Gray v Gray
[2023] WASC 70
•10 MARCH 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GRAY -v- GRAY [2023] WASC 70
CORAM: STRK J
HEARD: 31 MARCH, 9 - 10 AUGUST & 2 SEPTEMBER 2021
DELIVERED : 10 MARCH 2023
FILE NO/S: CIV 1932 of 2020
BETWEEN: ROBERT BRIAN GRAY
First Plaintiff
ASHLEY ROBERT GRAY
Second Plaintiff
AND
MURRAY EDWARD GRAY
Defendant
Catchwords:
Real property - Sale by auction pursuant to s 126 of the Property Law Act 1969 (WA) - Which party to have conduct of sale - Setting of appropriate reserve price for auction - Turns on own facts
Legislation:
Property Law Act 1969 (WA) s 126
Result:
Orders made for sale by auction
Category: B
Representation:
Counsel:
| First Plaintiff | : | P R MacMillan |
| Second Plaintiff | : | P R MacMillan |
| Defendant | : | S M Standing |
Solicitors:
| First Plaintiff | : | Corinne Griffin & Co |
| Second Plaintiff | : | Corinne Griffin & Co |
| Defendant | : | Lynn & Brown Lawyers |
Case(s) referred to in decision(s):
Bombara v Bombara [2010] WASC 314
Duffy v The Minister for Planning [2003] WASCA 294
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
Essex Securities Pty Ltd v Lunt [2006] WASC 58
Gray v Gray [2010] WASC 389
Gray v Gray [2013] WASC 387
Hoskin v The Sherriff for the State of Victoria [2018] VSC 216
Hutton v Meston [2004] WASCA 178
Kelliher v Commissioner for Main Roads [No 2] [2015] WASC 478
Manifis v Mouzalidis [2021] WASC 454
Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Sangora Holdings Pty Ltd v Dunstan (Unreported, WASC, Library No 990172, 13 April 1999)
Stevens v Wright [2021] WASC 36
Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212
Woolley v Colman (1882) 21 ChD 169
Table of Contents
Introduction
Procedural history
Pleadings prior to trial
Commencement of trial on 31 March 2021
Further directions
Continuation of trial on 9, 10 August 2021 and 2 September 2021
The cases advanced
The pleadings & concessions
Applicable principles
Conduct of the sale
Reserve price
The evidence
The Bullsbrook property - overview
Lay affidavit evidence
Valuation evidence
Evidence of Mr Hemsley
Evidence of Mr Cooper
Disposition
Conduct of the sale
Reserve price
Other ancillary orders
Conclusion and orders
Sch A - proposed orders
STRK J
Introduction
The parties to this proceeding share the same surname. In these reasons, I refer to the parties by their first name. I do so for convenience and to avoid confusion. No disrespect is intended.
Robert, Ashley and Murray are the registered proprietors as tenants in common in equal shares of a property known as 848 Cooper Road, Bullsbrook (being the whole of the land comprised in certificate of title volume 1135 folio 622).
The parties have been involved in various proceedings before this court concerning the estate of their late father over many years.[1] This proceeding arose out of a dispute between the parties as to the proposed sale of the Bullsbrook property, which property was transferred to them on 22 November 2017 from their late father's estate.[2] By the time this proceeding was listed for trial, all parties accepted that the Bullsbrook property ought be sold by auction. The dispute between them had narrowed to who ought control the sale and what reserve ought be fixed. Save as to these matters, by the conclusion of the trial the form of order was largely agreed.
[1] See Gray v Gray[2010] WASC 389; Gray v Gray [2013] WASC 387.
[2] Plaintiffs' submissions filed 4 August 2021 par 7; exhibit P1, affidavit of R B Gray sworn 16 October 2020, RBG‑1 (which includes the certificate of title for the Bullsbrook property).
For these reasons, it is appropriate that Robert and Ashley's solicitors have control of the sale and the reserve be fixed in the amount of $1.7 million. I propose to make orders in the form set out at sch A to these reasons, and I will hear the parties as to costs.
Procedural history
Pleadings prior to trial
The proceeding was commenced by Robert and Ashley by a writ filed on 10 September 2020. In the statement of claim indorsed on the writ, among other things, it was pleaded that Cooper Road Holdings Pty Ltd as trustee for the Cooper Road Trust had made an offer to purchase the Bullsbrook property; that Robert and Ashley accepted and executed the offer to purchase on or about 7 August 2020; and notwithstanding request from Robert and Ashley's solicitors, Murray had refused to execute the offer to purchase. It was also pleaded that the purchase price was $3.1 million; and that the offer to purchase was conditional on the purchaser having the benefit of a 180 day due diligence period.
Robert and Ashley pleaded that they were entitled to an order for the sale of the Bullsbrook property pursuant to s 126(1) of the Property Law Act 1969 (WA); and sought an order that they be authorised on behalf of Murray to execute the offer to purchase that had been presented by Cooper Road Holdings Pty Ltd as trustee for the Cooper Road Trust (the Cooper Road Holdings offer).
Murray filed a defence to the proceeding on 9 October 2020, denying that Robert and Ashley were entitled to the relief claimed, and pleaded that there were 'good reasons' as stipulated in s 126(1) of the Property Law Act to refuse an order of sale of the Bullsbrook property. Murray objected to the 'onerous' extended due diligence period in the Cooper Road Holdings offer, which he pleaded left the parties vulnerable to the possibility of the sale falling through until such time had lapsed.
Murray pleaded that he had obtained a valuation of the Bullsbrook property dated 7 October 2020, which valued the Bullsbrook property at $1,546,000. Murray also pleaded that he had made an unconditional offer on 9 October 2020 to Robert and Ashley to purchase their interests in the Bullsbrook property for $1,030,666, and he sought by this proceeding an order that he be authorised on behalf of Robert and Ashley to execute acceptance of his offer. In the alternative, Murray sought an order that the Bullsbrook property be sold by public auction, unless a prior offer was made to purchase the Bullsbrook property for $1,546,000 or more prior to the auction; and that $1,546,000 be fixed as the reserve.
By a chamber summons filed on 16 October 2020, Robert and Ashley applied for summary judgment in this proceeding. They sought orders that the Bullsbrook property be sold free of encumbrances; that Robert be authorised on behalf of Murray to execute the Cooper Road Holdings offer that had been executed by the proposed purchaser and by Robert and Ashley; and that Murray pay the costs of the application and the action.
Before the summary judgment application was heard, an amended defence and counterclaim was filed on behalf of Murray. In short, Murray pleaded that the Cooper Road Holdings offer would (if executed by Robert, Ashley and Murray) in substance comprise the grant of an option to Cooper Road Holdings to purchase the Bullsbrook property on the terms stated therein; and while he admitted that Robert and Ashley were entitled to an order for the sale of the Bullsbrook property pursuant to s 126(1) of the Property Law Act, he denied that Robert and Ashley were entitled to the form of relief they sought. Murray pleaded a counterclaim by which he sought pursuant to s 126(2) of the Property Law Act an order for the sale of the Bullsbrook property by auction, with a reserve fixed in the amount of $1,546,000.
Before the summary judgment application was heard, Robert and Ashley amended their statement of claim, which was substantively in the same terms as the statement of claim that had been indorsed to the writ, save for pleading that they were entitled to an order for partition as follows:
6.The Plaintiffs are entitled to an Order for
thepartition by sale of the Property. Pursuant to the provisions of s126(1) of the Property Law Act 1969 (WA).The application for summary judgment was dismissed by the learned Master on 18 December 2020, with costs in the cause. Shortly after, Robert and Ashley abandoned their original claim and pleaded that the Bullsbrook property ought be sold by auction under s 126(1) of the Property Law Act, on terms pleaded in a document titled 're‑amended statement of claim' filed on 10 February 2021.
On two further occasions, 3 August 2021 and 8 September 2021, the pleadings filed on behalf of Robert and Ashley were further amended.[3] On behalf of Murray, the defence and counterclaim was also amended by pleadings filed on 23 February 2021; 3 August 2021 and 7 September 2021.
[3] Further re‑amended statement of claim filed 3 August 2021; further further re-amended statement of claim filed 8 September 2021.
At trial, Robert and Ashley's pleaded defence to Murray's counterclaim was in the form that had been filed on 19 March 2021.
In the end, while all accepted that the Bullsbrook property ought to be sold by auction, the parties differed as to who ought to have conduct of the sale, and what reserve price ought be fixed. The trial concerned these two matters.
Commencement of trial on 31 March 2021
The proceeding was entered for trial on 9 March 2021 and by orders made by the learned Master, was to proceed on the affidavit evidence filed in the summary judgment application subject to any proper objection.[4] In advance of trial, written submissions were filed on behalf of Robert and Ashley on 22 March 2021, and on behalf of Murray on 23 March 2021.
[4] Orders made by Sanderson M on 11 March 2021.
At the commencement of the trial, counsel for Robert and Ashley acknowledged that there was no dispute between the parties that the property should be sold, or that any such sale of the property should proceed by auction. The issues which remained as between the parties concerned which party was to have conduct of the sale by auction, and the fixing of a reserve price.[5]
[5] ts 25 (31 March 2021).
Counsel for Robert and Ashley read the affidavit sworn by Robert on 16 October 2020,[6] and indicated that was his clients' case. At that juncture, I raised with counsel for both parties a concern with respect to the evidence I understood was intended to be relied upon for the purpose of fixing a reserve price.
[6] Exhibit P1.
I was cognisant that valuations of the Bullsbrook property that had been procured by the parties over time were annexed to the affidavits deposed by Robert and Murray for the purpose of the summary judgment application. I queried whether counsel intended to rely upon the affidavits to establish the fact that valuations had been obtained, or, for the opinions expressed in them in circumstances where:
(a)the power conferred by s 126 of the Property Law Act is to be exercised judicially;
(b)leave had not been sought nor granted to adduce expert evidence at trial;
(c)I did not understand that it was intended that the valuers would be called;
(d)the valuations may not be admissible on the account of hearsay;
(e)the qualifications of the valuers had not been established; and
(f)in the event the valuations were admissible, how would the court resolve any conflict on affidavit without the benefit of hearing from experts and cross‑examination.[7]
[7] ts 27 (31 March 2021).
After allowing counsel time to confer, the trial was adjourned part heard on 31 March 2021 so as to allow for further conferral as to an appropriate way forward, and the proceeding was to be relisted for directions.[8]
Further directions
[8] ts 30, 32 (31 March 2021).
On 12 May 2021, after hearing counsel for the parties, it was ordered that the parties have leave to lead expert evidence at the trial; that the parties file and serve any further expert report on which they rely by 28 June 2021; that the trial continue on 9 and 10 August 2021; that the proceeding be relisted for directions only on Wednesday, 28 July 2021; and that the costs of the hearings on 31 March 2021, 13 April 2021 and 12 May 2021 be costs in the cause.
After leave was granted, expert reports prepared by licensed valuers as to the value of the Bullsbrook property were filed, and further directions were made on 28 July 2021 and 2 August 2021 for the purpose of trial.
Continuation of trial on 9, 10 August 2021 and 2 September 2021
The trial recommenced on 9 August 2021. At trial, Robert and Ashley relied upon a valuation prepared by Rowan Hemsley, a director of Hemsley Paterson, annexed to Mr Hemsley's affidavit which was deposed on 28 June 2021. Murray relied upon a valuation prepared by Glenn Rodney Cooper, a director of Valuations HQ, annexed to Mr Cooper's affidavit deposed on 25 June 2021 and a supplementary affidavit of Mr Cooper deposed on 27 August 2021. Both experts were cross‑examined. Robert also swore a further affidavit on 2 August 2021, which was read at trial, and was also cross‑examined.
On 4 August 2021, a supplementary outline of submissions was filed on behalf of Robert and Ashley, and was relied upon at trial.[9] A substituted outline of submissions was filed on the same day on behalf of Murray and was relied upon at trial.[10]
[9] ts 57 (9 August 2021).
[10] ts 62 (9 August 2021).
The cases advanced
On 3 August 2021, a further re‑amended statement of claim and a further re‑amended defence and counterclaim were filed.
Upon recalling the trial on 9 August 2021, counsel for Robert and Ashley took issue with Murray's further re‑amended defence and counterclaim.[11] It was submitted that by the amended pleading, Murray had withdrawn admissions that had been made in his pleading filed on 23 February 2021. In circumstances where no application had been made on behalf of Murray to withdraw the admissions, counsel for Robert and Ashley argued that the amendment ought be refused.
[11] ts 36 - 42 (9 August 2021).
On the earlier pleading, Murray had admitted that Robert and Ashley were entitled to an order for the sale of the property pursuant to s 126(1) of the Property Law Act; and it was that admitted that an order ought to be made pursuant to s 126(1), on some of the terms sought by Robert and Ashley. In the pleading of 3 August 2021, Murray pleaded as follows:
3.As to paragraph 2 of the re-amended statement of claim, the defendant –
a)does not admit that the plaintiffs are entitled to an order for the sale of the Property pursuant to s126(1) of the Property Law Act 1969 (WA) (Act);
…
5.The Defendant denies paragraph 4 of the re-amended Statement of Claim and says that the orders which should be made for the sale of the property are those set out in his counterclaim herein.
In response, counsel for Murray acknowledged that admissions had been withdrawn, however, submitted that the withdrawal had no effect on the issues between the parties, nor the substance of Murray's counterclaim. After hearing submissions from both counsel, and having had regard to the principles set out in Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212 at [19],[12] I granted leave to Murray nunc pro tunc to withdraw admissions previously made in his re‑amended defence and counterclaim filed on 23 February 2021, by the further re‑amended defence and counterclaim filed on 3 August 2021.[13] In so doing, I was particularly informed by there being no discernible prejudice to Robert and Ashley.
The pleadings & concessions
[12] The Court of Appeal citing, Sangora Holdings Pty Ltd v Dunstan (Unreported, WASC, Library No 990172, 13 April 1999); Hutton v Meston [2004] WASCA 178; and Essex Securities Pty Ltd v Lunt [2006] WASC 58.
[13] ts 43 (9 August 2021).
It is common ground that Robert, Ashley and Murray are the registered proprietors as tenants in common in equal shares of the Bullsbrook property.[14]
[14] Further further re-amended statement of claim filed 8 September 2021 par 1; additional further re-amended defence and counterclaim filed 7 September 2021 par 2.
Robert and Ashley pleaded that by reason of the above, they are entitled to an order pursuant to s 126(1) of the Property Law Act for the sale of the Bullsbrook property.[15]
[15] Further further re-amended statement of claim filed 8 September 2021 par 2.
The sale orders pressed by Robert and Ashley pursuant to s 126(1) are as follows:[16]
[16] Further further re-amended statement of claim filed 8 September 2021 par 4(a) - (l), prayer for relief par 1(a) ‑ (l).
(a)the Property be sold by public auction free of encumbrances (if any) of such of the encumbrancers as shall consent to the sale and subject to the encumbrances of such of them as shall not consent;
(b)the Property be sold subject to the 2018 Joint Form of General Conditions for the Sale of Property as published by the Law Society of WA and the Real Institute of Western Australia's General Conditions for the Sale of Land;
(c)the reserve price for the Property be $2,125,000;
(d)the First-named Plaintiff alternatively the solicitors for the Plaintiffs have conduct of the sale and be authorised to instruct an auctioneer for that purpose, such auctioneer to be a licensed auctioneer agreed by the parties or in default of agreement as nominated by the President of the Real Estate Institute of Western Australia Incorporated and the auctioneer is to be instructed to implement such marketing programme for the Property as he considers to be consistent with best industry practice, for the purpose of properly informing the market regarding the auction;
(e)the First-named Plaintiff alternatively the solicitors for the Plaintiffs report to the parties in writing on a weekly basis summarising the progress of the sale;
(f)the auctioneer's remuneration be fixed in accordance with the scale of charges of the Real Institute of Western Australia Incorporated;
(g)each party have liberty to bid at the sale and in the event of the Property being sold to a party, that party need not pay a deposit, and shall be at liberty, in making payment of the purchase price, to set-off against the purchase price an amount equal to one‑third of the purchase price (net of any commission, fees and expenses in respect of the sale);
(h)the net proceeds of sale, after payment of what shall be due to any encumbrancer or encumbrancers according to their priorities and of all other proper costs, charges and expenses of the sale, be paid into Court for the credit of this action to abide further Order;
(i)at the time of payment into Court an affidavit by the auctioneer to be filed exhibiting a statement certifying the result of the sale and expenses incurred in relation thereto, and an affidavit be filed by the First-named Plaintiff alternatively the Plaintiffs' solicitors exhibiting a schedule of their charges in relation to the conduct of the sale;
(j)the First-named Plaintiff alternatively the Plaintiffs' solicitors be entitled to deduct from the proceeds of sale (prior to payment into Court of the net proceeds of sale) an amount representing their reasonable charges in relation to their conduct of the sale;
(k)the Defendant be served with this Order (by means of service upon his solicitors) within 10 business days from the date hereof and that he deliver up possession of the Property to the First‑named Plaintiff alternatively the Plaintiffs' solicitors within 7 days after service of this Order on him;
(l)the parties have liberty to apply.
Robert and Ashley also sought an order that their costs be taxed and paid out of Murray's share of the proceeds of sale, and an order that the parties have liberty to apply generally on 48 hours' notice.[17]
[17] Further further re-amended statement of claim filed 8 September 2021 prayer for relief pars 2 and 3.
Murray admitted that he accepts that a sale of the Bullsbrook property would be for the benefit of all parties; and that the Bullsbrook property should be sold by public auction.[18] However, Murray did not admit that Robert and Ashley are entitled to an order for the sale pursuant to s 126(1) of the Property Law Act; denied that they are entitled to an order for sale; and said that the orders which should be made are those which are set out in his counterclaim.[19] Murray further denied that Robert and Ashley were entitled to the relief sought or to any relief, and pleaded that the court should grant the relief sought in his counterclaim.[20]
[18] Further further re-amended statement of claim filed 8 September 2021 par 3; additional further re‑amended defence and counterclaim filed 7 September 2021 par 4.
[19] Additional further re-amended defence and counterclaim filed 7 September 2021 par 3.
[20] Additional further re-amended defence and counterclaim filed 7 September 2021 par 6.
By his counterclaim, Murray pleaded that he is an interested party for the purposes of s 126(2) of the Property Law Act; both he and Robert and Ashley agree that the Bullsbrook property should be sold; in the premises, the sale of the Bullsbrook property would be for the benefit of all interested parties; and that an order should be made pursuant to s 126(2) for the sale of the Bullsbrook property upon the following terms:[21]
[21] Additional further re-amended defence and counterclaim filed 7 September 2021 par 7(a) ‑ (d).
i.the Property be sold by public auction free from the encumbrances (if any) of such of the encumbrancers as shall consent to the sale and subject to the encumbrances of such of them as shall not consent;
ii.the Property be sold subject to the 2018 Joint Form of General Conditions for Sale of Property as published by the Law Society of WA and the Real Estate Institute of Western Australia's General Conditions for the Sale of Land;
iii.the reserve price for the Property to be $1,700,000;
iv.the solicitors for the defendant, Lynn & Brown, have the conduct of the sale and be authorised to instruct an auctioneer for that purpose, such auctioneer to be a licensed auctioneer agreed by the parties or in default of agreement as nominated by the President of the Real Estate Institute of Western Australia Incorporated and the auctioneer is to be instructed to implement such marketing programme for the Property as they considered to be consistent with best industry practise for the purpose of properly informing the market regarding the auction;
v.the solicitors for the defendant do report to the parties in writing on a weekly basis summarising the progress of the sale;
vithe auctioneer's remuneration be fixed in accordance with the scale of charges of the Real Estate Institute of Western Australia Incorporated;
viieach party have liberty to bid at the sale, and in the event of the Property being sold to a party, that party need not pay a deposit, and shall be at liberty, in making payment of the purchase price, to set off against the purchase price an amount equal to one third of the purchase price (net of any commission, fees and expenses in respect of the sale);
viiithe net proceeds of sale, after payment of what shall be due to any encumbrancer or encumbrancers according to their priorities and of all other proper costs, charges and expenses of the sale, be paid into Court to the credit of this action to abide further order;
ixat the time of payment into Court an affidavit by the auctioneer to be filed exhibiting a statement certifying the result of the sale and the expenses incurred therewith and an affidavit be filed by the defendant's solicitors exhibiting a schedule of their charges in relation to the conduct of the sale;
xthe defendant's solicitors be entitled to deduct from the proceeds of sale (prior to payment into Court of the net proceeds of sale) an amount representing their reasonable charges in relation to their conduct of the sale.
xithe plaintiffs be served with this order (by means of service upon their solicitors) within 10 business days from the date hereof and that they deliver up possession of the Property to the defendant's solicitors within 7 days after service of this order upon them.
xiithe parties have liberty to apply.
Murray also sought an order that his costs of Robert and Ashley's claim and his counterclaim be taxed and paid out of Robert and Ashley's share of the proceeds of sale, and an order that the parties have liberty to apply.[22]
[22] Additional further re-amended defence and counterclaim filed 7 September 2021 prayer for relief pars (2) and (3).
Robert and Ashley relied upon their defence to counterclaim filed on 19 March 2021, which was filed in response to Murray's amended defence and counterclaim filed on 23 February 2021.[23] I understood by the pleading that Robert and Ashley admitted that Murray was an interested party for the purposes of s 126(2) of the Property Law Act; that it was agreed that the Bullsbrook property should be sold; and that the sale of the Bullsbrook property would be for the benefit of all interested parties.
[23] ts 43 (9 August 2021).
Applicable principles
Conduct of the sale
It was common ground as between the parties that in a property sale proceeding conducted pursuant to s 126 of the Property Law Act, the court has a complete discretion as to who may be appointed to conduct a sale. Further, while ordinarily the plaintiff is given conduct of the sale, 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.[24]
[24] Bombara v Bombara [2010] WASC 314 [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]; Stevens v Wright [2021] WASC 36 [66]; plaintiffs' submissions filed 4 August 2021 pars 15 ‑ 16; defendant's submissions filed 4 August 2021 pars 13 ‑ 15; ts 55 (9 August 2021).
In Bombara v Bombara, Allanson J summarised the position as follows:
[79]Section 126 of the Property Law Act provides an alternative remedy to partition. In an action for partition, if a party or parties interested to the extent of a half share or more requests the court to direct a sale of the land and a distribution of the proceeds 'the court shall, unless it sees good reason to the contrary, direct a sale accordingly': s 126(1); and see Bray v Bray [1926] HCA 40; (1926) 38 CLR 542, 545 (Knox CJ); Martin-Smith v Woodhead.
[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. In Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [22], speaking of the discretion to award costs, Gaudron and Gummow JJ said:
The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as 'the subject matter and the scope and purpose' of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be 'definitely extraneous to any objects the legislature could have had in view'.
I adopt and apply these principles in determining which of the parties ought have conduct of the sale of the Bullsbrook property.
Reserve price
Under s 126(4) of the Property Law Act, on directing a sale, the court may also give all necessary or proper consequential directions.
All parties sought that the court fix a reserve price for the purpose of auction. In fixing the reserve, counsel on behalf of Robert and Ashley submitted that sale pursuant to s 126 of the Property Law Act was not a 'compulsory sale process' (like, for example, a mortgagee sale), nor analogous to the same. Counsel submitted that it followed that the principles which inform fair price in a compulsory sale process do not apply to sale pursuant to s 126.[25] In this regard, counsel noted that 'with a compulsory sale process, a fair price is not necessarily the market value', citing Quigley J in Hoskinv The Sherriff for the State of Victoria [2018] VSC 216 at [65], where her Honour observed:
In making a determination as to the adequacy of the highest bid, the Sheriff is entitled to take into account that the sale, being a compulsory process, is usually one at which a full and fair market value for the property will not be expected and some allowance must be made for low prices being obtained at such sales.
[25] Plaintiffs' submissions filed 4 August 2021 pars 17 ‑ 18.
Counsel submitted that in a mortgagee sale, the primary objective is the sale of the property, whereas in a sale conducted pursuant to s 126, an important further factor to be taken into account is maximisation of return for the registered proprietors.[26]
[26] ts 46 (9 August 2021).
On behalf of Murray, it was submitted that although there are two valuations before the court, the court does not need to finally determine which valuation is more accurate or which it prefers, or what the market value of the Bullsbrook property actually is, as that will be determined by the market via the auction process. Counsel submitted that determining the market value now would be unnecessary, and would entirely defeat the purpose of the auction.[27]
[27] Defendant's submissions filed 4 August 2021 par 21.
On behalf of Murray, it was further submitted that in this context, a relevant analogy can be drawn with the position when the court sets a reserve as part of orders for judicial sale. In such cases, the court fixes such a reserve price as will protect the interests of mortgagees and at the same time not render the sale abortive.[28] Further, it was submitted that it is relevant, in setting a reserve, to note that the price achieved in a compulsory sale process may be less than might otherwise be achieved.[29]
[28] Defendant's submissions filed 4 August 2021 par 22, citing Woolley v Colman (1882) 21 ChD 169, 173, Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361, 381.
[29] Defendant's submissions filed 4 August 2021 par 23, citing Hoskin v The Sherriff for the State of Victoria [65].
In the present case, counsel for Murray submitted that the focus should be on setting the reserve at a realistic amount which:[30]
(a)operates as nothing more than a safety net to prevent a sale at a definite and significant undervalue, having regard to the subjectivity of the valuations;
(b)reflects that this is, or is analogous to, a compulsory sale process;
(c)is unlikely to render the sale abortive, exclude a genuine buyer or otherwise interfere with the auction process, and
(d)consequently, minimises the likelihood of the matter having to come back before the court for further supervision.
[30] Defendant's submissions filed 4 August 2021 par 24.
Neither counsel referred to an authority which described what ought inform the fixing of a reserve price in the context of a s 126 sale. In light of the court's broad discretion, I suggest that the fixing of a reserve will on each occasion be informed by the surrounding circumstances. I proceeded on the basis that in exercising such discretion, the court must have regard to matters which are consistent with the objects of the Act; and that the power conferred by the section is to be exercised judicially.[31]
[31] Bombara v Bombara [81], referring to Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [22].
The evidence
In the course of the trial, 13 exhibits were tendered.
On behalf of Robert and Ashley, counsel read two affidavits deposed by Robert on 16 October 2020 and 2 August 2021, respectively;[32] and the affidavit of Mr Hemsley deposed on 28 June 2021.[33] Counsel also tendered a bundle of documents which comprised the source data for sales evidence included in Mr Hemsley's valuation report;[34] the draft north‑east sub‑regional planning framework prepared by the Western Australian Planning Commission dated May 2015;[35] a bundle of transfer documents concerning the transfer of Lot 6 on Diagram 58220 (being the whole of the land comprised in certificate of title volume 1567 folio 228);[36] and an ASIC company search for Caronite Pty Ltd ACN 008 890 499.[37]
[32] Exhibits P1 and P2.
[33] Exhibit P3.
[34] Exhibit P4.
[35] Exhibit P5.
[36] Exhibit P6.
[37] Exhibit P7.
On behalf of Murray, counsel tendered the north‑east sub‑regional planning framework prepared by the Western Australian Planning Commission dated March 2018;[38] a brochure concerning the Bullsbrook freight and industrial district structure plan;[39] a brochure concerning the Muchea industrial park structure plan;[40] read two affidavits sworn by Mr Cooper on 25 June 2021 and 27 August 2021, respectively;[41] and tendered a map for the purposes of providing visual aid.[42]
The Bullsbrook property - overview
[38] Exhibit D1.
[39] Exhibit D2.
[40] Exhibit D3.
[41] Exhibits D4 and D5.
[42] Exhibit D6.
I did not understand it to be controversial that the Bullsbrook property is a 40.46 hectare parcel of land located in Bullsbrook, approximately 30 kilometres from the Perth central business district and 37 kilometres by road.
The Bullsbrook property is situated on the southern side of Cooper Road, approximately 1 kilometre west of Tonkin Highway. There are two properties on the northern side of Cooper Road which are operating turf farms and the surrounding properties are predominantly utilised as lifestyle rural lots with some utilised for small scale grazing operations. There are two residential dwellings on the Bullsbrook property, which are vacant.[43]
[43] Exhibit P3, affidavit of R Hemsley sworn 28 June 2021, RH-1, Executive Summary (Description of Property), pt 3.1 (Site Description), pt 4.1 (Situation), pt 4.2 (Surrounding Development) and pt 6.1 (General Description); exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC-03, pt 4.2 (Land Area) and pt 6.1 (Property Comments).
The land the subject of the Bullsbrook property is softly undulating with some low‑lying sections. There are various sections of vegetation, and the soil is predominantly light sandy soils.[44]
[44] Exhibit P3, affidavit of R Hemsley sworn 28 June 2021, RH-1, Executive Summary (Description of Property) and pt 3.1 (Site Description); exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC-03, pt 5.2 (Ancillary Improvements).
The Bullsbrook property is zoned as 'General Rural' under the City of Swan's Local Planning Scheme No 17 as published in the Western Australian Government Gazette No 28 on 18 February 2008, and Rural under the Metropolitan Region Scheme.[45]
[45] Exhibit P3, affidavit of R Hemsley sworn 28 June 2021, RH-1, Executive Summary (Zoning) and pt 5.0 (Zoning & Town Planning); exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC-03, Executive Summary and pt 4.3 (Town Planning).
At trial, the experts both refer to the north‑east sub‑regional planning framework dated March 2018 (the Planning Framework document), which provides strategic guidance to government agencies and local governments on land use, land supply, land development, environmental protection, infrastructure investment and the delivery of physical and community/social infrastructure for the subregion.[46] Mr Hemsley also referred to the 2015 draft of that document.[47] The framework is a strategic planning document, which provides a high‑level strategic context to guide future development and address key challenges for the subregion.[48]
[46] Exhibit D1, page 5; ts 67 (9 August 2021).
[47] ts 89 (9 August 2021).
[48] Exhibit D1, page 59; ts 68 (9 August 2021).
Counsel for Murray noted that the terms 'industrial', 'industrial expansion' and 'industrial investigation' are defined in the Planning Framework document, which terms are referenced by the experts in their reports.[49]
[49] Exhibit D1, page 74; ts 69 (9 August 2021).
The Bullsbrook property is located within an area identified as 'Industrial Expansion' under the Planning Framework document, meaning land identified for future industrial development.[50]
[50] Exhibit D1, page 74.
As to dwellings, Mr Hemsley recorded in his valuation report that the Bullsbrook property includes two residential dwellings, however, at the time of inspection, each had been secured with corrugated iron across all openings and Mr Hemsley had been unable to inspect them internally. He also recorded that it was evident from an external inspection that the dwellings had been vandalised, presented in a poor state of repair and contribute nominal value. Other improvements include two general purpose iron clad sheds, various other smaller sheds and rainwater tanks.[51]
[51] Exhibit P3, affidavit of R Hemsley sworn 28 June 2021, RH-1, Executive Summary (Description of Property) and pt 6.0 (Improvements).
As noted above, Robert, Ashley and Murray hold an estate in fee simple in the land as tenants in common. Robert and Ashley together hold two undivided third shares, and Murray holds one undivided third share. No party claimed that there were any other interests in relation to the Bullsbrook property to which the court ought have regard.
Lay affidavit evidence
It is appropriate to further outline the lay evidence given by affidavit at trial.
The first affidavit deposed by Robert was sworn on 16 October 2020, to which Robert attached a number of documents. Robert's first affidavit was subject to a number of objections at trial, which were properly conceded by counsel for Robert and Ashley.[52]
[52] ts 71 - 73 (9 August 2021).
In his first affidavit, Robert deposed to the parties to the proceeding being the registered proprietors as tenants in common in equal shares of the Bullsbrook property; to the presentation of an offer for the purchase of the Bullsbrook property by Cooper Road Holdings; to email communications between the parties concerning the Cooper Road Holdings offer; to Robert and Ashley having signed the Cooper Road Holdings offer on 7 August 2020; and to Robert having commenced this proceeding as a result of Murray's continued refusal to sign the Cooper Road Holdings offer. Robert attached to his first affidavit a copy of the Cooper Road Holdings offer; and the various email communications described by Robert in his affidavit.
In the course of the proceeding, Robert made a further affidavit in which he described two additional offers that he had received which concerned the Bullsbrook property, which affidavit was deposed to on 29 July2021 and was the subject of submissions at a directions hearing on 2 August 2021. At the directions hearing on 2 August 2021, it was ordered that by 4.00 pm that day, any further affidavit intended to be deposed to by Robert as to the circumstances in which the first and second offer described in the affidavit of 29 July 2021 came to be made and a copy of the same provided to Murray, be filed and served.
On 2 August 2021, Robert made a second affidavit, to which Robert attached documents marked RBG-1 to RBG-9.
In his second affidavit, Robert deposed to having been contacted in May 2021 by Vincent Siciliano, a commercial real estate agent, with regard to the Bullsbrook property; to having received on 27 May 2021 a draft option to purchase land in favour of Correda Property Group Pty Ltd, which nominated an option fee in the amount of $125,000, and an option period of 31 May 2021 to 12 July 2021, and which contemplated a purchase price of $2.5 million for the Bullsbrook property with settlement to occur 120 days after the exercise of the option. The draft option to purchase was annexed to Robert's second affidavit and marked RBG‑1.
Robert further deposed to having received on 1 June 2021 a further communication from Mr Siciliano, which attached the option to purchase land in final form as presented by CPG Bullsbrook Pty Ltd, presented with an unconditional contract of sale, signed by the proposed option holder. The option to purchase was annexed to Robert's second affidavit and marked RBG‑2.
Robert deposed to having signed the option described above on 3 June 2021; and to having instructed his solicitors to send the formal option to purchase to Murray's solicitors on 22 June 2021.[53]
[53] Exhibit P2, affidavit of R B Gray sworn 2 August 2021 par 10, RBG-4.
Robert also deposed to his communications with Alex Yeo of Savills Australia in mid‑May 2021 and on 24 June 2021; and to receiving from Mr Yeo on 25 June 2021 an offer to purchase the Bullsbrook property. The offer was annexed to Robert's second affidavit and marked RBG‑5. The offer was made by R105 Property Pty Ltd as trustee for the R105 Trust. The offer contemplated a deposit of $25,000 to be paid within 14 days of acceptance; a purchase price of $3,641,497; and a due diligence period of 60 days.
Among other things, Robert deposed to his belief that the offer described above was sent by his solicitors to Murray's solicitors on 28 June 2021; and to being informed on 1 July 2021 that Murray was not agreeable to either offer.[54] Robert further deposed that on 16 July 2021, he received an email communication from Mr Yeo clarifying aspects of the offer received on 25 June 2021, which Robert deposed to having instructed his solicitors send to Murray's solicitors; and to which he believes no response was received.[55]
[54] Exhibit P2, affidavit of R B Gray sworn 2 August 2021 pars 17, 19, RBG-6, RBG-8.
[55] Exhibit P2, affidavit of R B Gray sworn 2 August 2021 pars 21, 22, RBG-9.
In submissions made on behalf of Murray, the following passage from the correspondence sent on 1 July 2021 to Robert and Ashley's solicitors was emphasised:[56]
The property appears to be attracting interest, given that there have now been two seemingly unsolicited offers to purchase the property. In light of this, we believe it will be in the best interest of all parties for the property to be sold at auction, thereby allowing it to be tested at market and giving it the best chance of being sold for the highest possible price.
[56] Exhibit P2, affidavit of R B Gray sworn 2 August 2021, RBG-8; ts 59 (9 August 2021); ts 193 (2 September 2021).
I also note the following paragraph:
Our client will not sign any contract for sale of the property that is subject to due diligence. We believe the property will need to be sold with an unconditional offer because an offer subject to due diligence does not guarantee a sale. We believe a contract for sale subject to due diligence is unlikely to result in a sale.
During cross‑examination, Robert gave evidence as to the substance of matters discussed in separate telephone conversations with Mr Siciliano as to Mr Siciliano's potential remuneration by way of retainer or commission, and Mr Yeo in relation to the then status of this proceeding and the length of the due diligence period contemplated in the terms presented on behalf of R105 Property as trustee for the R105 Trust.[57]
[57] ts 78 - 81 (9 August 2021).
Robert also accepted that there had been a series of disputes with Murray concerning various properties since the death of his father in 2003, and Robert's evidence was that as to three properties that had been left to them, Murray had objected to the sale of all of them.[58]
Valuation evidence
[58] ts 82 (9 August 2021).
Mr Hemsley and Mr Cooper are certified practicing valuers and there was no contest as to their respective qualifications and expertise.[59]
[59] See exhibit P3, affidavit of R Hemsley sworn 28 June 2021, pars 1 - 2, RH-1, annexure 5 (Curriculum Vitae); and exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC-01 (Mr Cooper's qualifications); ts 89 (August 2021).
Both experts assessed market value by application of a direct comparison method. There is no doubt that such approach is capable of being a satisfactory method of valuation.[60]
Evidence of Mr Hemsley
[60] Duffy v The Minister for Planning [2003] WASCA 294 at [22] to [35], McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 at [152] to [170], Kelliher v Commissioner for Main Roads [No 2] [2015] WASC 478 at [89] to [114].
The plaintiffs also tendered the affidavit of licensed valuer, Mr Hemsley sworn on 28 February 2021.[61] By his affidavit, Mr Hemsley deposed to his qualifications; to having been engaged by the plaintiffs' solicitors to provide a valuation of the property; to having attended the Bullsbrook property for the purposes of valuation; and to having prepared a valuation dated 15 June 2021. Mr Hemsley attached to his affidavit his valuation report dated 15 June 2021, marked RH‑1.
[61] Exhibit P3.
Mr Hemsley's affidavit was the subject of objection at trial, with amendments made to the wording of par 97 of the valuation report annexed to his affidavit.[62]
[62] ts 85 - 87 (9 August 2021).
Among other things, Mr Hemsley recorded in his valuation report an executive summary of his findings; title particulars; land details; the location of the Bullsbrook property; zoning and town planning; a description of improvements; environmental, heritage and cultural issues; his approach to ascertaining whether Goods and Services Tax (GST) had been included in sales evidence; market commentary; his valuation approach and the market evidence considered when arriving at his opinion of market value; various disclaimers; and his valuation of the Bullsbrook property.
In his valuation report at pars 85 and 86, Mr Hemsley noted that a fundamental consideration when arriving at an opinion of market value is the concept of highest and best use, which is defined by the Australian Property Institute as 'the most probable use of a property which is physically possible, appropriately justified, legally permissible, financially feasible and which results in the highest value of the property being valued'. As to the Bullsbrook property, at par 87 of his report, Mr Hemsley opined as follows:
Taking into consideration the all relevant factors, particularly in relation to the zoning of the land, the highest and best use is some form of rural land use in accordance with the General Rural zoning in the short to medium term. However, the land is identified as being suitable for future industrial land use in the longer term.
Mr Hemsley recorded that in providing an assessment for the Bullsbrook property, regard had been given to the following factors:
▪The location of the property and the surrounding land uses;
▪The area of the land, its configuration and topographical features;
▪The zoning of the land, including under the sub-regional planning framework;
▪The availability of utility services;
▪Standard of improvements;
▪The available comparable sales evidence within reasonable proximity; and
▪The general state of the local real estate market.
Based on the information supplied and all other relevant factors, Mr Hemsley recorded his opinion that the market value of the Bullsbrook property, subject to any comments, assumption, conditions and limitations noted through his report, to be $2,125,000 (exclusive of GST), hypothetically apportioning that amount in full for land value, and nil for improvements value.[63] Mr Hemsley opined that the market value sat broadly between $50,000 to $55,000 per hectare, and adopted the midpoint of the range ($52,500 per hectare) to conclude a market value of $2,125,000.[64]
[63] Exhibit P3, affidavit of R Hemsley sworn 28 June 2021, RH-1, pt 12 (Valuation).
[64] Exhibit P3, affidavit of R Hemsley sworn 28 June 2021, RH‑1, pars 106 ‑ 108.
As to the sales analysed by Mr Hemsley, they were identified at pars 90 and 91 of his valuation report, and the sales dates ranged from April 2014 to December 2020. In the course of cross‑examination, Mr Hemsley expressed the view that in this instance, the most comparable sales evidence was somewhat dated.[65]
[65] ts 108 (9 August 2021).
At par 92 of his valuation report, Mr Hemsley noted that there was a dearth of directly comparable and recent market evidence from which to gauge an opinion of market value.
In the course of giving his evidence, Mr Hemsley acknowledged that he had considered a sale from April 2014 and explained the approach he adopted in circumstances where there is a lack of directly comparable recent market evidence.[66] Mr Hemsley explained that he had elected to analyse evidence of comparable sales, although somewhat dated, with regard to market movements that occurred between the sale date and the valuation date and adjusting for the same.[67]
[66] ts 94 (9 August 2021).
[67] ts 94 (9 August 2021).
Mr Hemsley was cross-examined at length as to his reliance upon certain properties for the purpose of valuation, and not others.[68] I had regard to the same.
[68] ts 109 - 132 (9 August 2021).
As to the potential use of the Bullsbrook property, Mr Hemsley further noted at pars 93 to 96 of his valuation report:
Although the subject is zoned General Rural under the local planning scheme and Rural under the MRS, it is identified as Industrial Expansion under the sub-regional planning framework which guides future land use.
The time frame around any rezoning of land within this industrial expansion zone is an unknown and it is not uncommon to see limited market activity in such areas, as owners hold land until such time as planning progresses.
Acquisitions at this early stage of planning are speculative and although there is significant uncertainty around the industrial potential, it is reasonable to expect the market would need to pay a rate over [and] above standard rural land rates.
There is a significant area of land in Bullsbrook already zoned Industrial under the MRS. This land sits between the Tonkin Highway and Great Northern Highway, north of Stock Road . Within this, there is a large land holding of 191.8 hectares held by Harvis Capital to the east of Tonkin Highway on Stock Road, who put forward a proposal for an intermodal facility in late 2020. Harvis Capital are the same proponents that are currently developing a substantial industrial park in Muchea. Whilst this is not specifically relevant to the subject land, it provides some indication that there is an experienced developer with a substantial footprint in the area that is attempting to drive forward development.
At par 105 of his valuation report, Mr Hemsley noted:
Given the lack of directly comparable evidence and uncertainty around future development potential and time frame of such, there is a far greater degree of subjectivity in forming an opinion of value than would normally exist.
In the course of cross‑examination, Mr Hemsley acknowledged that the consequence of there being greater subjectivity was that there was perhaps a greater scope for variation in opinion.[69] He further acknowledged that where a property was valued in circumstances where there is a greater degree of subjectivity, a 10 to 20% variation between valuations would not strike Mr Hemsley as being unusual.[70]
[69] ts 106 - 107 (9 August 2021).
[70] ts 110 (9 August 2021).
As to Mr Hemsley's valuation, it was Murray's primary contention that there was little utility in closely scrutinising the valuation in circumstances where this is not a valuation case, and where there is a particularly high degree of subjectivity in the valuations. However, it was submitted that to the extent that the court requires some further assistance in setting the reserve price, an analysis of Mr Hemsley's valuation supports the view that Mr Cooper's valuation was likely to be the more reliable of the two. Murray's critique of Mr Hemsley's valuation was set out succinctly at pars 37 and 38 of the defendant's submissions filed on 4 August 2021, and in counsel's submissions at trial.
Evidence of Mr Cooper
As to affidavit evidence tendered on behalf of Murray, the affidavit of licensed valuer, Mr Cooper sworn on 25 June 2021, was read.[71] Mr Cooper deposed to his qualifications; to be being engaged by Murray's solicitors to provide a valuation of the Bullsbrook property; and to attending the Bullsbrook property and preparing a valuation dated 17 June 2021. Mr Cooper attached to his affidavit a copy of his qualifications and his valuation report dated 17 June 2021.
[71] Exhibit D4.
The first affidavit of Mr Cooper was subject to objection at trial, following which the strike out of various parts was conceded by counsel for the defendant.[72]
[72] ts 144 - 146 (2 September 2021).
Among other things, Mr Cooper recorded in his valuation report an executive summary of his findings; his instructions and assumptions; a description of land and location details; improvements; his comments and valuation approaches; the sales evidence taken into consideration when arriving at his opinion of market value; his valuation rationale; and his valuation of the Bullsbrook property.
As to the future use of the Bullsbrook property, Mr Cooper opined that 'the subject is in the process of consideration to a possible change of use to industrial, however, likely to still be many years (if not decades) away.'[73] Mr Cooper further opined that 'proximity to the new Highway and long‑term possible zoning change are considered to be significant contributing factors to the property value.'[74]
[73] Exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC-03, page 15.
[74] Exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC-03, page 27.
As to the improvements, Mr Cooper noted in his valuation report that there are two buildings and ancillary structures located on the Bullsbrook property. In regard to the same, Mr Cooper observed:[75]
Both buildings were boarded up at the date of inspection, unable to be internally inspected. It does appear from the external inspection and other information provided that both have significant internal damage and if retained would likely require full internal renovations.
[75] Exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC-03, page 22.
Further, at pt 6.1 of his valuation, Mr Cooper noted:[76]
Other improvements consisted of a dilapidated shed, a basic stable development (possibly still usable), concrete water tanks and old dilapidated fencing. Power did appear to be connected and there did appear to be, at some point, internal reticulated water on site from either the water tanks or we understand there may have been a bore on site (unable to confirm).
Overall, the improvements are in a very poor condition. It is considered that many incoming purchasers would likely either spend significant expenditure to re-establish these houses or, if a new house was to be considered, it is likely that at least one may need to be demolished. This is due to council regulations for a maximum one main dwelling and one (discretionary) ancillary dwelling on site.
There are still considered to be some benefits to the improvements on site such as the power run in and stables.
We have considered an added value in the $10,000 - $20,000 range, with the majority of property value considered to be attributed to the underlying land value.
[76] Exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC-03, page 27.
As to the market, Mr Cooper recorded that there 'have been very few property transactions in the Bullsbrook locality over the last five years to calculate specific statistics in the immediate vicinity …'.[77]
[77] Exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC-03, page 23.
As to the valuation methodology applied by Mr Cooper in valuing the Bullsbrook property, among other things, he recorded as follows at pt 6.3 of his valuation report:[78]
When comparing sales evidence of rural properties this evidence is often broken down into a rate per ha to more accurately compare properties of varying sizes.
It is considered that the most appropriate method of assessment in this instance is to break down each sale into a rate per ha of land area plus an assessed added value of improvements which is generally ascertained by comparing vacant land sales against improved sales in each area.
We have then compared each of these sales back to the subject analysing the differences in factors affecting land rates and added value of improvements to assess a market value on the subject property.
It is usually the case that the larger the site, the lower the rate per hectare as the size increases (all else being equal). We have kept this in mind when comparing sales evidence of varying size lots, both larger and smaller than the subject property.
[78] Exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC-03, page 30.
As to the sales analysed by Mr Cooper, they were identified at pt 7.1 of his valuation report, and summarised at pt 8.1.[79] In preparing his valuation report, Mr Cooper had included information with respect to 14 properties. Parts of Mr Cooper's valuation was the subject of successful objection. I understand from Mr Cooper's evidence that he stands by his valuation, which was in the end supported by, among other things, his analysis of four recent sales (from 2020 and 2021) and four dated sales (from 2017 and 2018).
[79] Exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC-03, pages 31 - 44, 45.
In the course of cross‑examination, Mr Cooper was asked questions concerning his inclusion of information in his report that had been described by Mr Cooper as 'reportedly under offer yet to settle' and 'properties for sale'. (Successful objection had been taken to these passages in Mr Cooper's report). Mr Cooper's evidence was to the effect that he had included the same for information purposes, but that the information was not taken into account when assessing value.[80]
[80] ts 164 - 165 (2 September 2021).
In cross‑examination, Mr Cooper's evidence was to the effect that he had given the sale of 46 Chitty Road Road, Bullsbrook (which sold on 27 October 2017 for $56,818 per hectare) little weight in his valuation of the Bullsbrook property.[81]
[81] ts 166 (2 September 2021), referring to exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC‑03, pt 7.1, page 40.
He also confirmed that he had considered the sale of Lots 50 and 3488 Great Northern Highway, Muchea to be most comparable,[82] and when asked if it was correct to say that Mr Cooper was now basing his valuation principally on the sale of that property (which took place on 10 January 2020 for $43,601 per hectare), Mr Cooper's evidence was as follows:[83]
This is probably my – what I believe is the most comparable. It's - and, again, this goes back to the subjectivity of this particular property and this particular valuation. Typically, as valuers, we don't like to rely on single pieces of evidence; we like to get a basket of sales and look at them all in - as a group, but that just does not exist in this case. There is not a basket of evidence of good evidence and - and, in my opinion, this is one of the more recent sales, one of the more easier to draw comparisons from, given the location and zonings and potential zonings and that sort of thing. In my opinion, this is - and I've said that in my report – the most comparable sale and I honestly cannot see us being higher than this on a rate per hectare.
[82] ts 175 (2 September 2021), referring to exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC‑03, pt 7.1, page 31.
[83] ts 177 (2 September 2021).
At pt 8.1 of his valuation report, Mr Cooper made the following observations and expressed his opinion as to value as follows:[84]
Overall, it is noted that the improvements on site have only marginal added value, (assessed at $10,000 - $30,000 added value), the majority of value is attributed to the land component. When analysing surrounding evidence, we have compared primarily on a rate per hectare basis to allow for a clearer comparison between blocks of differing block sizes.
It is noted that there is a distinct lack of directly comparable sales evidence.
There does not appear to be any settled sales over the last several years of broadly similar properties to the subject.
[84] Emphasis and underlining as per original report.
This does tend to make this assessment more subjective than usual.
…
Purely Rural evidence (if there were no other contributing zoning factors) would indicate a land rate at around $28,000 - $32,000 per hectare of land indicating a mid-point of approximately $30,000 per hectare ($1,200,000 approximate land value) for the subject on this basis, that is, if it was just purely rural land.
Given the interest from the market in the long-term potential of the zoning change, it is considered that figures higher than this would be expected.
…
After analysis of the sales evidence within the locality, it is our opinion that the subject property has a land value within a range of $40,000 per hectare to $46,000 per hectare, this equates to $1,630,000 to $1,880,000 (rounded plus added value of improvements). We have adopted a market value at the mid-point of this range being $43,000 per hectare, and after a small allowance for the improvements, have rounded this to $1,750.000.
A relatively wide value range has been provided reflecting the recent fluctuations in the current market and very limited evidence that is currently available for a property of this nature.
We would consider an offer within this range to be acceptable and if offered for auction would recommend a reserve towards the lower end of this range allowing for offers to be received above.
The assessed market value was expressed by Mr Cooper exclusive of GST,[85] and for valuation purposes, Mr Cooper accepted in cross‑examination that the improvements on the Bullsbrook property were largely irrelevant for valuation purposes.[86]
[85] Exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC-03, pt 9.2, page 47.
[86] ts 159 (2 September 2021).
In the course of his evidence, Mr Cooper expressed views as to a number of sales that had been considered by Mr Hemsley in the preparation of his report, which had not been referenced by Mr Cooper in his report.[87] In his evidence, Mr Cooper explained features of those properties that he considered made them not comparable for valuation purposes, which included the age of the sale and the use of the properties (for example, he described three of the properties as being attractive rural lifestyle properties).[88] I had regard to the same.
[87] ts 154 - 156, 184 - 187 (2 September 2021).
[88] ts 154 - 155, 189 (2 September 2021).
A second affidavit of Mr Cooper sworn on 27 August 2021 was also read at trial.[89] In his second affidavit, Mr Cooper addressed his initial reliance on the sale of Lot 6 Stock Road, Bullsbrook on 15 December 2017 in the preparation of his valuation for the Bullsbrook property. In his second affidavit, Mr Cooper expressed the view that the sale was of no relevance in assessing the value of the Bullsbrook property on the basis of information of which he was subsequently made aware. Mr Cooper also deposed that despite this, the opinion expressed in his valuation report remained the same.[90]
[89] Exhibit D5.
[90] Exhibit D5, affidavit of G R Cooper sworn 27 August 2021, par 9.
At par 10 of Mr Cooper's second affidavit, he further deposed that on 3 June 2021 he asked for and was provided with a copy of the valuation of the Bullsbrook property conducted by Gerard Major on 1 October 2020. Mr Cooper deposed that he requested that valuation because he was of the view that valuers should collect as much information as possible regarding sales of comparable properties to determine the value of a subject property, and he wanted to see what sales evidence Mr Major had discovered in conducting his valuation. He deposed that he did not rely upon Mr Major's valuation for any other purpose.[91]
[91] See also ts 148 (2 August 2021).
In the course of his evidence, Mr Cooper emphatically agreed with the opinion expressed by Mr Hemsley at par 105 of his valuation report, which paragraph is reproduced at [86] above.[92]
[92] ts 154 (2 September 2021).
As to subjectivity, Mr Cooper's evidence was that the valuation of the Bullsbrook property sat:
very much at the higher end of subjectivity. One of the more subjective valuations I've done, given the lack of evidence and the differences and the lack of actual clear-cut knowledge of what is happening through that area and timeframes and everything.
It was Mr Cooper's evidence that given the degree of subjectivity, he did not regard the difference in valuations (as between his valuation and that of Mr Hemsley) surprising.[93] Mr Cooper further described the valuation of the Bullsbrook property to be one of the most subjective valuations he had done in about 27 years.[94]
[93] ts 154, 187, 188 (2 September 2021).
[94] ts 188 (2 September 2021).
As to Mr Cooper's recommendation as to reserve price reproduced above at [101], Mr Cooper's evidence was that he had significant experience in advising on reserve prices for properties.[95] As to his experience, Mr Cooper's evidence was as follows:[96]
I would have done dozens, if not possibly over hundreds, of valuations for mortgagee in possession, which is, effectively, doing the same: setting a reserve for – for auction purposes. In a lot of cases, they are auctioned. I've done several for pre-sale advice for private clients. I've done – set the auction reserve prices for land estate for the state government, numerous ones.
[95] ts 157 (2 September 2021).
[96] ts 157 (2 September 2021).
As to Mr Cooper's valuation, it was Robert and Ashley's position that, accepting there was some subjectivity in a valuation of the land (as accepted by both valuers), Mr Hemsley's valuation was more soundly based as to comparative sales and should be preferred.
Disposition
I am satisfied that together Robert and Ashley are entitled to avail themselves of relief under s 126(1) of the Property Law Act, and I am also satisfied that Murray is an interested party for the purposes of s 126(2) of the Property Law Act. Further, I am satisfied that an order should be made for the sale of the Bullsbrook property. The parties established their entitlement to relief is the form of sale under s 126, and the court sees no good reason to the contrary. There is no evidence that partition may be possible (nor was partition promoted by any party).
As to the issues which remain in contention as between the parties, I find as follows.
Conduct of the sale
The email correspondence attached to Robert's first affidavit reveals a breakdown in the relationship between the parties.[97] There have been a series of disputes concerning various properties since the death of their father in 2003.[98] It is clear that these parties cannot jointly have conduct of the sale, nor be authorised to jointly instruct an auctioneer for that purpose. No party presses for the same or suggests that such joint endeavour would be possible.
[97] Exhibit P2, affidavit of R B Gray sworn 2 August 2021, RBG-2, RBG-5.
[98] ts 82 (9 August 2021).
I understood that as Ashley resides in Thailand, it was accepted on behalf of Robert and Ashley that it would not be convenient for Ashley to have conduct of the sale.[99] The contest for control was therefore between Robert or the solicitors for Robert and Ashley on the one hand, and the solicitors for Murray on the other.
[99] ts 50 (9 August 2021).
For the following reasons, conduct of the sale should be given to the solicitors for Robert and Ashley. In so concluding, I have weighed the evidence before me and the submissions made on behalf of all parties in the balance. I am particularly informed by the following.
First, Murray first sought an order for sale by auction pursuant to s 126(2) of the Property Law Act by his counterclaim, and counsel for Murray submitted that all other things being equal, having been the first to seek sale by auction, Murray ought have conduct of the sale.[100]
[100] ts 56 (9 August 2021); ts 207 (2 September 2021); defendant's submissions filed 4 August 2021 pars 2, 4, 19.
Robert and Ashley did not initially seek a sale by auction, but did so after they abandoned their initial claim following dismissal of their application for summary judgment. However, Robert and Ashley first approached the court seeking relief in relation to the stalemate that had arisen as between the parties in relation to the proposed sale of the Bullsbrook property, and now press for relief pursuant to s 126(1).
In these circumstances, the submissions made on behalf of the parties in regard to who might be afforded preference as 'plaintiff' was very finely balanced, tipping slightly in favour of Murray.
Secondly, while in no way determinative, I gave some weight to Robert and Ashley together holding the majority interest in the Bullsbrook property, being two undivided third shares.[101]
[101] Bombara v Bombara [111].
Thirdly, when regard was had to the history of litigation and dispute as between these parties, I considered it preferable that the auctioneer be engaged through solicitors and not by any party directly.[102] While this will result in additional cost, the court and the parties can have confidence that the solicitors, as officers of the court, will act with propriety in the conduct of the sale.[103]
[102] See submissions made on behalf of Murray at ts 56 (9 August 2021); defendant's submission filed 4 August 2021 par 18.
[103] See submissions made on behalf of Murray at ts 56 (9 August 2021), referring to Bombara v Bombara [102].
This does not mean that there was evidence before me to make any finding as to a lack of bona fides on the part of any party.
Counsel for Robert and Ashley drew the court's attention to the offers received by Robert described in his second affidavit.[104] Robert and Ashley did not seek to rely upon the same as being informative of the value of the Bullsbrook property.[105] Counsel for Robert and Ashley submitted that had the option presented by CPG Bullsbrook Pty Ltd been accepted, the two possible results were the completion of a sale for a purchase price of $2.5 million, alternatively a windfall of the option fee, being $125,000.[106] It was suggested that in circumstances where Murray had not explained why he refused to execute the option agreement, an inference may be drawn as to Murray's bona fides, and that his primary concern was not maximisation of financial return to the three registered proprietors.[107]
[104] Discussed at [62] - [71] above.
[105] ts 47 (9 August 2021).
[106] ts 47 - 48 (9 August 2021).
[107] ts 48 - 49, 50 (9 August 2021).
While I acknowledge that this submission was put on behalf of Robert and Ashley, I did not give it particular weight.
By his counterclaim, Murray did not seek to be given conduct of the sale, but moved that his solicitors should be appointed. I accepted counsel's submission that there was no reason to suppose that Murray's attitude to a sale by private treaty would make any difference to the way his solicitors, acting in the position as trustees, would conduct a sale by auction.[108] Further, the relief sought by Murray did not contemplate or propose sale by private treaty and indeed, contemplated sale by auction which had been consistently promoted by Murray throughout the course of the proceeding.[109] Also, Murray's position was not stated without explanation, as noted at [69] and [70] above.[110]
[108] ts 58 (9 August 2021).
[109] ts 59 (9 August 2021), 192 - 193 (2 September 2021).
[110] See also ts 193 - 194 (2 September 2021).
Fifthly, counsel for Murray submitted that the evidence revealed that the preference of Robert and Ashley was for the Bullsbrook property to be sold by private treaty, and submitted that there was a lack of commitment on their party to the property being sold by auction.
While I acknowledge that this submission was put on behalf of Murray, I did not give it particular weight. I consider this concern to be wholly answered by conduct of the sale being given to Robert and Ashley's solicitors who are officers of the court, and by the making of ancillary orders which include fixing an appropriate reserve.
Finally, I note that while the solicitors for Robert and Ashley shall have conduct, it is contemplated by the orders that all parties may have a say as to who is appointed, with a safeguard should there be a failure to agree. In the end, the order sought by all parties contemplates that the auctioneer is to be a licensed auctioneer agreed by the parties or in default of agreement as nominated by the President of the Real Estate Institute of Western Australia Incorporated and the auctioneer is to be instructed to implement such marketing programme for the Bullsbrook property as the auctioneer considers to be consistent with best industry practice, for the purpose of properly informing the market regarding the auction.
Reserve price
It was Robert and Ashley's position that the reserve price ought be fixed in the amount $2,125,000. Counsel for Robert and Ashley submitted that in the circumstances of this case, and on the evidence before the court, the court will necessarily be obliged to prefer one valuation over the other in setting the reserve price;[111] and submitted that the court ought to favour Mr Hemsley's higher valuation and ought fix the reserve price by reference to the same.[112] In this regard, counsel submitted:[113]
[I]f the lower figure is fixed and the property is sold at below market – the lower figure is not the appropriate figure – then the property is sold, and any prejudice to the plaintiffs is final and cannot be cured.
[111] ts 52 (9 August 2021).
[112] ts 52 (9 August 2021).
[113] ts 52 (9 August 2021).
While counsel acknowledged that sale by auction was sought on behalf of Robert and Ashley, it was submitted that they did so in anticipation of protection through the fixing of a reserve price. In this regard it was submitted that:[114]
If, on the other hand, the highest bid at the auction is somewhere between the two valuations, there's no final prejudice to the defendant or to the plaintiffs if that is the result because you can then have two further developments. The - one is there can be negotiation with the would be seller - would be purchaser. I'm sorry - at the auction, and that's something which is frequently undertaken at auctions. The matter – the property is passed in, it's sold shortly after auction, after negotiation with the relevant bidder or bidders.
The second alternative is if nothing is forthcoming from that, or there's nothing of that sort forthcoming, then the second alternative is that we return to court on an urgent basis - and this could be done very quickly, I'm sure your Honour would agree - to appraise the court that the auction held, there was an offer in between the two valuations – in other words, below the higher valuation - and seek a variation of the reserve price to enable the sale to proceed. So there is incurable prejudice, we say, to the plaintiffs if the wrong price, the lower price, is set.
There is no prejudice that cannot be cured to the defendant if the higher price is set, and there is a bid in the intervening range. If the bid is over the higher price, well, then that would be a good result, and nothing further flows from that.
[114] ts 52 - 53 (9 August 2021).
It was Murray's position that the reserve price ought be fixed in the amount $1.7 million. The selection of $1.7 million was explained by counsel by reference to Mr Cooper's evidence. Murray's position was that the selection of a reserve price at the lower end of the range opined by Mr Cooper would be appropriate and logical, as offers above the amount would not be precluded, and would not be set so high that there was a risk of the sale being stymied and require further court intervention.[115] Counsel submitted that the reserve price ought operate as a 'safety net to prevent a sale that is significantly under value'.[116]
[115] ts 60, 61 (9 August 2021).
[116] ts 60 (9 August 2021).
Counsel for Murray submitted that in fixing a reserve price, the court ought favour an approach that is least likely to interfere with the auction process and exclude genuine buyers, or require further court supervision.[117]
[117] ts 61 (9 August 2021).
In light of the evidence and submissions made, I consider it appropriate that the reserve be fixed at $1.7 million, and in so determining weighed the following in the balance.
First, I accept that this was not the occasion for the court to make a final finding as to the value of the Bullsbrook property. The court was tasked only with determining an appropriate reserve price in circumstances where the parties could not agree the same, and in doing so, was obliged to exercise discretion judicially.
The object of the legislation once an order is made is to achieve the current market price, not sale at the highest possible price. The market value of the property can be estimated, but will be determined by a willing buyer and a willing seller in an arm's length transaction, after proper marketing and where the parties had each acted knowledgeably, prudently and without compulsion.[118]
[118] The Australian Property Institute from the International Assets Valuation Standards Committee definition, as referenced by Mr Hemsley, exhibit P3, affidavit of R Hemsley sworn 28 June 2021, RH-1, pt 10.1 (Market Value Definition), and Mr Cooper, exhibit D4, affidavit of G R Cooper sworn 25 June 2021, GRC-01, pt 2.3 (Valuation).
Secondly, the valuers both noted that a lack of directly comparable and recent market evidence makes their respective valuations more subjective than usual.
Thirdly, I accepted the submission made on behalf of Murray that the difference between the midpoints of the two valuations, being $375,000 (or 19.3%), is explicable by the lack of directly comparable and recent market evidence and the particular subjectivity of these valuations.[119]
[119] Defendant's submissions filed 4 August 2021 par 30.
The valuation reports prepared by Mr Hemsley and Mr Cooper were well reasoned and appropriately detailed. The evidence of each expert revealed significant expertise and appropriate levels of caution in relation to valuing a property in circumstances where there were limited comparable sales. Neither Mr Hemsley nor Mr Cooper considered the others' valuation to be unacceptable or particularly surprising. I understood each expert to simply be more comfortable with and prefer their own estimate.[120]
[120] ts 110 (9 August 2021); ts 154 (2 September 2021).
The cross‑examination of the experts did not serve to diminish the reliability of either expert's opinion as to value, but in my view emphasised the subjectivity of the opinions expressed. I came to this view informed by the comments of McLure J in Duffy v Minister for Planning at [25]:
There is no hard and fast rule by which a valuer can draw the line that clearly separates sales that are comparable from those are not. It is a matter of degree. Some adjustment is always necessary but too much adjustment may render it unsafe to use a sale. Where the line to be drawn is a matter for the expert valuer to determine.
Fourthly, I considered there to be considerable force in submissions made on behalf of Murray that a reserve price set by reference to the lower of the two valuations will not prevent a sale at a higher price, whereas a higher reserve is at risk of being above market value, in which case it is likely to stymie a sale, result in duplication of processes and therefore increase costs, and make necessary further supervision by the court.[121]
[121] Defendant's submissions filed 4 August 2021 par 26; ts 60 - 61 (9 August 2021), 192, 195, 199 (2 September 2021).
Fifthly, I proceed on the basis that the reserve cannot be fixed arbitrarily, and I accept that there was no basis grounded in principle to 'split the difference' between the mid‑point of the valuations, being $375,000.[122]
[122] ts 195 (2 September 2021).
Sixthly, Mr Cooper's recommendation to the selection of a reserve price in light of the range of values he estimated for the Bullsbrook property was rational, within his experience and expertise, and went substantively unchallenged.
The market will determine the value of the Bullsbrook property at auction, the orders set out at sch A to these reasons when extracted will facilitate an orderly sale by auction in an informed market. The parties agreed that the orders ought stipulate that the auctioneer is to be instructed to implement such marketing programme for the Bullsbrook property as they considered to be consistent with best industry practise for the purpose of properly informing the market regarding the auction.[123] There is considerable protection in the same.
Other ancillary orders
[123] ts 198 (2 September 2021).
It is not contentious that the registered proprietors may bid for the Bullsbrook property at auction, and the ancillary orders contemplate the same.
In the context of a sale of a property in lieu of partition under s 126 of the Property Law Act, Sanderson M in Manifis v Mouzalidis [2021] WASC 454 at [5] observed:
In this case, the parties were agreed there should be a restriction on family members purchasing the property: see order 3(a). It is by no means unusual for one other of the parties to be interested in buying the property. That creates difficulty because both parties will be aware of the reserve price. In other words, it may not be possible to obtain a better price than the reserve. There is no mechanism for overcoming that problem. The only option is to ensure the property is marketed in line with the recommendations of the real estate agent. If no better offer is received beyond the reserve price and one of the parties has offered the reserve price then the property will be sold accordingly. But there is no warrant for restricting the right of any of the co-owners or their associates from purchasing the property. Section 126 does not contain any such restriction and it would take special circumstances for the court to order there be such a restraint in the absence of special circumstances.
The evidence before me did not reveal any special circumstances that would warrant the registered proprietors being denied an opportunity to bid at auction. Nor did the interest expressed by Murray in purchasing the Bullsbrook property inform the choice of party to have conduct of the sale, or an appropriate reserve.
Conclusion and orders
For these reasons, it is appropriate that the solicitors for Robert and Ashley have conduct of the sale, and that $1.7 million be fixed as the reserve price, and I propose to make orders in the form set out at sch A to these reasons.
As noted above, during the hearing of 9 August 2021, I granted leave to Murray nunc pro tunc that he, by the further re‑amended defence and counterclaim filed on 3 August 2021, withdraw admissions previously made in his re‑amended defence and counterclaim filed on 23 February 2021. Proposed order 1 reflects this ruling.
It is also appropriate to record here that during his closing submissions, counsel on behalf of Murray suggested that it would be appropriate for access to these reasons to be restricted to the parties and to officers of the court, and not otherwise published pending sale of the Bullsbrook property by auction, so as to not put into the public domain the reserve price.[124] The request was not opposed, and I consider it appropriate to make orders 15 and 16 of sch A to facilitate the same.
[124] ts 207 ‑ 208 (2 September 2021).
I will hear the parties as to costs.
Sch A - proposed orders
Leave to amend
1.The defendant is granted leave nunc pro tunc, to withdraw admissions previously made in his re-amended defence and counterclaim filed on 23 February 2021, so as to plead pars 3(a) and 5 of the further re-amended defence and counterclaim filed on 3 August 2021.
Bullsbrook property to be sold
2.The property known as 848 Cooper Road, Bullsbrook (being the whole of the land comprised in certificate of title volume 1135 folio 622) (Bullsbrook property) will be sold.
Conduct of sale
3.The Bullsbrook property be sold by public auction free from the encumbrances (if any) of such of the encumbrancers as shall consent to the sale and subject to the encumbrances of such of them as shall not consent.
4.The Bullsbrook property be sold subject to the 2018 Joint Form of General Conditions for Sale of Property as published by the Law Society of WA and the Real Estate Institute of Western Australia's General Conditions for the Sale of Land.
5.The reserve price for the Bullsbrook property to be $1.7 million.
6.The solicitors for the plaintiffs, Corinne Griffin & Co, have the conduct of the sale and be authorised to instruct an auctioneer for that purpose, such auctioneer to be a licensed auctioneer agreed by the parties or in default of agreement as nominated by the President of the Real Estate Institute of Western Australia Incorporated and the auctioneer is to be instructed to implement such marketing programme for the Bullsbrook property as they considered to be consistent with best industry practise for the purpose of properly informing the market regarding the auction.
7.The solicitors for the plaintiffs do report to the parties in writing on a weekly basis summarising the progress of the sale.
8.The auctioneer's remuneration be fixed in accordance with the scale of charges of the Real Estate Institute of Western Australia Incorporated.
9.Each party have liberty to bid at the sale, and in the event of the Bullsbrook property being sold to a party, that party need not pay a deposit, and shall be at liberty, in making payment of the purchase price, to set off against the purchase price an amount equal to one third of the purchase price (net of any commission, fees and expenses in respect of the sale).
10.The net proceeds of sale, after payment of what shall be due to any encumbrancer or encumbrancers according to their priorities and of all other proper costs, charges and expenses of the sale, be paid into court to the credit of this action to abide further order.
11.At the time of payment into court an affidavit by the auctioneer to be filed exhibiting a statement certifying the result of the sale and the expenses incurred therewith and an affidavit be filed by the plaintiffs' solicitors exhibiting a schedule of their charges in relation to the conduct of the sale.
12.The plaintiffs' solicitors be entitled to deduct from the proceeds of sale (prior to payment into court of the net proceeds of sale) an amount representing their reasonable charges in relation to their conduct of the sale.
13.The defendant be served with this order (by means of service upon his solicitors) within 10 business days from the date hereof and that he deliver up possession of the Bullsbrook property to the plaintiffs' solicitors within 7 days after service of this order upon them.
Liberty to apply
14.The parties have liberty to apply generally on 48 hours' notice.
Restriction
15.Until further order, by reason of the commercial sensitivity of the information contained therein, access to these orders and to the reasons for decision delivered on 10 March 2023 be restricted pursuant to the Rules of the Supreme Court 1971 (WA) Order 67B r 5(1)(b), to be accessed only by the parties, their respective representatives and counsel, the auctioneer instructed under order 6 of these orders, and the court.
16.Within 5 business days of completion of settlement of the sale of the Bullsbrook property, the parties are to inform the court of the same and request that order 15 of these orders be vacated.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LP
Associate to the Honourable Justice Strk
10 MARCH 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GRAY -v- GRAY [2023] WASC 70 (S)
CORAM: STRK J
HEARD: 20 MARCH 2023
DELIVERED : 17 APRIL 2023
FILE NO/S: CIV 1932 of 2020
BETWEEN: ROBERT BRIAN GRAY
First Plaintiff
ASHLEY ROBERT GRAY
Second Plaintiff
AND
MURRAY EDWARD GRAY
Defendant
Catchwords:
Practice and procedure - Costs - Sale by auction pursuant to s 126 of the Property Law Act 1969 (WA) - Which party to have conduct of sale - Setting of an appropriate reserve price for auction - No party wholly successful - Turns on own facts
Legislation:
Property Law Act 1969 (WA) s 126
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Result:
Costs orders made
Category: B
Representation:
Counsel:
| First Plaintiff | : | P R MacMillan |
| Second Plaintiff | : | P R MacMillan |
| Defendant | : | S M Standing |
Solicitors:
| First Plaintiff | : | Corinne Griffin & Co |
| Second Plaintiff | : | Corinne Griffin & Co |
| Defendant | : | Lynn & Brown Lawyers |
Cases referred to in decision:
Corporate Systems Publishing Pty Ltd v Lingard [2009] WASCA 158 (S)
Gray v Gray [2023] WASC 70
Great Southern Managers Australia Ltd v Thackray [2010] WASC 138 (S)
Hughes v Western Australian Cricket Association (1986) ATPR 40‑748
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Keet v Ward [2011] WASCA 139
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 516
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164
Ohn v Walton (1995) 36 NSWLR 77
Roberts v Rodier [2006] NSWSC 1084
Spotless Group v Premier Building and Consulting and North Suburban Properties [2008] VSCA 115
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388
Todrell Pty Ltd v Finch [2008] 2 Qd R 95; [2007] QSC 386
Wentworth v Attorney‑General (NSW) [1984] HCA 70; (1984) 154 CLR 518
Woodley v Woodley [2017] WASC 94 (S)
Table of Contents
Introduction
Applicable principles
Robert and Ashley's position
Murray's position
Disposition
Summary judgment application
All other costs of the proceeding
Conclusion and orders
STRK J:
Introduction
The parties to this proceeding share the same surname. In these reasons, I refer to the parties by their first name. I do so for convenience and to avoid confusion. No disrespect is intended.
This proceeding arose out of a dispute between the parties as to the proposed sale of property in Bullsbrook, which property was transferred to them on 22 November 2017 from their late father's estate. By the time this proceeding was listed for trial, all parties accepted that the Bullsbrook property ought be sold by auction. The dispute between them had narrowed to who ought control the sale and what reserve price ought be fixed. Save as to these matters, by the conclusion of the trial the form of order was largely agreed.
For reasons delivered on 10 March 2023, I concluded that it was appropriate that the solicitors for Robert and Ashley have conduct of the sale (as was promoted by Robert and Ashley), and that $1.7 million be fixed as the reserve price (as was promoted by Murray).[125] I do not intend to repeat what was said in those reasons, access to which remains restricted pending the sale of the Bullsbrook property. These reasons should be read with and as if they incorporate the earlier reasons, and it is appropriate that access to these reasons be restricted pending the sale of the Bullsbrook property.
[125] Gray v Gray [2023] WASC 70 [4].
I indicated in the substantive reasons that I would hear the parties as to costs.[126] As the parties were unable through conferral to agree an appropriate costs order, I heard the parties with respect to costs on 20 March 2023. Minutes of proposed orders and written outlines of submissions as to costs were filed in advance of the costs hearing on behalf of Robert and Ashley and on behalf of Murray, respectively.
[126] Gray v Gray [4].
These reasons concern the costs of the proceeding.
Applicable principles
Where costs should fall is at the discretion of the court.[127] The discretion to order costs under the Supreme Court Act 1935 (WA) s 37 and the Rules of the Supreme Court 1971 (WA) (RSC) O 66 r 1 is very wide.[128] The only restrictions are those provided elsewhere in the Supreme Court Act and the RSC, or in any other Act; and the fact that the discretion must be exercised judicially, in accordance with established principles and factors directly connected with the litigation.[129] The discretion must be exercised so as to achieve what is fair and just between the parties according to the circumstances of the particular case.[130]
[127] Supreme Court Act 1935 (WA) s 37.
[128] LexisNexis, Civil Procedure Western Australia, vol 1 (185-12-19) at [66.1.2], citing Wentworth v Attorney‑General (NSW) [1984] HCA 70; (1984) 154 CLR 518, 528; Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 516 [39].
[129] LexisNexis, Civil Procedure Western Australia, vol 1 (185-12-19) at [66.1.2], citing Naidoo v Williamson [39], [42]; Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [48] ‑ [50].
[130] LexisNexis, Civil Procedure Western Australia, vol 1 (185-12-19) at [66.1.2], citing Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 558.
It is well established that an order for the payment of costs by one party is compensatory in nature; it is not for the purpose of punishment. Costs generally follow the event because such an order is intended, at least to the extent that the costs incurred were not unreasonable or unreasonably incurred, as compensation (and vindication) for the successful action or application.[131]
[131] LexisNexis, Civil Procedure Western Australia, vol 1 (185-12-19) at [66.1.2], citing Latoudis v Casey; Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [30] ‑ [31]; Ohn v Walton (1995) 36 NSWLR 77.
While a successful party will ordinarily receive his or her costs, where the successful party has succeeded only upon a portion of his or her claim, it may be reasonable in the circumstances to order that the successful party bear the expense of litigating that portion upon which he or she had failed.[132] Where a party though generally successful has, by the introduction of some issue or issues on which that party has failed, increased the costs the court may order such party to pay the costs of such issue or issues.[133]
[132] James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 [33], citing Hughes v Western Australian Cricket Association (1986) ATPR 40‑748.
[133] RSC O 66 r 1(3).
Under s 37(1) of the Supreme Court Act, the court or a judge has full power to determine by whom or out of what estate, fund, or property, and to what extent, costs are paid. Further, RSC O 66 r 4 relevantly provides:
(1)Where property is the subject of any action or matter, or where any question arising therein will affect any right or claim to property, the Court may make an order that the costs of any party may be recovered out of the property with or without recourse against any other party: Provided that no such order shall be made unless the Court is satisfied that the party seeking the order had a genuine interest to protect, or that it was reasonable in the circumstances that he should appear.
(2)Where the Court orders payment of costs out of any property it shall direct out of what portion or portions the costs shall be paid.
Order 66 r 4 does not compel the court to make an order for costs out of property which is the subject of an action.[134] The terms of that rule will ordinarily require that the court consider whether to make an order after it has been determined whether the party has an interest in a fund or in particular property, and whether it was reasonable in all the circumstances for the party to take the position it did in the relevant proceedings.[135]
[134] LexisNexis, Civil Procedure Western Australia vol 1 (196-08-22) at [66.4.1], with reference to Corporate Systems Publishing Pty Ltd v Lingard [2009] WASCA 158 (S) [154]. See also Woodley v Woodley [2017] WASC 94 (S) [72].
[135] LexisNexis, Civil Procedure Western Australia vol 1 (196-08-22) at [66.4.1], with reference to Great Southern Managers Australia Ltd v Thackray [2010] WASC 138 (S) [5], and Woodley v Woodley (S) [73].
I adopted and applied these principles in determining the question of costs.
Robert and Ashley's position
Robert and Ashley sought orders in the following terms.
1.There be no Order as to costs with respect to the issue of the reserve price.
2.Save for the costs referred to in [1] of these Orders the Defendant pay the Plaintiffs' costs of the action and counterclaim to be paid from the Defendant's share of the net proceeds of the sale of the Bullsbrook property.
Robert and Ashley maintained that they were substantially successful in the proceeding, and as the successful parties, they ought recover their costs. They did not press for recovery of their costs associated with the contentious issue of reserve price, which had been determined in Murray's favour, as was reflected in their proposed first order.
I understood that Robert and Ashley were critical of Murray having pursued a counterclaim in the action. It was submitted that it had been open to Murray to advance a position contrary to that of Robert and Ashley as to the conduct of the sale and the reserved price, without pursuing a counterclaim pursuant to s 126(2) of the Property Law Act 1969 (WA).
While Robert and Ashley acknowledged that where a plaintiff or a defendant each succeed on a cause of action, each should be allowed the costs of the cause of action on which they succeeded, it was submitted that this ought not be the case where the cause of action was admitted and the second cause of action was pleaded unnecessarily.[136] In this regard, they referred to Murray having admitted that Robert and Ashley were entitled to an order for sale of the Bullsbrook property pursuant to s 126(1) of the Property Law Act in the re‑amended defence and counterclaim that was filed on 23 February 2021. (I note that Murray was granted leave nunc pro tunc to withdraw admissions made in his re‑amended defence and counterclaim filed on 23 February 2021, so as to plead pars 3(a) and 5 of the further re‑amended defence and counterclaim filed on 3 August 2021).[137]
[136] Plaintiffs' submissions par 6.
[137] Gray v Gray [28].
It was further submitted on behalf of Robert and Ashley that they were substantially successful as to their cause of action. That is, they obtained an order for sale, and succeeded as to the contentious issue of who ought have conduct of the sale. They contend that they should have their costs of the action including the costs of the summary judgment application (which were ordered to be in in the cause), subject to the contentious issue of the reserve price.[138]
[138] Plaintiffs' submissions pars 7 - 8; ts 224 - 225 (20 March 2023).
As to the reserve price, counsel noted that a pragmatic approach with costs might be to order recovery of a proportion of costs in favour of one of the parties, as opposed to making costs orders on an issue by issue basis.[139] Counsel also noted that where appropriate, an issue‑based approach may be applied. Counsel submitted that this does not mean that the party who has failed on an issue should, in accordance with the general costs rule, be ordered to pay the costs of his or her opponent on that issue or be deprived of his or her own costs in respect of it.[140] The question is whether the party which is ultimately unsuccessful on the relevant issue increased the duration of the trial at an opponent's expense, and that fairness requires that the unsuccessful party be deprived of its costs, or pay its opponent's costs.[141]
[139] Plaintiffs' submissions par 9, citing Roberts v Rodier [2006] NSWSC 1084 [33].
[140] Plaintiffs' submissions par 10.
[141] Plaintiffs' submissions par 11, citing Todrell Pty Ltd v Finch [2008] 2 Qd R 95; [2007] QSC 386 [24] - [26].
On behalf of Robert and Ashley, it was submitted that in this matter, the plaintiffs did not put Murray to the cost of proving an issue on which the justice of the case was against them. Rather, the issue as to the reserve price was agitated by both parties. It was submitted that the issue was, in effect, whether the subjectivity involved in assessing the value of the land was such as to extend to the difference between the two valuations, being the sum of $550,000.[142]
[142] Plaintiffs' submissions par 12.
Counsel further submitted that it could not be said that Robert and Ashley ventilated the issue of valuation improperly or unreasonably; and it was open to the court to prefer the valuation opinion tendered for Robert and Ashley or that tendered for Murray, and the court preferred neither.[143]
[143] Plaintiffs' submissions par 13.
For the court to make a finding as to the range of subjectivity in valuation, counsel submitted that it was necessary that the evidence as to valuation be led, and in all the circumstances, the appropriate costs order would be that there be no order as to costs with respect to the reserve price issue.[144]
[144] Plaintiffs' submissions pars 13 - 14.
Murray's position
On behalf of Murray, it was submitted that the court ought make orders as to costs in the following terms.
1.Subject to orders 2, 3 and 4 below, the plaintiffs do pay three quarters of the defendant's costs of the claim and the counterclaim including reserved costs and costs in the cause therein, to be taxed if not agreed, and to be paid out of the plaintiffs' share of the proceeds of sale of the Bullsbrook property.
2.The defendant be entitled to recover on taxation all of his disbursements in respect of the reserve price issue (including expert witness fees), save insofar as such disbursements were unreasonably incurred.
3.The plaintiffs do pay all of the defendant's taxed costs in respect of the plaintiffs' summary judgment application.
4.The plaintiffs do pay all of the defendant's taxed costs of his written submissions in relation to costs and of today.
In support of proposed order 1, the following matters were raised on behalf of Murray.[145]
[145] Defendant's submissions par 2.
First, each party was, in effect, a plaintiff seeking orders pursuant to s 126 of the Property Law Act (Murray's counterclaim being a proceeding in its own right).[146]
[146] Defendant's submissions par 2(a).
Secondly, by the time this matter reached trial, only two issues were in dispute, being who ought have control of the sale and what amount ought be fixed as the reserve price.[147]
[147] Defendant's submissions par 2(b).
Thirdly, each party had success with respect to one issue.[148]
[148] Defendant's submissions par 2(c).
Fourthly, despite this, the vast majority of the evidence, submissions and trial time was taken up with the reserve price issue. Indeed, the trial was adjourned on 31 March 2021 only because of issues regarding the valuation evidence, which related only to the reserve price issue. Absent the reserve price issue, the case would in all likelihood have concluded on 31 March 2021.[149]
[149] Defendant's submissions par 2(d).
Fifthly, as a consequence of the above, there can be no doubt that it was the reserve price issue that occasioned most of the costs in this matter.[150]
[150] Defendant's submissions par 2(e).
Sixthly, the RSC O 66 r 2(a) provides that, in the absence of any special order, where a plaintiff and defendant each succeed on a cause of action, costs shall be allowed to each party on the cause of action upon which they succeeded.[151]
[151] Defendant's submissions par 2(f).
Seventhly, it may however, not be appropriate to make an order under the RSC O 66 r 2(a) where (inter alia) there is in substance one contest (that is, where the causes of action arise from the one course of dealings or transaction or set of facts).[152]
[152] Defendant's submissions par 2(g), citing Keet v Ward [2011] WASCA 139 at [24] and LexisNexis, Civil Procedure Western Australia, vol 1 (185-12-19) at [66.2.1].
Eighthly, in such cases, and taking into account modern case management principles, a pragmatic approach is to order payment of a proportion of costs in favour of one of the parties (or if the court finds that the issues are evenly balanced, make no order as to costs).[153]
[153] Defendant's submissions par 2(h), citing Spotless Group v Premier Building and Consulting and North Suburban Properties [2008] VSCA 115 [13] - [18] and LexisNexis, Civil Procedure Western Australia, vol 1 (185-12-19) at [66.2.2] and [66.1.10].
Ninthly, an order for payment of a proportion of costs in favour of one party avoids the practical difficulties and complications that might arise in a taxation if the taxing officer had to apportion costs to particular issues.[154]
[154] Defendant's submissions par 2(i), citing Spotless Group v Premier Building and Consulting and North Suburban Properties at [15], [16].
Tenthly, it was submitted that in this case, the causes of action pursued by Robert and Ashley on the one hand and Murray on the other were, in effect, the same. However, the issues were not at all finely balanced, as Murray was successful on the issue that occupied most of the case. That being so, it was submitted that the court should make a proportionate costs order only in favour of Murray, such order being that he recovers 75% of his costs (subject to proposed orders 2 and 3 of Murray's minute of proposed orders).[155]
[155] Defendant's submissions par 2(j).
It was further submitted that there was no basis for Robert and Ashley to contend that they had been substantively successful. They had abandoned their initial claim (as had been prosecuted in the summary judgment application), and they failed in the most time consuming of the two remaining issues.[156]
[156] ts 229 (20 March 2023).
As to proposed order 2, counsel submitted that such an order was primarily directed at the costs incurred by Murray in retaining an expert witness to provide evidence in relation to the reserve price issue. Given that Murray was successful in relation to the reserve price issue, counsel submitted that it is appropriate that Murray recover all of his reasonably incurred disbursements relating to that issue.[157]
[157] Defendant's submissions par 3.
As to proposed order 3, counsel submitted that such an order was appropriate because not only were Robert and Ashley unsuccessful on their summary judgment application, but they later entirely abandoned the claim in respect of which summary judgment had been sought, namely, that there should be an order for sale by execution of a particular offer to purchase.[158]
[158] Defendant's submissions par 4, citing Gray v Gray [12].
Disposition
Summary judgment application
At [5] to [24] of the substantive reasons, I summarised the procedural history of this proceeding, and at [25] to [36] I described the cases advanced, the pleadings and concessions made. As was noted in the substantive reasons, by a chamber summons filed on 16 October 2020, Robert and Ashley applied for summary judgment in this proceeding. They sought orders that the Bullsbrook property be sold free of encumbrances; that Robert be authorised on behalf of Murray to execute the Cooper Road Holdings offer that had been executed by the proposed purchaser and by Robert and Ashley; and that Murray pay the costs of the application and the action.[159] The application for summary judgment was dismissed by the learned Master on 18 December 2020, and it was ordered that the costs of the application, including reserved costs, be in the cause.[160]
[159] Gray v Gray [4].
[160] Gray v Gray [12]; ts 20 (18 December 2020).
An order that the costs of an application be 'in the cause' means that the party ultimately successful in the action will recover them.[161] However, in this case, neither party was wholly successful. Further, Robert and Ashley's case for summary judgment was not the same case as was prosecuted at the substantive hearing. Shortly after the determination of the summary judgment application, Robert and Ashley abandoned their original claim and pleaded that the Bullsbrook property ought be sold by auction under s 126(1) of the Property Law Act on the terms pleaded in a document titled 're‑amended statement of claim' filed on 10 February 2021. Robert and Ashley were not successful in the same cause as had grounded the application for summary judgment. Indeed, they abandoned that claim.
[161] LexisNexis, Civil Procedure Western Australia, vol 1 (196-08-22) at [66.10.5].
In these circumstances, and having given due regard to the ultimate disposition of the proceeding, I informed the parties at the costs hearing on 20 March 2023 that I considered it was fair and just between the parties to order Robert and Ashley to pay Murray's costs of summary judgment application filed on 16 October 2020, to be taxed if not agreed, such costs to be paid out of Robert and Ashley's share of the proceeds of sale of the Bullsbrook property.[162]
[162] ts 233 (20 March 2023).
I also indicated that it would be just and fair for Robert and Ashley to pay Murray's costs thrown away by reason of the amendment to their case pleaded in a document titled 're‑amended statement of claim' filed on 10 February 2021, pursuant to the RSC O 66 r 3(1),[163] which I understand was reflected in an order made by the learned Master on 11 February 2021 by the consent of the parties.
All other costs of the proceeding
[163] ts 225, 233 (20 March 2023).
As to all other costs of and incidental to the proceeding, I consider that it is just and fair in all of the circumstances for the parties to recover their respective reasonable costs on a party/party basis, such costs to be paid out of the proceeds of sale of the Bullsbrook property, to be taxed if not agreed. In so determining, I gave particular weight to the following.
First, as was noted at [111] of the substantive reasons, I was satisfied that together Robert and Ashley were entitled to avail themselves of relief under s 126(1) of the Property Law Act, and I was also satisfied that Murray was an interested party for the purposes of s 126(2) of the Property Law Act. All parties had standing to press for relief in the form of sale under s 126.
Secondly, in the end, I was satisfied that an order should be made for the sale of the Bullsbrook property as was promoted by all parties at trial. The parties had established their respective entitlement to relief in the form of sale under s 126, and the court saw no good reason to the contrary.[164]
[164] Gray v Gray [11].
Thirdly, by the time this proceeding was listed for trial, all parties accepted that the Bullsbrook property ought be sold by auction, and the dispute between them had narrowed to who ought control the sale and what reserve ought be fixed. In the end, it was determined that the solicitors for Robert and Ashley ought have conduct of the sale (as was promoted by Robert and Ashley), and that $1.7 million be fixed as the reserve price (as was promoted by Murray).[165] All parties had an interest in the Bullsbrook property, no party was wholly successful, and the decision on the two remaining points was finely balanced.
[165] Gray v Gray [4].
Fourthly, I do not share Robert and Ashley's view that it was not necessary nor appropriate for Murray to have pursued his counterclaim in the action.
The claim initially prosecuted by Robert and Ashley in this proceeding informed Murray's early pleaded defence and counterclaim. Murray had denied that Robert and Ashley were entitled to an order that they be authorised on behalf of Murray to execute the Cooper Road Holdings offer, and in his defence filed on 9 October 2020 Murray pleaded that there were 'good reasons' as stipulated in s 126(1) of the Property Law Act to refuse an order of sale of the Bullsbrook property.[166] As was noted at [7] of the substantive reasons, Murray objected to the 'onerous' extended due diligence period in the Cooper Road Holdings offer, which he pleaded left the parties vulnerable to the possibility of the sale falling through until such time had lapsed.
[166] Gray v Gray [6] and [7].
While Robert and Ashley first approached the court seeking relief in relation to the stalemate that had arisen as between the parties in relation to the proposed sale of the Bullsbrook property, Murray was the first of the parties to seek an order for sale by auction pursuant to s 126(2) of the Property Law Act by his counterclaim.
Murray sought that the Bullsbrook property be sold, but he was not entitled to seek the same pursuant to the Property Law Act s 126(1), as Murray was not interested to the extent of a half share or upwards in the Bullsbrook property. Procedurally, it was appropriate for Murray to press for sale by counterclaim pursuant to s 126(2), and the manner in which Murray pleaded his claim does not ground an adverse cost consequence.
Fifthly, I am not persuaded that it would be conducive to a fair and just outcome to make adjustments as between the parties based on which of the two issues that required determination at trial occupied more court time. Each party was successful in securing the sale of the Bullsbrook property by public auction (which was not in the end contentious), and each succeeded in one of the two issues determined at trial. In these circumstances, it is fair and just to allow all parties to recover their reasonable costs of and incidental to this proceeding on a party/party basis, such costs to be paid out of the proceeds of sale of the Bullsbrook property, to be taxed if not agreed.
Sixthly, I proceeded to fix the reserve price after having had regard to all of the valuation evidence before me. The reserve could not be fixed arbitrarily and I had the benefit of two well reasoned and appropriately detailed valuations, which by reason of there being a lack of directly comparable and recent market evidence were more subjective than usual. I consider it fair and just in all of the circumstances that all parties be entitled to recover their respective reasonable disbursements (including expert witness fees).
Conclusion and orders
For these reasons, I consider it fair and just to make orders in the following terms:
1.The first and second plaintiff shall recover on a party/party basis their reasonable costs of this proceeding (including disbursements), such costs to be paid out of the proceeds of sale of the property known as 848 Cooper Road, Bullsbrook, being the whole of the land comprised in certificate of title volume 1135 folio 622 (the Bullsbrook property), but excluding:
(a)the first and second plaintiffs' costs of the summary judgment application filed on 16 October 2020; and
(b)the costs of the first and second plaintiffs' pleadings filed prior to 10 February 2021.
2.The defendant shall recover on a party/party basis his reasonable costs of this proceeding (including disbursements), such costs to be paid out of the proceeds of sale of the Bullsbrook property, but excluding:
(a)the defendant's costs of the summary judgment application filed on 16 October 2020; and
(b)the defendant's costs of and occasioned by the amendment of the first and second plaintiffs' statement of claim prior to 10 February 2021, including costs thrown away.
3.The first and second plaintiffs must pay the defendant's costs of the summary judgment application filed on 16 October 2020, to be taxed if not agreed, and such costs to be paid out of the first and second plaintiffs' share of the proceeds of sale of the Bullsbrook property.
4.The first and second plaintiffs must pay the defendant's costs of and occasioned by the amendment of the first and second plaintiffs' statement of claim prior to 10 February 2021 including costs thrown away, to be taxed if not agreed, and such costs to be paid out of the first and second plaintiffs' share of the proceeds of sale of the Bullsbrook property
Finally, for the avoidance of doubt, I note that nothing in these reasons is intended to disturb the orders made in favour of Murray on 2 August 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RW
Associate to the Honourable Justice Strk
17 APRIL 2023
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