Haeberle v Gapes
[2003] VSC 249
•4 June 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 1380 of 2002
| CATHERINE HELEN HAEBERLE & RONALD LESTER HAEBERLE | Plaintiffs |
| v. | |
| JOY DENISE GAPES | Defendant |
---
JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2003 | |
DATE OF JUDGMENT: | 4 June 2003 | |
CASE MAY BE CITED AS: | Haeberle & Ano v Gapes | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 249 | |
---
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr B. Fitzgerald | Tait Cashman Taylor |
| For the Defendant | Mr G. Baker | McCluskys |
HIS HONOUR:
This is a matter which was due to be heard on the May 2003 Warrnambool Circuit but by reason of the pressure of business on that Circuit was unable to be accommodated and accordingly it has been heard here in Melbourne.
The proceeding is an application that the property at 25 Cramer Street, Warrnambool be ordered to be sold, it being part of deceased estate.
The Plaintiffs are the executors of the will of Veronica Mary Guy who died on 5th June 2001. She left a will dated 3rd February 2001. Probate of the will was granted to the plaintiffs on 31st October 2001. By her will the deceased devised the property at 25 Cramer Street, Warrnambool, to each of her three children in equal one-third parts, namely, to the first plaintiff, Mrs H.C. Haeberle, to the defendant, Mrs D.J. Gapes and to Mr B.J. Guy.
The plaintiffs, the executors of the will, wish to sell the subject property of 25 Cramer Street, Warrnambool, which constitutes the vast majority of the estate. The third child, Mr B.J. Guy, consents to the property being sold. However, the defendant, Mrs D.J. Gapes, has not consented to the property being sold. Accordingly, by summons on the originating motion filed the 14 January 2003, the plaintiffs seek an order from this Court pursuant to Rule 54.02 for sale of the property with directions pursuant to Rule 54.07 as to its conduct and any necessary consequential orders.
Filed on behalf of the plaintiffs are a number of affidavits, with exhibits: of the first plaintiff, Mrs Haeberle, of 22 November 2002, of Mr Ronald Haeberle, the second plaintiff of 22 November 2002, and of Mr Brian Guy of 29 November 2002 (each of those latter affidavits dated on its face, 14 November, but plainly sworn on the dates I have stated), and of Mr G.A. Ezzy, solicitor for the plaintiffs, of Warrnambool, sworn 2 June 2003. The defendant, Mrs D.G. Gapes, has sworn and filed an affidavit of 15th April 2003.
The unhappy circumstances of the apparent difficulty between Mrs Gapes and the other parties and children and the circumstances of the attempted auction sale of the subject property on 8 December 2001 are set forth on the one hand in paragraphs 8 to 14 of Mrs Haeberle's affidavit and on the other hand in paragraphs 12 to 21 of Mrs Gapes' affidavit. Mrs Haeberle's affidavit in those relevant respects is confirmed by the affidavits of Mr Haeberle and of Mr Guy. It is unnecessary for purposes of this proceeding and generally undesirable that I review those competing versions. I have not seen the witnesses and am acting on the papers. It is plain, however, that at that time, Mrs Gapes objected to the sale, she saying that she was not properly included in its decision and development and on the other side, the executors, the plaintiffs, were left, they considered, with no responsible avenue than to take these proceedings to seek to advance their obligations as executors, included in which was the realisation of the value of the main asset of the estate.
The critical circumstance was this. The deceased's will did not invest her executors with any power of sale. No power of sale was expressly created by the will nor could any power properly be implied in it: Pagels v. MacDonald[1].
[1](1936) 54 C.L.R. 519.
As a consequence, the plaintiffs sought Mrs Gapes' consent to sell which consent was not forthcoming as is evidenced by Mrs Haeberle's affidavit at paragraph 15 and following. As there was no power of sale in the will and a beneficiary was apparently unwilling to agree to a sale, the only effective step forward was an in specie distribution of the asset, that is to the say, to the three beneficiaries as tenants in common. However, according to Mrs Haeberle's affidavit at paragraph 16 and following, the defendant declined to sign a transfer.
Faced with an apparent impasse, the executors have sought relief from this court as contemplated by Rule 54.02. That occurred initially on 2 December 2002. Irrelevant, as I shall come in a moment, was a later development, namely, that on 29 April 2003, out of the Ballarat Registry of the Court the defendant, Mrs Gapes, sought further provision to be made for her from the estate pursuant to the provisions of Part 4 Administration and Probate Act 1958. That matter has not been determined and is likely to be determined at the October circuit of this court at Warrnambool.
Given the commencement of the Part 4 application, the plaintiffs acknowledge that any distribution of the proceeds of any sale would be inappropriate. However, they seek to bring some precision to the situation by the ascertainment of the value of the property by sale on the basis that the proceeds will be held in trust and not distributed until a conclusion of all the proceedings including the Part 4 matter in October at the circuit at Warrnambool.
Mr Fitzgerald, who appeared for the plaintiffs, by dint of assiduous research, relies in particular upon the decision Templeton v. The Leviathan Pty Ltd[2] (Knox CJ and Starke J, Higgins J dissenting). That decision was as to Order 55 Rule 3 of the 1916 rules which is, for all relevant purposes, the same as the present Rule 54.02, which has been relied upon by the plaintiffs in coming before this Court.
In Templeton at p.55, Knox CJ stated:
"The jurisdiction of a judge of the Supreme Court of Victoria in matters brought before him by originating summons is defined by Order LV Rule 3 of the Rules of the Supreme Court and includes jurisdiction to direct trustees to do or abstain from doing any particular act in their character as such trustees, to approve of any sale or other transaction, and to determine any question arising in the administration of the trust."
To like end, Starke J at 74 stated:
"So far as a contract is authorised by the will, the order is protective; so far as it is beyond the authority of the will, the order - despite any error of the Court - is an authority to the trustees, or at least the determination of their powers and duties as trustees under the will, which parties bound by the order cannot controvert."
[2](1921) 30 C.L.R. 34.
I consider that there is an amplitude of power under Rule 54.02 to make the order sought. I am unpersuaded by Mr Baker's submissions, which were otherwise most helpful, that Rule 54.02 cannot go beyond the power contained in the will which, in this case, as I have said, is lacking. He relied upon in Re Hird and Hickey's Contract[3] which is entirely supportive of his argument as to the power lacking in the will but does not meet Mr Fitzgerald's point that the power is provided by the amplitude of the provisions of Rule 54.02.
[3](1917) V.L.R. 717.
The essential submission on behalf of the defendant was that the proper course would have been not to take these proceedings but rather to take partition proceedings as contemplated by Part 4 Property Law Act 1958 as to which different considerations apply than to today's proceedings.
Although I am satisfied that the power exists as contended by
Mr Fitzgerald, I do not consider in the circumstances of this case that I ought to exercise it and I propose to refuse to make the orders sought on the summons. There is a continuing undertaking by the executors that they would not distribute the proceeds of any sale but I think that is not sufficient to meet the potential of the situation. It is plain that there is alienation between the parties and the children. I have not seen them before me giving evidence. There is plainly more to the background of this than is presently on this limited application available to me to consider. The Part 4 proceedings will need to be determined and I consider in all the circumstances it is desirable that all the matters are determined at the one time or at least contiguously so that all the relevant considerations can be assessed by the Judge and so the justice of the situation can safely and reliably be met.
I am, therefore, unpersuaded to order that the family home be sold until all the matters are finally considered by the Court at the appropriate time and the parties have had a chance to have the relevant matters, including the Part 4 matter, heard and concluded.
For those reasons, I consider it is not just or appropriate to exercise the power which I am satisfied I have under Rule 54.02 and I, therefore, refuse the relief sought by the summons
(Discussion ensued.)
As to costs, I consider the costs should be reserved. I agree with Mr Fitzgerald that the plaintiffs have responsibly sought to resolve the impasse that they felt they were in and that in the proper exercise of their function as executors they have come to the court for its empowerment. On the other hand, I do not know the full history of the matter as between the parties and I think it is prudent to wait upon the full history being articulated before a final order as to costs is made.
If I concluded that the defendant's conduct including in relation to this proceeding was unreasonable or malicious I would certainly orders costs against her. However, that should be judged in the matrix of all the facts as known at the conclusion of these proceedings and I think in the circumstances it is premature to make any order for costs other than to reserve them.
Mr Fitzgerald, do you want to say any more about costs than that?
MR FITZGERALD: I would seek to attempt to persuade Your Honour today that costs should flow in favour of the plaintiffs for the reasons that I attempted to articulate in the submissions having - - -
HIS HONOUR: If I was sitting at Warrnambool in six months' time and had heard all the evidence I may well agree with you. My instinct, however, is that there is material here that I really have not seen and it may be that the proper order is that costs are awarded against the defendant and it may be that the proper order is that the costs come from the estate. I think it should be left until all the material is in.
MR FITZGERALD: It is, Your Honour. May I mention one practical concern though?
HIS HONOUR: Yes.
MR FITZGERALD: May I mention one practical concern though?
HIS HONOUR: Yes.
MR FITZGERALD: Were Your Honour disposed to further adjourn the summons in this proceeding to the 2 September, which is the return date of the summons in the Part 4 proceeding, and with the expectation, I should imagine, that this proceeding is then further adjourned until the determination of the Part 4 proceeding, the question arises whether the same judge will deal with both proceedings. Might I inquire if it is Your Honour's intention that this proceeding should be adjourned along with the substantive proceeding - should - - - ?
HIS HONOUR: I think that should be left to the judge on circuit. I am not aware whether the Part 4 will be heard on the Ballarat circuit or not?
MR FITZGERALD: No, it seems to be advising time mystery, Your Honour, as to - - - ?
HIS HONOUR: I would think that it would be much better if one judge heard all the proceedings and made an order - I think that would be better for everyone and would also save their costs.
MR FITZGERALD: Yes. I just envisage the situation where you're on circuit, Your Honour, one sometimes has difficulty enlisting the aid of the court to have matters dealt with and I suppose - - -
HIS HONOUR: Well, I would recommend, with every respect to the judge on circuit, that all the matters be heard together at the one sittings.
MR FITZGERALD: Perhaps in light of Your Honour's comments today the judge could be pressed to deal with them.
HIS HONOUR: I wish you all well.
MR FITZGERALD: In that event, Your Honour, I would not have anything further.
HIS HONOUR: Thank you very much.
Miss Bartfield, I think for the reasons I have just said, it is premature for me to make any final order as to costs because I do not have the material before me and I do not have the parties before me to make a judgment about where the problem really lies and whether someone is right and someone is wrong or perhaps no one is wrong, but it is premature at the moment. I do think it is better if the judge on circuit deals with them all together. You do not disagree with that, do you?
MISS BARTFIELD: Thank you, Your Honour. I do not disagree, no.
HIS HONOUR: All right. Well I wish you all well and I will have the file noted that it is my view that the matters should all be heard on the one circuit together.
MR FITZGERALD: If Your Honour pleases.
HIS HONOUR: Thank you.
Costs are reserved.
0
0
0