Mitchell v Southwell

[2006] NSWSC 664

CITATION:	Mitchell v Southwell [2006] NSWSC 664
HEARING DATE(S):	26 June 2006
JUDGMENT DATE :	26 June 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
EX TEMPORE JUDGMENT DATE:	06/26/2006
DECISION:	Interlocutory injunction refused. Plaintiff to pay defendant’s costs.
CATCHWORDS:	REAL PROPERTY – tenants in common – consent order made over three years ago for sale of property – defendant becomes unwilling to co-operate in procedure – appointment of trustees for sale – role of Registrar in carrying through consent orders
LEGISLATION CITED:	Uniform Civil Procedure Rule
PARTIES:	Diane Edna Mitchell (as Tutor for Gladys Edna Southwell) - Plaintiff Ronald Walter Southwell - Defendant
FILE NUMBER(S):	SC 5250/02
COUNSEL:	R Quickenden - Plaintiff
SOLICITORS:	Guardian Lawyers - Plaintiff No Appearance - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

MONDAY 26 JUNE 2006

5250/02 DIANE EDNA MITCHELL (AS TUTOR FOR GLADYS EDNA SOUTHWELL) v RONALD WALTER SOUTHWELL

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application made by the Protective Commissioner. The Protective Commissioner has been placed in charge of the affairs of Gladys Edna Southwell, who is now aged 87.

2 Mrs Southwell, and her son Ronald Southwell, are the registered proprietors, as tenants in common in equal shares, of the property located at 5 Oxford Drive, Lake Haven.

3 Mrs Southwell and her son lived in that property for some years, but they fell out, and she left the property.

4 On 25 October 2002, Mrs Southwell began proceedings against her son, seeking an order that the Public Trustee be appointed a trustee for sale of the property, together with various consequential orders. At that time, Mrs Southwell's daughter, Diane Mitchell, was acting as her tutor.

5 The defendant filed an application with the Guardianship Tribunal on 17 December 2002 seeking appointment of a manager to the plaintiff's assets, and that the Protective Commissioner should be that manager.

6 On 27 May 2003 an agreement was reached in the proceedings in which a trustee for sale had been sought. That agreement came to be embodied in court orders made that day. In broad terms, those orders provided for the plaintiff and the defendant to cooperate in the sale of the property.

7 The orders made provision for the defendant to vacate the property no later than 28 days after exchange of the contracts for the sale of the property. They set out two alternative ways in which the sale could be achieved. One was by a sale by private treaty, the carriage of which was effectively given to the defendant's solicitors. The other was sale by auction. The auction method of sale was agreed to come into effect if contracts for the sale of the property by private treaty had not been exchanged within three months of the date of the making of the orders.

8 There was agreement as to the manner in which the sale by public auction would proceed. The plaintiff was to nominate three auctioneers of which the defendant would select one; the plaintiff's solicitor would effectively have the conduct of the auction. The sale by auction was to take place no later than six weeks after either party gave notice requiring the property to be submitted for sale by auction.

9 There was provision that if the plaintiff and defendant could not agree on a reserve, then the President of the Institute of Valuers would nominate a person who would fix the reserve, and the plaintiff and the defendant would together instruct the auctioneer to adopt that reserve price. There was provision for what was to happen if the property did not reach the reserve and sell, namely that it was to be submitted for auction again.

10 There was provision that if either party failed to act or ignored carrying out the orders the Registrar in Equity was empowered to sign any document or act authorising to give effect to the orders. Liberty to apply was reserved.

11 In the latter part of 2003 there were various attempts made to sell the property, which came to nothing. On Christmas Eve of 2003 a real estate agent who had been engaged wrote to the plaintiff's then solicitor, saying that the defendant has advised that he will not be selling and he will be taking the matter back to court. He did not, in fact, take the matter back to court.

12 These steps took place even though, on 12 June 2003, the Protective Commissioner had been appointed as manager of the plaintiff's estate.

13 There has been a significant period of inaction on the Protective Commissioner's part, concerning the enforcement of the orders, or in some other way obtaining the sale of the property. Today, however, it seeks orders whereby it be appointed as the plaintiff's tutor, and that a consequential amendment be made to the title of the proceedings.

14 Diane Mitchell, the previous tutor, has died, on 16 July 2004. The need for the plaintiff to have a tutor in the proceedings is manifest, if anything is to be done in them, and given that the Protective Commissioner has been appointed as the manager of her estate the appointment of the Protective Commissioner as the tutor is appropriate.

15 The Notice of Motion also seeks the vacating of the orders made on 27 May 2003, and that, in their place, orders be made appointing the Public Trustee as a trustee for sale of the land.

16 The defendant has not appeared at the hearing of the Notice of Motion. However, there is an affidavit on the Court file, which he made on 19 June 2006, where he says unequivocally “I do not wish to comply with the order which the motion relates to.” He asserts, in that affidavit, that circumstances relating to his mother's welfare have greatly changed from the time the order was issued. He refers to the appointment of the manager, says that his mother will have an entitlement from his sister's estate, and says that that will be more than sufficient to look after her welfare. He says that the property at 5 Oxford Drive, Lake Haven, is his home and he has nowhere else to live, that he is 64 years old and has recently suffered a stroke. He requests the Court to “cancel the order”.

17 The order was one which was predicated upon the adherence to a timetable for sale of the property which was quite tight. It was also predicated upon there being cooperation between the parties at all stages of an enterprise which of its nature required close cooperation. The procedures which it laid down for what was to happen if cooperation did not eventuate involved the Registrar of the Court taking action, which the party in default had failed to take.

18 While a Court Registrar can sign documents which a party has been ordered to sign, but fails to sign, or could do some other step which was a purely mechanical or administrative step in carrying through a process that the Court had ordered be carried out, I would not in the ordinary course of things require a Registrar to do a step which involved retaining a valuer to value property, and then instructing an auctioneer to auction a property at a reserve price recommended by the valuer. Those steps involve a potential for expense, and also the need to make a commercial decision which it is not appropriate to ask a Registrar, who is carrying out the administrative steps involved in an order, to carry through. Thus, the orders are not ones of which I would grant specific performance.

19 The contract that underlies the orders is one which is clearly not being performed, and has not been performed for a long time. I am not satisfied, however, that that provides a basis for making an order which simply vacates the orders made on 27 May 2003. The general power to set aside a judgment or order is contained in Uniform Civil Procedure Rule 36.15, which so far as relevant allows an order to be set aside, “if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.”

20 I am not satisfied that, at the time the order was made, any of those descriptions could be applied to it. No other plausible ground for setting aside the order has been advanced.

21 The orders were not ones which made provision for dismissing the summons. In my view, the appropriate course now is to make orders appointing a trustee for sale of the property. In light of the significant delay which there has been, and the personal difficulties to which the defendant has alluded in his affidavit, I would not agree to the Applicant's wish to have the defendant ordered to vacate delivery of the property to the Public Trustee within 30 days. Given the delay which there has been, a period of 180 days for delivery of possession seems to me to be more appropriate.

22 I make orders 1, 2, and 4 in the Notice of Motion filed 11 May 2006. I make order 5, substituting “180 days” for “30 days”. I make orders 6 to 10 inclusive. I order the defendant to pay the plaintiff's costs of the proceedings. These orders may be entered forthwith. I direct that the order be served on the defendant within seven days of today's date.

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