, appoint an agent for the sale of the properties (Agent) to be selected by the plaintiff, as follows:
(i)within [7] business days of the date of these orders, the defendant is to nominate an agent by submitting to the plaintiff in writing the names and contact details of three (3) real estate agents;
(ii)within [7] days of receiving such nomination, the plaintiff is to select and appoint one of the agents nominated by the plaintiff in accordance with order 4(b)(i) as the Agent; and
(iii)if the defendant fails to nominate an agent in accordance with order 4(b)(i), the plaintiff is to select and appoint a real estate agent of his choice as the Agent.

(c)instruct the Agent to sell the Properties at a list or reserve price [of no less than] $955,000 [ex GST] (Reserve Price) for a minimum period of two (2) months from the date the Agent is appointed (Minimum Period).
(d)take into account the advice and recommendations of the Agent, acting reasonably, as to which method or methods of sale are likely to result in the best outcome in terms of price and achieving a completed sale as expeditiously as possible, but may otherwise adopt any method of sale including, but not limited to, sale by private treaty, sale by public auction, or sale by calling for offers by expression of interest;
(e)notify the defendant of the chosen method of sale or any decision to change the method of sale and the reasons for the decision in each case;
(f)instruct the Agent to provide to the defendant (at the same time as providing to the plaintiff) a copy of:
(i)any engagement agreement signed by the plaintiff for the sale of the Properties;
(ii)any offer received for the Properties;
(iii)any signed contract of sale in respect of the Properties; and
(iv)a summary of all remuneration, costs, charges and expenses of sale the Agent has charged the plaintiff in respect to the sale of the Properties (Agent's Costs Summary).

(g)Other than a sale by public auction, give the defendant three (3) days' notice of his intention to accept any offer.

5.In the conduct of the sale, the plaintiff also has the following powers on behalf of the plaintiff and the defendant (together the Owners):
(a)the power to:
(i)terminate the existing tenancy at will for the Properties, if the purchaser requires vacant possession of the Properties at settlement; and
(ii)to take such action as is reasonable and necessary to protect the Owners' interests with respect to the tenant's vacation of the Properties.

(b)subject to complying with order 4(g) above:
(i)the plaintiff may accept any offer above the Reserve Price;
(ii)the plaintiff may accept any offer below the Reserve Price:
A.if during the Minimum Period, only if the defendant consents in writing;
B.if after the Minimum Period, the plaintiff may accept that offer if the Agent recommends accepting that offer in writing;

(c)on any sale of the Properties made pursuant to the terms of these orders, the plaintiff has the power to sign for and on behalf of the Owners as the registered proprietors of the Properties any notices of appointment of agent or auctioneers, any transfers, or other documents necessary to give effect to the sale of the Properties in accordance with these orders;
(d)the power to fix any appointed real estate agent's remuneration; and
(e)the power to fix any appointed auctioneer's remuneration.

6.Unless the parties otherwise agree in writing, the plaintiff shall not be permitted to make an offer or bid for the Properties during the Minimum Period.
7.For the settlement of any sale of the Properties pursuant to these orders, the plaintiff:
(a)must appoint an independent settlement agent on behalf of the Owners; and
(b)instruct the settlement agent to provide to the defendant (at the same time as providing to the plaintiff) a settlement statement in respect of the settlement of the sale of the Properties (the Settlement Statement).

8.The plaintiff be entitled to deduct from the proceeds of sale all costs, charges and expenses of sale (including but not limited to any statutory outgoings, advertising costs, Agent's costs, auctioneers' costs, valuation costs (if required) and the settlement agent's costs) (the Net Proceeds of Sale). If any deductions made pursuant to these orders do not appear on the Agent's Costs Summary or the Settlement Statement, the plaintiff must provide to the defendant within three (3) days of making the deduction, an invoice/receipt in relation to that deduction.
9.The Net Proceeds of Sale are to be distributed to the parties in the following proportions:
(a)the plaintiff - 50%;
(b)the defendant - 50%.

10.The full amount required to discharge the defendant's liability to the Bank of Queensland in relation to loan account number N6ACCI6028 and mortgage M747999 in favour of Investec Professional Finance Pty Ltd registered on the title to the Properties on 26 August 2014, shall be deducted and paid from the defendant's share of the Net Proceeds of Sale.
11.Where notice is required to be given or documents provided to a party under these orders, it is to be given in writing and served on the required party by email as follows:
(a)to the plaintiff by email to:
[]

(b)to the defendant by email to:
[]

12.The parties have liberty to apply generally on 48 hours' notice.
13.Access to the reasons for decision and these orders be restricted to the parties, their legal representatives, judicial officers and court staff who require access in the course of their employment. Further publication of these reasons is suppressed until further order of the court.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
Associate to Master Russell

21 JUNE 2024