Harvey v Barton [No 3]

[2014] NSWSC 1724

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Harvey v Barton [No 3] [2014] NSWSC 1724
Hearing dates:	28 November 2014
Decision date:	28 November 2014
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:	Directions made.
Catchwords:	TRUSTS - trustees for sale - dispute about sale between trustees for sale of Torrens title property and one of its co-owners - whether directions should be made to expedite sale of the property.
Cases Cited:	Harvey v Barton [2014] NSWSC 1422 Harvey v Barton (No. 2) [2014] NSWSC 1478
Category:	Interlocutory applications
Parties:	Applicant: Andrew James Barnden and Geoffrey Philip Reidy as trustees Plaintiff: Maria Luz Harvey Respondent/Defendant: Maria Luz Barton
Representation:	Solicitors: Applicant: D. Downey, Downeys Lawyers Plaintiff: L. Critchley, NSW Legal Aid Respondent/Defendant: in person
File Number(s):	2012/201450
Publication restriction:	No

EX TEMPORE Judgment

1. This is my third judgment in these proceedings. It should be read with my two earlier judgments: Harvey v Barton [2014] NSWSC 1422; and Harvey v Barton (No. 2) [2014] NSWSC 1478. It is not necessary to recount all the facts of the case again in this judgment.

1. There are two main questions before the Court today: (1) whether the subject property is ready to be marketed; and (2) whether satisfactory arrangements have been made between the parties for Ms Barton to vacate the premises upon the sale by the trustees for sale.

1. As to the first issue, the trustees for sale and Ms Barton have not reached full agreement about the quality of the works that have been done and what further work remains to be done on the property. The disputes seem to range over five main areas of contention: (1) incomplete work in the lower level bathroom; (2) incomplete work and damage caused during landscaping to the garden; (3) the process of obtaining a quote for and engaging tradesmen for the painting of the premises; (4) the process of engaging persons to carpet the premises; and (5) completion of plumbing works.

1. It is not necessary in these reasons to go through the various disputes that have been canvassed before the Court this morning, other than to say that they fall into two categories.

1. Firstly, there are contentions by Ms Barton of a failure on the part of the trustees to communicate with her about quotes that she has obtained in some of these disputed areas. Secondly, there are contentions by Ms Barton that the tradesmen who have done work so far have caused damage to parts of the premises and left work in an unsatisfactory state, such that it may impair the marketability of the property by the trustees for sale.

1. The trustees have presented a program for sale of the property to the Court that seems realistic and has not been opposed by Ms Barton. This program involves first marketing of the property on 15 December 2014 with a view to an ultimate auction sale on 14 February 2015, and an ultimate settlement of a sale contract on 31 March 2015. That now leaves about two weeks to complete the remaining works in these five areas.

1. The Court does not involve itself in the supervision of work of this kind. However, it can be anticipated from the allegations that have been made by Ms Barton and from the answers Mr Downey gives today, that unless these differences are resolved there will be another contest before the Court after the sale of the property. That contest may have to consider whether or not these current works were properly done, whether or not they were done under the supervision of the trustees, and whether they may have impaired the sale value of the property.

1. Unless these issues are resolved to the mutual satisfaction of the parties in the next two weeks before the property is marketed, it is highly likely that expensive and time consuming contests about the conduct of the trustees will occupy the Court's attention after the completion of the sale on 31 March 2015.

1. That would be unfortunate. And it is avoidable by appropriate attention by the trustees and Ms Barton now. To encourage the parties to reduce their disputes through a transparent mechanism and to provide the best evidence in the event that there is any remaining dispute, the Court has decided the way to deal with these issues at this point is to direct the parties to take photographs of any areas that they regard as the subject of dispute immediately before the marketing program commences on Monday 15 December 2014.

1. The Court is going to direct the parties to take photographs on the morning of Monday 15 December before 12 noon of any part of the property which Ms Barton says is in an unsatisfactory state. But Ms Barton must also notify the trustees of the areas of the property she says have been left in an unsatisfactory state, so that the trustees are also in a position to take photographs of the same areas. That will be reflected in the orders that I will shortly make.

1. The remaining issue is the question of vacating the premises. As a result of the submissions made on both sides and the discussion that she has had with the trustees, it is fairly clear that Ms Barton regards the giving of four months' notice of her requirement to vacate as reasonable in the circumstances. That period will run between now, 28 November 2014, and the expected vacation date two days before the settlement of the sale transaction, on 27 March 2015. In my view that is a reasonable period of notice in these circumstances. I have decided I will lift the stay on the writ for possession, so that it may be executed on 27 March 2015 if Ms Barton has not vacated by then.

1. Of course, if a sale takes place before then by private treaty rather than the presently planned auction and Ms Barton is required to vacate before that date, then discussions will have to take place to accommodate Ms Barton. By agreement the parties can approach the Court with a view to varying the present date for vacation to an earlier date. But that will only be with Ms Barton's agreement. Otherwise she will have the security of knowing that she can remain in the premises until Friday 27 March. I will grant liberty to apply for that purpose. Otherwise I will stand the proceedings over for mention before me until a date just after 27 March, so that the proceedings will be listed for mention on 3 April 2015 at 9.30am.

1. As to the issues regarding quotations, Ms Barton contends that on a number of occasions the trustees have not responded to quotes which she has obtained for work, or not been prepared to respond to prices she has negotiated to reduce the cost of some of the installations or reduce the materials costs for the works. I will simply note that if Ms Barton wishes to raise these matters then I expect that she will retain the emails that she has sent and the quotes that she has obtained. They can be deployed in evidence after the sale has taken place.

1. On the other hand, if the trustees have good reasons why the quotes were unsatisfactory, they will also need to gather evidence themselves as to why that is the case, and to explain their reasons to Ms Barton now.

1. Both sides are to be encouraged to see if such issues can be resolved by communication. Even to expend resources on gathering this information is costly. When the Court is assessing the trustees' remuneration, one of the things it will be looking at is the extent which the trustees behaved reasonably in resolving these disputes. At that point the Court will also be assessing Ms Barton's conduct: as to whether her complaints were reasonable.

1. The directions of the Court will be as follows:

(1) I direct Ms Barton to provide a written list to the trustee by 9am on Monday 15 December of any trades works for which the trustees for sale are responsible, which she alleges have been done either incompletely or in a less than workmanlike manner, such as may risk the property achieving less than full market value.

(2) I direct Ms Barton to photograph those areas that she has identified as being unsatisfactory in her opinion as described in order 1 by 12 noon on Monday 15 December.

(3) I direct the trustees to photograph the areas of the work that Ms Barton has identified as unsatisfactory in the manner described in order 1 by 12 noon on Monday 15 December.

(4) I will lift the stay on the writ for possession and order that the writ for possession may be executed on Friday 27 March 2015; and

(5) I will grant liberty to apply.

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Amendments

08 December 2014 - corrected paragraph numbering

Amended paragraphs: 16

Decision last updated: 08 December 2014