Meagher as trustee in Bankruptcy of Pamela Stein v Stein
[2025] WASC 235
•17 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MEAGHER AS TRUSTEE IN BANKRUPTCY OF PAMELA STEIN -v- STEIN [2025] WASC 235
CORAM: FORRESTER J
HEARD: 20 MAY 2025
DELIVERED : 17 JUNE 2025
FILE NO/S: CIV 1855 of 2024
BETWEEN: ANNE MEAGHER AS TRUSTEE IN BANKRUPTCY OF PAMELA STEIN
First Plaintiff
TERRY GRANT VAN DER VELDE AS TRUSTEE IN BANKRUPTCY OF PAMELA STEIN
Second Plaintiff
AND
ERIC PETER STEIN
Defendant
Catchwords:
Practice and Procedure - Summary judgment - Application for order for sale of land pursuant to s 126(1) of the Property Law Act 1969 (WA) - Trustee in bankruptcy - Self-represented defendant - Opposition to sale - Application granted
Legislation:
Bankruptcy Act 1966 (Cth)
Property Law Act 1969 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
| First Plaintiff | : | D Cashin |
| Second Plaintiff | : | D Cashin |
| Defendant | : | In Person |
Solicitors:
| First Plaintiff | : | Omega Law |
| Second Plaintiff | : | Omega Law |
| Defendant | : | In Person |
Cases referred to in decision:
Bombara v Bombara [2010] WASC 314
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Kounis v Westpac Banking Corporation [2023] WASCA 185
Martin-Smith v Woodhead [1990] WAR 62
Orrman v Orrman [No 2] [2008] WASC 17
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
FORRESTER J:
Introduction
On 19 July 2024, the Plaintiffs made an application pursuant to s 126(1) of the Property Law Act 1969 (WA), for a property owned by the First Plaintiff and the Defendant as tenants in common in equal shares to be sold on the basis of unencumbered vacant possession (Proceedings).
The First Plaintiff also sought orders giving it the conduct of the sale and associated orders.
The Defendant entered an appearance on 29 August 2024.
On 30 January 2025, Master Russell made an order that the matter proceed as if commenced by writ of summons. The plaintiff filed a Statement of Claim on 7 February 2025.
On 7 February 2025, the First and Second Plaintiffs also made an application for summary judgment pursuant to O 14 of the Rules of Supreme Court 1971 (WA) (Rules) (Application).
For the reasons which follow, the Application will be granted.
Evidence
The Plaintiffs read into evidence the following affidavits:
(a)Rebecca Hunt sworn on 7 April 2021 (Rebecca Hunt Affidavit);
(b)Andrew Charles Hunt sworn on 27 November 2023 (Andrew Hunt Affidavit);
(c)Derrick Colin Cashin sworn on 11 June 2024 (First Cashin Affidavit);
(d)Anne Meagher sworn on 15 July 2024 (First Meagher Affidavit);
(e)Anne Meagher sworn on 25 February 2025 (Second Meagher Affidavit); and
(f)Derrick Colin Cashin sworn on 25 February 2025 (Second Cashin Affidavit).
The Defendant read the affidavit of Eric Peter Stein sworn on 14 November 2024 (First Stein Affidavit). There is an unsworn affidavit dated 20 March 2025 on the court file, but the annexures were not attached, so the substantive matters the Defendant sought to put before the court are not able to be ascertained. The Defendant failed to respond to correspondence of the court in this regard until the afternoon of the day before the hearing.
Self-represented litigant
At the outset, it is appropriate to state that, in conducting the hearing and determining the Application I was, and am, mindful that Mr Stein is a litigant in person and, as such, is entitled to some leniency in relation to compliance with the court rules. The court is required to approach the documents in which he articulates his case with some flexibility. The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.
In Glew v Frank Jasper Pty Ltd,[1] the court observed:
Due allowance must, of course, be made for the fact that [an appellant] is unrepresented. A court should always be careful to see that the rights of an unrepresented litigant have not been 'obfuscated by their own advocacy': Neil v Nott [1994] HCA 23 [5]; (1994) 121 ALR 148,150. It must be alert to the possibility that beneath inadequately expressed and often irrelevant material there may lurk an arguable case. And some leniency may be required in relation to compliance with the rules. But in the end the allowances that can be made for a litigant in person are necessarily limited, both as a matter of fairness to the other party, who must be adequately informed of the case they have to meet, and because the provision of acceptable grounds of appeal is fundamental to the exercise of the appellate function by the court.[2]
[1] Glew v Frank Jasper Pty Ltd [2010] WASCA 87.
[2] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
Factual background
The facts are uncontentious.
On 16 August 2018, the First Plaintiff was appointed a joint and several trustee in bankruptcy with the Second Plaintiff of the Estate of Pamela Stein (Ms Stein).[3]
[3] First Meagher Affidavit, [2].
As at the date of Plaintiffs' appointment, Ms Stein and the Defendant were registered proprietors of an estate in fee simple of Lot 205 on Plan 23905, being the whole of the land described in Certificate of Title 2182 Folio 907, commonly known as 10 Willespie Drive, Pearsall, in the State of Western Australia (Property).[4]
[4] First Meagher Affidavit, [3].
On 14 January 2009, a mortgage to Westpac Banking Corporation had been registered over the Property.[5]
[5] First Meagher Affidavit, [5].
On 30 March 2021, the Defendant was served with a letter inviting him to purchase the First Plaintiff's interest in the Property and giving him notice that, unless he took certain steps, the First Plaintiff would commence the Proceedings.[6]
[6] Rebecca Hunt Affidavit.
A further letter was sent to the Defendant on 23 July 2021, and a similar letter was sent to Ms Stein on the same date.[7]
[7] First Cashin Affidavit, 16 - 19.
On 23 July 2021, Ms Stein emailed the Plaintiffs' lawyers acknowledging their correspondence, indicating that she was unwell and seeking an opportunity to obtain legal advice.[8]
[8] First Cashin Affidavit, 22.
On 25 October 2023, the Plaintiffs' lawyers again wrote to the Defendant, indicating the Plaintiffs were obliged to sell the Property to realise the funds to pay the creditors of Ms Stein's estate, and inviting him to take one of three steps to avoid proceedings to sell the Property.[9]
[9] First Cashin Affidavit, 23 - 24.
On or about 4 November 2021, the First Plaintiff was registered on the title of the Property as the proprietor of one undivided half share of the Property as tenant in common with the Defendant.[10]
[10] First Meagher Affidavit, 2 [4], 5.
On 22 November 2023, the Defendant was served with a further letter dated 17 November 2023 offering him a final opportunity to take steps to avoid the Plaintiffs commencing the Proceedings.[11]
[11] Andrew Hunt Affidavit.
On that date, the Defendant emailed Mr Cashin, indicating that he had tried to contact him, but the Defendant did not respond substantively to the correspondence served on him on that date.[12]
[12] First Cashin Affidavit, 28 - 29.
Despite further emails, the Defendant failed to provide a substantive response to the Plaintiffs' lawyers until 12 December 2023. On that date, the Defendant indicated that he had a workplace accident in 2020, in relation to which a negligence claim was pending. He indicated that Ms Stein was having discussions with the Plaintiffs' firm regarding the extent of Ms Stein's debts and that he was seeking legal advice. He therefore sought additional time.[13]
[13] First Cashin Affidavit, 32.
Following some telephone conversations, Mr Cashin emailed the Defendant and Ms Stein on 10 January 2024 requiring the Defendant to put forward a concrete proposal regarding his proposed purchase of the First Plaintiff's share in the Property by 24 January 2024.[14] The Defendant indicated he would do so.[15]
[14] First Cashin Affidavit, 41.
[15] First Cashin Affidavit, 42.
On 24 January 2024, the Defendant sought further time, indicating that he and Ms Stein were still attempting to finalise the amount of the debts owed by Ms Stein in bankruptcy.[16] On 1 February 2024, Mr Cashin again wrote to the Defendant advising that, unless the Defendant responded with a resolution of the matter by 15 February 2024, the Proceedings would be commenced.[17]
[16] First Cashin Affidavit, 43.
[17] First Cashin Affidavit, 45 - 48.
On 15 February 2024, the Defendant indicated he did not accept Mr Cashin was entitled to act for the Plaintiffs and that he would seek legal advice.[18] By return email, Mr Cashin refuted the Defendant's claim,[19] and on 20 February 2025, again wrote to the Defendant, offering him a final opportunity to advise what he proposed to do in relation to the Property, failing which the Proceedings would be commenced.[20]
[18] First Cashin Affidavit, 49.
[19] First Cashin Affidavit, 50.
[20] First Cashin Affidavit, 51 - 52.
After further correspondence, the Plaintiffs extended the deadline to 22 March 2024 and again to 23 April 2024. On 23 April 2024, Ms Stein advised that, due to the Defendant's illness, they had been unable to progress the matter. Mr Cashin pressed the Defendant and Ms Stein to respond by 9 May 2025 but Ms Stein again sought more time. On 15 May 2024, the Plaintiffs' lawyers again extended the deadline to respond to 22 May 2024. Ms Stein responded, indicating that they intended to make a 'Last Resort Compensation Claim' to ACFA.[21]
[21] First Cashin Affidavit, 53 - 67.
As of 15 July 2024, the Plaintiffs' best estimate of the amount owing to creditors of Ms Stein's estate was $40,254, not including the costs of the administration.[22] The value of Ms Stein's Estate's half interest in the Property, free of encumbrances, is between approximately $146,000 and $181,000.[23]
[22] First Meagher Affidavit, [11].
[23] First Meagher Affidavit, [10].
The Defendant says he is waiting on the resolution of a common law compensation claim to pay out Ms Stein's bankruptcy debt. No date was provided as to when that would occur.[24]
[24] First Stein Affidavit, 3.
On 30 January 2025, Master Russell made an order that the Plaintiffs file and serve any application for summary judgment pursuant to O 14 of the Rules by 13 February 2025. The parties were given a further opportunity to file affidavits.
In the Second Meagher Affidavit, Ms Meagher confirmed the information in the First Meagher Affidavit and verified the information contained in the Statement of Claim. Mr Cashin, by the Second Cashin Affidavit, deposed as to service of the Application and affidavits in support, as well as the Statement of Claim.
The Defendant lodged a second document which purported to be an affidavit, but it was unsworn, and the annexures were not attached. The attachments have now been provided to the court, but show only that the Defendant's common law compensation claim has not substantially progressed.
Applicable Law
Application for summary judgment
The application has been brought pursuant to O 14 r 1(1) of the Rules.
I am satisfied that all of the relevant documents have been served on the Defendant.
The preconditions for the making of an application have been met. To the extent that any extension of time is required, bearing in mind that the application was originally made by originating summons and was ordered to proceed as if it was commenced by writ, Master Russell granted such an extension by order made on 30 January 2025.
An affidavit has been filed in support of the application, which complies with O 14 r 2(1).
The legal principles relevant to an application for summary judgment pursuant to O 14 r 1 are well established. As the Court of Appeal observed in Kounis v Westpac Banking Corporation:
Summary judgment is a procedure designed to deal with cases that are not fit for trial. The power to determine a proceeding summarily must be attended with great care - sometimes expressed in terms of 'exceptional caution'. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if they went to trial, that summary judgment ought properly to be granted. The claimant carries the burden of persuading the court that the claim is a good one, that there is no defence to it, that leave to defend should not be granted and that judgment should be given for the claimant. If the claimant can establish a prima facie right to summary judgment, the burden then shifts to the defendant to satisfy the court why judgment should not be given against him or her. In this respect the defendant has an evidentiary burden. However, the overall burden of persuasion remains on the party moving for summary judgment.
A defendant seeking to resist summary judgment does not have to show a defence on the balance of probabilities. However, the defendant must at least show cause as to why there is an arguable defence.[25]
Property Law Act 1969 (WA)
[25] Kounis v Westpac Banking Corporation [2023] WASCA 185 [8] ‑ [9]. See also Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
Relief is sought pursuant to s 126(1) of the Property Law Act 1969 (WA), which relevantly provides:
126.In action for partition Court may direct land to be sold
(1)Where in an action for partition the party or parties interested, individually or collectively, to the extent of a half share or upwards in the land to which the action relates request the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly.
(2)The Court may, if it thinks fit, on the request of any party interested, and notwithstanding the dissent or disability of any other party, direct a sale in any case where it appears to the Court that, by reason of the nature of the land, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of any of those parties, or of any other circumstance, a sale of the land would be for the benefit of the parties interested.
(3)The Court may also, if it thinks fit, on the request of any party interested, direct that the land be sold, unless the other parties interested, or some of them, undertake to purchase the share of the party requesting a sale; and, on such an undertaking being given, may direct a valuation of the share of the party requesting a sale.
(4)On directing a sale or valuation to be made under subsection (3) the Court may give also all necessary or proper consequential directions.
…
(6)On any sale under this section the Court may allow any of the parties interested in the land to bid at the sale, on such terms as the Court deems reasonable as to non-payment of deposit, or as to setting off or accounting for the purchase money or any part thereof instead of paying the same, or as to any other matters.
In Bombara v Bombara,[26] Allanson J summarised the principles to be applied in relation to s 126(1) in the following terms:
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'.
The court has a complete discretion as to who it will appoint to conduct a sale. As a matter of practice, ordinarily the conduct of the sale is given to the plaintiff.
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'. (citations omitted).[27]
[26] Bombara v Bombara [2010] WASC 314.
[27] Bombara v Bombara [2010] WASC 314 [79] - [81].
The onus of proof for the purposes of s 126(1) is upon the defendant to establish a good reason why the sale should not go ahead.[28]
Bankruptcy Act 1966 (Cth)
[28] Martin-Smith v Woodhead [1990] WAR 62, 69.
Section 19 of the Bankruptcy Act 1966 (Cth) relevantly provides:
19 Duties etc. of trustee
(1) The duties of the trustee of the estate of a bankrupt include the following:
…
(b) determining whether the estate includes property that can be realised to pay a dividend to creditors;
…
(f) taking appropriate steps to recover property for the benefit of the estate;
(g) taking whatever action is practicable to try to ensure that the bankrupt discharges all of the bankrupt's duties under this Act;
…
(j) administering the estate as efficiently as possible by avoiding unnecessary expense;
(k) exercising powers and performing functions in a commercially sound way…
Plaintiffs' submissions
The Plaintiffs submit that they have made 'extensive, exhaustive and collaborative attempts to resolve the matter of the Property with the Defendant (or, alternatively, arrange an annulment of the bankruptcy) without result'.[29]
[29] First and Second Plaintiffs' Outline of Submissions and List of Authorities in Support of Chamber Summons filed 28 March 2025, 2 [4].
The evidence establishes that, in the more than six years since Ms Stein was declared bankrupt, and in the (at least) four years of the Plaintiffs or their lawyers communicating with the Defendant and Ms Stein, the Defendant has not made any substantive steps towards resolution of the Proceedings.
The Plaintiffs have a positive obligation to realise assets for the benefit of creditors.[30]
[30] Bankruptcy Act 1966 (Cth) s 19.
Defendant's submissions
The Defendant had no substantive submissions in opposition to the application. His submission was simply that the court should not make the orders and should adjourn the Proceedings (including the Application) to enable him to have more time to obtain the necessary funds to resolve the Proceedings. However, he was unable to point to any steps he could take in the near future, and it appeared he hoped to await the outcome of his common law proceedings in the District Court. Apart from unsuccessfully seeking free legal assistance, he was unable to point to any steps he had taken to otherwise deal with the matter.
Adjournment
In the circumstances, the Defendant was provided with an additional three weeks in order to seek the assistance of a financial counsellor (and he was provided with some assistance to locate such assistance). I ordered that if the matter was unable to be resolved after that time, I would then make a decision on the papers.
After the expiration of the three weeks, I was informed that the matter had not been resolved, and I have therefore proceeded to determine the matter.
Disposition
I am satisfied that the First Plaintiff is a person interested in the Property to the extent of a half-share or upwards and thus s 126(1) of the Property Law Act1969 (WA) applies.
The Plaintiffs have a duty to take appropriate steps to recover the Property and apply it to the debts of Ms Stein's Estate. They have been attempting to do so in an alternative manner for more than four years.
Such evidence as has been put on by the Defendant is to the effect that, at some uncertain point in the future, he may come into funds which enable him to annul Ms Stein's bankruptcy. However, the evidence is, at best, speculative.
In Orrman v Orrman [No 2], EM Heenan J observed:
There is authority to suggest that the discretion to refuse an order under s 126, because of good reason to the contrary, is not a justification to refuse relief absolutely but is only a justification to order physical partition in lieu of sale. I consider that to be the correct interpretation of the section.[31]
[31] Orrman v Orrman [No 2] [2008] WASC 17 [38].
On this basis, even if I were to accept the Defendant's evidence as more than mere speculation, it could not constitute a good reason to order physical partition of the Property. Neither party requests a partition of the Property in lieu of sale, and there is no evidence before me upon which I could find that partition is a possible, let alone practicable, alternative to sale in this case.
In those circumstances, I am satisfied that there is no arguable defence to the Plaintiffs' claim.
In those circumstances, the Application should be granted.
The Defendant has not sought to adduce evidence as to how the sale should be effected. Indeed, he has repeatedly been offered the opportunity to conduct the sale himself and failed to take up the opportunity. In those circumstances, I consider it to be appropriate for the Plaintiffs to have the conduct of the sale.
Orders
The orders I make are therefore as follows:
1.Pursuant to Order 14 rule 3(1) of the Rules, judgment is entered for the Plaintiffs against the Defendant.
2.Pursuant to section 126(1) of the Property Law Act 1969 (WA), the whole of the land described in Certificate of Title Volume 2182 Folio 907, known as 10 Willespie Drive, Pearsall WA 6065 (Land), owned by the First Plaintiff and the Defendant as tenants in common in equal shares, be sold on the basis of unencumbered vacant possession.
3.The First Plaintiff have the conduct of the sale of the Land and for that purpose:
(a)the First Plaintiff shall engage, in the name of the First Plaintiff and the Defendant, a qualified real estate agent carrying on business in the area of Pearsall and its surrounding districts to act on such sale (Agent), and cause the Agent appointed by the First Plaintiff:
(i)to recommend a reserve price for the sale of the Land, which recommendation may be altered by the Agent at any time;
(ii)to adopt the reserve price recommended by the Agent from time to time as a reserve for the sale of the Land; and
(iii)to market, advertise and otherwise offer the Land for sale by way of auction or private treaty as recommended by the Agent; and
(b)the First Plaintiff, upon being notified by the Agent of a recommended reserve, shall give notice to the Defendant of such reserve.
4.The Defendant co-operate fully with the Agent appointed by the First Plaintiff in the sale process.
5.On any sale of the Land made pursuant to the terms of this Order:
(a)the First Plaintiff shall be authorised by this Order to sign for and on behalf of itself and the Defendant any transfers, notice of appointment of agent or other documents necessary to give effect to the sale of the Land;
(b)each party to the action will be at liberty to bid at auction, or make offer by way of private treaty; and
(c)the First Plaintiff be entitled to disburse the proceeds of the sale of the Land in the following priority:
(i)paying any registered encumbrancer of the entirety of the Land;
(ii)discharging all costs, charges and expenses properly incurred in the sale of the Land; and
(iii)paying the residue, if any, in equal shares to the First Plaintiff and the Defendant, subject to Order 8.
6.The Defendant be personally served with this Order, and that he deliver up vacant possession of the Land to the First Plaintiff within 30 days after service of the Order.
7.In the event the Defendant fails to deliver vacant possession of the Land in accordance with order 6 herein, a property (seizure and delivery) order in relation to the Land, being real property, may be issued pursuant to s 95 of the Civil Judgments Enforcement Act 2004 (WA).
8.The costs of the action and application be paid by the Defendant out of the Defendant's share of the proceeds of the sale of the Land, to be taxed if the Defendant does not agree to them in writing within 14 days of settlement of the sale of the Land.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CA
Associate to the Hon Justice Forrester
17 JUNE 2025
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