Michael Charles Littlely as executor of the estate of the late Elspeth Mary Littlely v Leslie Raymond Gard [No 5]
[2022] WASC 394
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: MICHAEL CHARLES LITTLELY as executor of the estate of the late ELSPETH MARY LITTLELY -v- LESLIE RAYMOND GARD [No 5] [2022] WASC 394
CORAM: CURTHOYS J
HEARD: 30 MAY 2022
DELIVERED : 22 NOVEMBER 2022
FILE NO/S: CIV 2145 of 1990
BETWEEN: MICHAEL CHARLES LITTLELY as executor of the estate of the late ELSPETH MARY LITTLELY
Plaintiff
AND
LESLIE RAYMOND GARD
Defendant
Catchwords:
Practice and procedure - Application for sale of property - Judgment on admissions - Whether judgment should be entered in favour of plaintiff on admissions made by defendant
Legislation:
Rules of the Supreme Court 1971 (WA), O 30 r 3
Result:
Order for sale of property
Category: B
Representation:
Counsel:
Plaintiff : R R Joseph Defendant : A Sidhu Solicitors:
Plaintiff : Michael Rogers & Associates Defendant : Rekhraj Legal Cases referred to in decision:
Cardaci v Filippo Primo Cardaci as Executor of the Estate of Marco Antionio Cardaci, dec [No 4] [2020] WASC 159
Gard v Littlely (Unreported, WASC, Library No 8884, 21 May 1991)
Halford v Halford [No 2] [2018] WASC 303
Lancaschire Welders Ltd v Harland & Wolff Ltd [1950] 2 All ER 1096
Littlely v Gard (Unreported, WASC, 8 March 1991)
Littlely v Gard (Unreported, WASC, Library No 8693, 29 January 1991)
Littlely v Gard (Unreported, WASC, Library No 930389, 20 July 1993)
Moon v Mun [2013] NSWCA 217
Re Registered Trade Marks 'Certina' (1970) 44 ALJR 191
CURTHOYS J:
Introduction
1The plaintiff as executor of the estate of the late Elspeth Littlely applies by chamber summons for an order for the sale of a property at 30 Thorne Road, Hacketts Gully, being Lot 10 on Diagram 51932 and being the whole of the land comprised in Certificate of Title Volume 1489 Folio 339 (the Property).
2This case has been on foot in this court for 32 years.
3Ms Littlely and the defendant, Leslie Gard, were partners and the registered proprietors of the Property. Between 1977 and 1989, they carried on a partnership as orchardists on the Property. The partnership was terminated as a result of a breakdown in their relationship.
4Ms Littlely consequently brought proceedings against the defendant seeking, inter alia, a declaration that they became partners in equal shares, an order that the partnership be wound up and an order that all necessary accounts and enquiries be taken and made.
5The defendant filed a defence but Ms Littlely was successful in an application for summary judgment.
6Ms Littlely subsequently brought an application for appointment of a receiver for sale or partition of the Property.
7On 29 January 2001, the court made a springing order for the sale of the Property. Due to the length of time that has passed since judgment was entered for the plaintiff, that springing order is no longer enforceable.
8The primary issue before the court is whether the Property should now be sold.
9The plaintiff does not seek to enforce the springing order made 21 years ago but relies on four alternative sources of power that he says are available to the court to order the sale of the Property. The defendant in effect contends that the sale would not be appropriate due to existence of unresolved issues and the acquiescence of Ms Littlely.
Evidence
10In support of his application, the plaintiff relies upon the affidavit of Michael John Rogers sworn 25 July 2000, the affidavit of Michael John Rogers sworn 15 December 2021 and the affidavit of Michael Charles Littely sworn 12 December 2021.
11The defendant filed an affidavit sworn 8 March 2022 in opposition to the application.
Procedural background
12The writ of summons with indorsed statement of claim was filed on 2 August 1990. The writ sought the following relief:
1.(a) a declaration that the Plaintiff and the Defendant in or about 1977 became partners in equal shares in the business of orchardists;
(b)an order that the affairs of the partnership be wound up;
(c)for the purposes aforesaid, all necessary accounts and enquiries be taken and made;
OR IN THE ALTERNATIVE
2.(a) an order that the property and the business chattels be sold by private treaty or public auction with the solicitors for the Plaintiff having the carriage of sale and upon such terms and conditions as the Honourable Court thinks fit;
(b)an order that the chattels not being business chattels be divided equally between the parties;
13The defence was filed 7 September 1990.
14Ms Littlely filed an application for summary judgment on 7 December 1990.
15On 29 January 1991, Master Bredmeyer gave summary judgment against the defendant.
16Master Bredmeyer rejected the defendant's defences that the house was exclusively his[1] and that the partnership accounts did not reflect the true relationship between the parties.[2] The master held that the parties' interest in the Property was reflected in their registration as tenants in common in equal shares.
[1] Littlely v Gard (Unreported, WASC, Library No 8693, 29 January 1991) 10 - 11.
[2] Littlely v Gard (Unreported, WASC, Library No 8693, 29 January 1991) 12.
17The defendant subsequently lodged a notice of appeal against Master Bredmeyer's decision. The defendant sought orders that the summary judgment be set aside and that he be given unconditional leave to defend.
18The defendant successfully applied for a stay of execution of the judgment pending the appeal.[3]
[3] See Littlely v Gard (Unreported, WASC, 8 March 1991).
19In his submissions, the defendant sought to make something of the observations of Master Bredmeyer in his judgment staying execution.[4] The master's observations were made in the course of an interlocutory decision. They are just that - observations. They are not relevant to the ultimate resolution of this matter.
[4] Defendant's submissions filed 31 March 2022 [18] (Defendant's Submissions).
20On 7 May 1991, the defendant filed a notice of motion to amend his defence and a minute of amended defence.
21The plaintiff submitted that the minute should be disregarded given it was filed after summary judgment was entered and the defendant did not obtain leave to file the minute.[5] The defendant relevantly pleaded:
[5] ts 31 - 32 (30/5/2022).
8.Save to deny that:
(a)the Plaintiff has any interest in the improvements on the property; and
(b)the chattels not being assets of the partnership belong to the Plaintiff and Defendant in undivided shares;
the Defendant admits paragraph 8 of the Statement of Claim.
9.In further reply [to] paragraph 8 of the Statement of Claim the Defendant says that it was specifically agreed that the improvements on the property should not form any part of the partnership assets.
PARTICULARS
Verbal; in or about 1977.
10.The Defendant says that by a letter dated the 22nd day of May 1990, the Plaintiff requested the Defendant to join in a sale of the land and the chattels formerly belonging to the partnership and to join in the equal division of household chattels and the proceeds of such a sale. The Defendant admits that he refused to do so. As to the allegation in paragraph 9 of the Statement of Claim that the Defendant has failed to do so, the Defendant denies that he is obliged to divide any chattels or proceeds with the Plaintiff equally or at all.
11.By reason of his greater contribution to the acquisition of the assets of the partnership and to the business of the partnership the Defendant is entitled to a greater proportion of the partnership assets than 50%; further particulars will follow after discovery and interrogatories.
12.Other that for an order that the affairs of the partnership be wound up the Defendant denies that the Plaintiff is entitled to the relief claimed or to any relief.
22The Full Court heard and delivered judgment in the appeal of summary judgment on 21 May 1991. The Court allowed the appeal in part and made the following orders:
2.The orders made by Master Bredmeyer in Chambers on 29 January 1991 be varied by setting aside orders 1, 2, 5, 6, 7, 8, 9, 10, 11 and 13.
3.There be a declaration that the partnership was a partnership in equal shares.
4.There be general liberty to apply for further directions pursuant to O 45 in regard to the taking of accounts and generally.
23The orders of Master Bredmeyer in relation to the taking of accounts and inquiries were varied to enable further orders to be made as the circumstances required.[6] The surviving orders (orders 3, 4, 12 and 14) made by Master Bredmeyer provided:
[6] Gard v Littlely (Unreported, WASC, Library No 8884, 21 May 1991) 3 (Anderson J, Franklyn & Walsh JJ agreeing).
3.The partnership entered into between the Plaintiff and the Defendant was dissolved from and including the 1st day of October 1989.
4.In the event that the parties cannot agree on accounts on the dissolution of the partnership within 28 days of the completion of those accounts, the following accounts and enquiries be taken and made by a Registrar or Master of This Honourable Court:-
(a)an account of all receipts and payments and dealings and transactions of the Defendant in respect of the partnership business from the 1st day of October 1989;
(b)an inquiry as to what has become of the property and assets since 1st October 1989, including but not limited to an inquiry as to waste and/or damage to the said property and assets occurring since 1st October 1989;
(c)an account of the partnership assets and liabilities as at 30th June 1990 and as at 1st October 1989:
…
12.The Defendant permit the Plaintiff and/or her duly authorised agents to inspect the property, plant, equipment and contents of the home and take an inventory of the same during normal business hours and upon giving 24 hours' notice to the Defendant's solicitors.
…
14.The Defendant do pay the Plaintiff's costs of and incidental to this action and of the Application to be taxed as an action for $130,000.00.
24Accordingly, the taking of accounts and enquiries was to proceed in accordance with order 4 of the master's orders.
25The Full Court did not set aside summary judgment or grant the defendant leave to defend Ms Littlely's claim. In his reasons for judgment on behalf of the Full Court, Anderson J held that the master's conclusion that there was no defence was 'clearly correct'.[7]
[7] Gard v Littlely (Unreported, WASC, Library No 8884, 21 May 1991) 3 (Anderson J, Franklyn & Walsh JJ agreeing).
26Anderson J further stated:[8]
Usually it is appropriate at the time of obtaining final judgment to consider whether to obtain an order for the appointment of a receiver. For myself, I would have thought that it was appropriate to appoint a receiver in this case but neither party appears to want a receiver to be appointed and the plaintiff's counsel has specifically informed this Court that the plaintiff does not want a receiver to be appointed.
In due course, consideration will have to be given to a wide range of matters to do with the accounts and enquiries, including, for example, (because there is no receiver) who should be the accounting party.
[8] Gard v Littlely (Unreported, WASC, Library No 8884, 21 May 1991) 4 (Anderson J, Franklyn & Walsh JJ agreeing).
27If the parties had listened to Anderson J's sage advice to appoint a receiver, this matter would have been resolved decades ago!
28On 20 September 1991, the defendant filed a minute of proposed counterclaim. The proposed counterclaim was to the effect that the additional monies contributed by the defendant to the improvements to the Property 'were entitled to be brought into account in the partnership accounting' and that to allow that to occur the accounts should not be treated as settled.[9] The defendant sought 'various declarations, inquiries, orders and special accounts in connection with the taking of the accounts the subject of the judgment'.[10]
[9] ts (8/4/1993) 6.
[10] Littlely v Gard (Unreported, WASC, Library No 930389, 20 July 1993) 3 (Kennedy J, Malcolm CJ & Pidgeon J agreeing).
29On 14 August 1994, Master Bredmeyer reserved three questions arising from the defendant's proposed counterclaim for the consideration of the Full Court pursuant to s 43(1) of the Supreme Court Act 1935 (WA), namely:
(1)whether the defendant is precluded from bringing a counterclaim against the plaintiff in these proceedings;
(2)whether and to what extent the defendant is precluded from bringing any separate action against the plaintiff for the relief claimed by the defendant in his minute of proposed counterclaim; and
(3)whether and to what extent the defendant is, by his admissions in previous proceedings, precluded from having the accounts and enquiries he seeks in his application for the same dated 21 August 1991.
30The s 43 referral was heard on 8 April 1993 and judgment was delivered on 20 July 1993. The Full Court held that the defendant was precluded from bringing a counterclaim against Ms Littlely or any separate action against her for the relief claimed by the defendant in his minute of proposed counterclaim. The Court said that it was not appropriate to answer the third question on a reference under s 43(1) of the Supreme Court Act.[11] The relief claimed in the proposed counterclaim was held to consist of 'matters typically dealt with in taking accounts'.[12]
[11] Littlely v Gard (Unreported, WASC, Library No 930389, 20 July 1993) 3 - 4 (Kennedy J, Malcolm CJ & Pidgeon J agreeing).
[12] Littlely v Gard (Unreported, WASC, Library No 930389, 20 July 1993) 3 (Kennedy J, Malcolm CJ & Pidgeon J agreeing).
31During the referral hearing, Malcolm CJ remarked that the issue of whether the partnership accounts are settled is a 'preliminary issue to the taking of the accounts' that would need to be pursued by the defendant.[13]
[13] ts 9 (8/4/1993).
32On 25 June 1993, the defendant brought an application seeking, inter alia, the taking of the partnership accounts or alternatively that any partnership accounts be reopened and amended as necessary.[14] That application seems to ultimately have progressed to a hearing of preliminary issues that took place before Owen J on 16 and 18 April 1996. The issue before his Honour was whether the defendant was precluded from challenging determinations of, or reopening, the settled partnership accounts.[15] However, the preliminary issues hearing was adjourned sine die by consent[16] and it appears that the issue was never agitated again by the defendant.
[14] Further summons by defendant for accounts and enquiries filed 25 June 1993, 2.
[15] ts 2 (16/4/1996).
[16] ts 2 (18/4/1996).
33On 1 August 2000, Ms Littlely brought an application for appointment of a receiver for sale or for partition of the Property.[17] The application was made in circumstances where the defendant was asserting that the Property was not partnership property but owned as tenants in common.
[17] Plaintiff's summons for appointment of receiver for sale or for partition filed 1 August 2000.
34At the hearing of the application on 29 January 2001, Owen J made a springing order for the Sale of Property. The terms of the orders were as follows:
1.Unless within three (3) months of the date of this order the defendant pays into an interest bearing account in the joint names of the solicitors for the plaintiff and the solicitors for the defendant the sum of $100,000.00 the freehold property known as Hackett's Gully (Lot 10 the subject of diagram 51932 and being the whole of the land in Certificate of Title volume 1489 Folio 339) be sold under the direction of the Court.
2.If the monies are paid in accordance with Paragraph 1 they are to be held pending the final resolution of the partnership dispute between the parties or until further order.
3.If the monies are not paid in accordance with paragraph 1 there be liberty to apply on 7 days' notice for orders concerning the terms and conditions on which the property is to be sold.
35In lieu of the springing order, an agreement was reached between the parties on terms set out in a letter from Ms Littlely's solicitor dated 8 May 2001 (and signed by the defendant on 25 May 2001) (the Letter).[18]
[18] Affidavit of Michael John Rogers sworn 15 December 2021, annexure MJR‑2 (Rogers Affidavit).
36The Letter relevantly stated:[19]
I acknowledge receipt of your letter dated 27th April 2001.
I confirm that as an interim measure pending the final determination of this matter, my client will be agreeable to accept non-refundable rent payments from your client at the rate of $500.00 per month commencing on the 1st May 2001.
If any rent payment is not received within 7 days of due date (apart from the first rent payment which you have advised is already in your Trust Account which we hope will be forward to ourselves shortly), my client will be entitled to immediately proceed with an application for sale of the Hackett's Gully property.
Under no circumstances will the rent payments which your client is agreeable to make be refundable by my client.
I enclose a duplicate dopy of this letter for your client or your firm to sign on your clients behalf and return to me to indicate acceptance of the interim arrangement.
[19] Rogers Affidavit, annexure MJR‑2.
37It was therefore agreed that that the defendant would pay monthly 'non-refundable rent payments' of $500 pending the final determination of the action.
38The description of the payments as an 'interim measure pending final resolution' shows the parties plainly intended for the arrangement to be an interim measure. Either party could have brought the payments to an end by progressing the action. Payments were made by the defendant for 229 months totalling $114,500.[20] The defendant submits that the plaintiff failed to bring the matter to a final resolution. However, it was always open to the defendant to issue a notice of intention to proceed and bring the matter to finality.
[20] Affidavit of Leslie Raymond Gard sworn 8 March 2022 [6] (Gard Affidavit).
39The payments were also described in the Letter as 'non‑refundable rent payments'. The circumstances were that the defendant remained living in the Property and Ms Littlely moved out. Ms Littlely therefore lost the benefit of living on the Property while the defendant retained the benefit.
40There is no basis for concluding that the $500 payments were anything other than rent payments as described in the Letter. The payments were certainly not loan repayments or required to be repaid or taken into consideration in any accounting.
41Ms Littlely died on 3 March 2020. The defendant ceased making the $500 payments in May 2020. He stated that this was because he had retired as a tool maker at the age of 85 and that he could no longer afford to make the payments.[21]
[21] Gard Affidavit [15].
42The existence of the payment arrangement is why no party has sought to enforce the springing order or to otherwise apply for the sale of the Property until now.
43Following Ms Littlely's death, the plaintiff instituted a claim in the Midland Magistrates Court seeking all outstanding rent from the defendant in the amount of $5,000 pursuant to the Residential Tenancies Act 1987 (WA). The claim was dismissed on 7 September 2021.
44The plaintiff's claim was dismissed on the basis that:[22]
[t]he Act does not specifically exclude the arrangement described above, but neither does the agreement refer to that legislation; it came into existence as a direct consequence of the Supreme Court action. There was no compliance with the Act; for example, no bond was lodged, no written lease was provided, nor were property condition reports were prepared, or indeed any relevant activity undertaken to comply with the Act.
[22] Affidavit of Leslie Raymond Gard sworn 8 March 2022, annexure LRG-3 [7].
45In effect, the magistrate found that he did not have jurisdiction under the Residential Tenancies Act.
46The defendant contended that the claim was dismissed on the basis that, inter alia, the payment of rent was more in the nature of a loan repayment.[23] I do not agree with that characterisation of the magistrate's reasons.
[23] Defendant's Submissions [36(i)].
47The magistrate characterised the monthly $500 payments as loan payments however,r the characterisation was obiter. Accordingly, contrary to the defendant's submissions, there was no reason to appeal that part of the decision.
48The defendant's submissions that the payments were a loan or payment of interest flies in the face of the terms of the Letter.
The application
49By chamber summons filed 15 December 2021, the plaintiff seeks an order for the sale of the Property. The plaintiff submits that the sale of the Property could be made pursuant to four alternative sources of power:
(1)O 30 r 3 of the Rules of the Supreme Court 1971 (WA) (Rules);
(2)s 126 of the Property Law Act 1969 (WA);
(3)O 53 of the Rules; or
(4)O 59 r 1(1)(n) of the Rules.
50The defendant appears to accept that these provisions provide the court with the power to order the sale of the Property.[24]
[24] Defendant's Submissions [3].
Judgment should be entered in favour of the plaintiff
51For the reasons that follow, I am satisfied that the plaintiff is entitled to an order for the sale of the Property pursuant to the court's power to make orders on admissions in O 30 r 3 of the Rules.
52Order 30 r 3 of the Rules provides:
3. Judgment on admissions
(1)Where admissions of fact have been made on the pleadings or otherwise, any party may at any stage of a cause or matter apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may on such application make such order or give such judgment as the Court thinks just.
(2)An application under this rule may be made on motion or by summons.
53The power to grant judgment on admissions is discretionary.[25] However, the discretion should be exercised with great caution, only in a clear case and having regard to case management principles.[26]
[25] Lancashire Welders Ltd v Harland & Wolff Ltd [1950] 2 All ER 1096, 1097.
[26] Re Registered Trade Marks 'Certina' (1970) 44 ALJR 191, 192 - 193; Cardaci v Filippo Primo Cardaci as executor of estate of Marco Antonio Cardaci [No 4] [2020] WASC 159 [98]; Halford v Halford [No 2] [2018] WASC 303 [30].
54In a proper case, judgment can be given on an admission in respect of only part of a claim.[27]
[27] Lancashire Welders Ltd v Harland & Wolff Ltd (1098).
55Two questions arise on an application for judgment on admissions. First, whether the defendant has made a clear and unambiguous admission that the plaintiff is entitled to the judgment he claims. Second, the power to order judgment on admissions being discretionary, whether the order sought by the plaintiff would be a proper exercise of the power.[28]
[28] Moon v Mun [2013] NSWCA 217 [40] ‑ [44] as cited with approval in Halford v Halford [No 2] [22].
56By pars 8 and 10 his defence, the defendant admits that the Property belongs to the plaintiff and the defendant in equal shares, and that the plaintiff is entitled to an order for the sale of the Property.
57Since the admission is made on the pleadings, there is no question that should arise as to whether this court accepts or rejects evidence of the alleged admission.[29]
[29] Halford v Halford [No 2] [23].
58The issue of contention between the parties is whether the order for the sale of the Property would be proper in the circumstances.
59The plaintiff submitted that the order for sale should be made because doing so would reduce the issues for trial and the length of any hearing in relation to the remaining issues.
60The remaining issue on the pleadings concerns each party's entitlement to chattels and partnership property that were acquired over 30 years ago. The plaintiff submitted that to the extent that the defendant wishes to maintain an entitlement to the chattels and partnership property, the matter could be dealt with separately as part of the action as appropriate.
61The chattels were acquired over 30 years ago. As the plaintiff submitted, given the passage of time, it is difficult to see what chattels would still exist and have value. Accordingly, it appears that the only real remaining issue in the action relates to the proceeds of the Property. As such, it is expedient for the Property to be sold so that the proceeds may be divided according to parties' entitlement as tenants in common in equal shares.
62The defendant submitted that the land of the Property is subject to division but not the dwelling house, which belongs to the defendant. The plaintiff therefore makes an erroneous assumption, the defendant contended, to regard the land and the Property as synonymous. The distinction drawn by the defendant is untenable. The house is a fixture that forms part of the land. The land and the Property are synonymous.
63The defendant further submitted that this court has acknowledged his position in respect of the land and the Property by the various orders that have been made in earlier proceedings. Despite a general assertion that the court has acknowledged the defendant's position, the defendant has failed to identify the 'various orders' that supposedly support his position. The defendant's submission is totally inconsistent with the summary judgment, the result of the appeal and the Full Court's clear rejection of the matters pleaded in the minute of proposed counterclaim.[30]
[30] See minute of proposed counterclaim filed 20 September 1991 [14], [28], prayer for relief [1(a)].
64The defendant reagitated the allegation previously made before this court that the accounts of the partnership did not reflect the true financial position in respect of the contributions made by each partner and that Ms Littlely obtained a greater financial advantage than she was entitled to. He submitted that the taking of accounts and the holding of an inquiry in respect of partnership funds and assets would reveal that the plaintiff is indebted to the defendant. The defendant further alleged to the effect that Ms Littlely had been making secret and undisclosed profits involving the defendant's personal funds and partnership monies.[31]
[31] Defendant's Submissions [43] - [44].
65The Full Court in its decision on the s 43 referral did not allow the defendant to agitate these allegations by way of counterclaim. That decision precludes the defendant from pressing the allegations in these proceedings.
66The defendant sought to defeat the plaintiff's application by relying on the defences of estoppel and laches. The defendant's position is that the plaintiff should be estopped from asserting any rights over the Property because of Ms Littlely's acquiescence in accepting payments for 20 years and the failure to prosecute her rights.[32] The defendant's submissions in this regard are not sustainable. The defendant could have progressed the matter; instead, he chose to continue making the $500 payments. The defendant's extensive submissions as to the evidence do not refer to the sale of the land but to the taking of accounts.
[32] Defendant's Submissions [50] - [55], [68] - [69].
67Further, the defendant's submissions to the effect that I should draw an adverse inference against the plaintiff because of Ms Littlely's failure to prosecute her claim has no substance. The defendant was paying rent and continued to pay interest. The most that can be said is that it appears that it suited both parties for the status quo to continue.
68I do not accept that it would be in the interests of justice to make a decision in favour of the defendant.
69I have concluded that the appropriate resolution of this matter is to proceed under O 30 r 3 of the Rules.
70The admissions are unequivocal and entitled the plaintiff to an order. Case management will be greatly enhanced by the sale of the land. It will remove a large part of the claim from the proceedings. It seems doubtful, if not impossible, that accurate accounts could be obtained at this time, being over 35 years since proceedings were initiated.
71I accordingly make orders for the sale of the Property in terms set out in the annexure to these reasons.
ANNEXURE A
IN THE SUPREME COURT OF WESTERN AUSTRALIA
CIV/2145/1990
BETWEEN:
Michael Charles LITTLELY as Executor of the Estate of the late Elspeth Mary LITTLELY Plaintiff
AND
Leslie Raymond GARD Defendant
ORDERS OF THE HONOURABLE JUSTICE CURTHOYS
MADE ON 22 NOVEMBER 2022
UPON APPLICATION of the plaintiff by chamber summons filed on 15 December 2021 and by supporting submissions filed 21 March 2022 for an application for judgment on admissions made by the defendant in pleading his defence pursuant to the Rules of the Supreme Court 1971 (WA) O 30 r3(1), AND UPON HEARING Ms R R Joseph of counsel for the plaintiff and Mr A Sidhu for the defendant on 30 May 2022, IT IS ORDERED THAT:
1.The property known as 30 Thorne Road, Hacketts Gully, being Lot 10 on Diagram 51932 and being the whole of the land comprised in Certificate of Title Volume 1489 Folio 339 (the Property) be sold free of encumbrances.
CONDUCT OF SALE
2.The plaintiff have conduct of the sale of the Property in accordance with the following:
(a)as soon as practicable the plaintiff shall engage in the name of the plaintiff and the defendant a licensed real estate agent to act on such sale (Agent);
(b)the plaintiff cause the Agent appointed by the plaintiff:
(i)to recommend a reserve price for the sale of the Property;
(ii)to adopt the reserve price recommended by the Agent as a reserve for the sale of the Property;
(iii)to market, advertise and offer the Property for sale by way of private treaty;
(c)the plaintiff upon being notified by the Agent of the recommended reserve, give notice in writing to the defendant by their solicitors of such reserve;
(d)at any time within the period of 3 months from the date of the Agent's appointment, the Agent may recommend an alteration to the reserve price adopted for the sale of the Property and upon such recommendation being made by the Agent in writing the plaintiff shall adopt the recommended altered reserve price as the reserve and give notice of the same to the defendant in the manner hereinbefore specified;
(e)the defendant have liberty to apply to the Court in respect of the reserve price;
(f)if within 3 months of the date of retainer of the Agent by the plaintiff an offer not below the reserve price and otherwise acceptable to the plaintiff is not received by the Agent, the plaintiff shall request the Agent to provide recommendations in writing as to how the Property is to be marketed by public auction, including the period of advertising, the form of advertising and a recommended auction reserve and thereafter the plaintiff shall cause the Property to be offered at a public auction in accordance with the Agent’s recommendations;
(g)the defendant have liberty to apply to the Court if the defendant seeks any variation to either the reserve price or to the terms or date of such auction;
(h)on any sale of the Property made pursuant to the terms of the Court's orders:
(i)the plaintiff shall be authorised by this order to sign for and on behalf of himself and the defendant any transfers, notice of appointment of agent or other documents necessary to give effect to the sale of the Property;
(ii)any sale shall be pursuant to the current applicable joint terms and conditions for the sale of real estate published by the Law Society of Western Australia and the Real Estate Institute of Western Australia (Inc) unless otherwise ordered by the Court on application by any party;
(i)each party to the action will be at liberty to bid at auction or make offer by way of private treaty for the Property and:
(i)in the event that the party's offer in respect of the Property is accepted, such party need not pay a deposit;
(ii)the successful bidding party's interest in the Property shall be treated on account of payment of the purchase price such that if any party hereto is a successful bidder, then the proportional share of the purchase price (less any commission fees and expenses in respect of such sale) the subject of any contract will be deemed to have been paid on account of the purchase price;
(j) the defendant co-operate fully with the Agent in the sale process and without limiting the generality of the foregoing on reasonable notice of not less than two business days make available the Property for inspections.
3.The net proceeds of sale, after payment of what should be due to any encumbrancer or encumbrancers according to their priorities and of all other proper costs, charges and expenses of the sale, and subject to order 5, be paid into Court to the credit of this action to abide further order.
4.At the time of payment into Court an affidavit by the Agent or auctioneer (as applicable) be filed exhibiting a statement certifying the result of the sale and expenses incurred in connection therewith.
5.
(a)The defendant pay the plaintiff's costs of the application for judgment on admissions to be taxed if not agreed, to be deducted from the net value of the defendant's interest in the Property following sale.
(b)The defendant pay the plaintiff's indemnity costs in relation to that part of the application which pertains to applying for a replacement certificate of title for the Property.
(c)The plaintiff's legal costs in relation to instructing an estate agent to act in the sale of the Property, preparing auction conditions if required, correspondence with the defendant's former solicitors to arrange withdrawal of the caveat over the defendant's undivided half share interest in the Property and other matters associated with the sale be treated as part of the sale of costs of the Property, such costs to be taxed if not agreed.
6.The parties have liberty to apply generally.
7.The remainder of the proceeding is otherwise adjourned pending the sale of the Property.
BY THE COURT
THE HONOURABLE JUSTICE J CURTHOYS
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Associate to the Honourable Justice Curthoys
22 NOVEMBER 2022
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