Porters v Cessnock City Council - [2005] NSWSC 1275

CITATION:
Porters v Cessnock City Council [2005] NSWSC 1275

HEARING DATE(S): 6 December 2005

JUDGMENT DATE :

6 December 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Purchaser entitled to balance of proceeds of sale, minus amount purchaser obliged to pay to complete sale.

CATCHWORDS:
PROCEDURE – Supreme Court procedure – proceedings where deceased person’s estate has an interest, but is not represented – circumstances when appropriate to proceed in absence of any legal personal representative – EQUITY – equitable charges and liens – purchaser’s lien for amounts paid towards purchase price of land – when available – EQUITY – general principles and maxims of equity – equity regards as done that which ought to be done – terms contract for sale of land not completed in vendor’s lifetime – no legal personal representative of vendor appointed – beneficiaries uncontactable – strenuous efforts by purchaser to identify legal personal representative and contact beneficiaries unsuccessful – land sold for payment of rates – entitlement of purchaser to interest in proceeds of sale of land – SUCCESSION – EXECUTORS AND ADMINISTRATORS – proceedings concerning property in which deceased estate has an interest – no legal personal representative appointed – when such proceedings may be heard notwithstanding absence of legal personal representative – enforcement of contract for sale of land entered by deceased against estate assets – operation of doctrine of conversion in deceased estates

LEGISLATION CITED:
Civil Procedure Act 2005
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

CASES CITED:
In Re Anstis (1886) 31 Ch D 596
Booth v Commissioner of Taxation (Cth) (1987) 164 CLR 159
Borough of Drummoyne v Hogarth (1907) 23 WN (NSW) 243
Chan v Cresdon Pty Ltd (1989) 168 CLR 242
Chronopoulos v Caltex Oil (Australia) Pty Ltd (1982) 70 FLR 8
Combe v Swaythling (Lord) [1947] Ch 625
Curtius v Caledonian Fire and Life Insurance Co (1881) 19 Ch D 534
De Beers Consolidated Mines Limited v British South Africa Company [1912] AC 52
Frederick v Frederick (1721) 1 P Wms 710; 24 ER 582
Frederick v Frederick (1731) 2nd edition 1 Bro PC 253; 1 ER 549
In Re Gillott's Settlement; Chattock v Reid [1934] 1 Ch 97
Hewett v Court (1983) 149 CLR 639
Hoddel v Pugh (1864) 33 Bev 489; 55 ER 458
Manchester Brewery Company v Coombs (1901) 2 Ch 608
May v Newton (1887) 34 Ch D 347
McIntyre v Gye (1994) 51 FCR 472
Palette Shoes Pty Ltd (In liq) v Krohn (1937) 58 CLR 1
Roger v Harrison [1893] 1 QB 161
Walsh v Longdale (1882) 21 Ch D 9
Webster v British Empire Mutual Life Assurance Company (1880) 15 Ch D 169
Whitbread & Co Limited v Watt [1901] 1 Ch 911
Whitbread & Co Limited v Watt [1902] 1 Ch 835

PARTIES:
Iris Mary Porters - Plaintiff
Cessnock City Council - Defendant

FILE NUMBER(S):
SC 4578/05

COUNSEL:
N Francey - Plaintiff

SOLICITORS:
Emery Partners - Plaintiff
Cleaves Mallik Gibbs - Defendant

LOWER COURT JURISDICTION:

IN…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWSC 1275
Decision Date: 6 December 2005

CaseChat Overview and Summary

Porters, as the purchasers, filed an application against Cessnock City Council, the council, seeking to enforce an equitable charge over the estate of the deceased vendor. The dispute centred around the enforceability of a purchaser's lien over the land, where the vendor had died before completing the sale, and no legal personal representative or contactable beneficiaries were available. The Supreme Court of New South Wales was tasked with determining whether the court could proceed with the matter in the absence of a legal personal representative and whether the purchaser could claim an interest in the proceeds of the land sale. The court was also required to consider the equitable maxim "equity regards as done that which ought to be done" and the enforcement of contracts for the sale of land against estate assets, despite the doctrine of conversion in deceased estates.

The primary legal issues involved the availability of a purchaser's lien when the vendor dies before completing the sale, the applicability of the equitable maxim, and the court's jurisdiction to proceed with the matter in the absence of a legal personal representative. The court had to determine whether the purchaser could enforce the equitable charge over the deceased vendor's estate and if the doctrine of conversion in deceased estates should apply to prevent the enforcement of the contract.

The court held that the doctrine of conversion in deceased estates did not prevent the enforcement of the contract for the sale of land. The court could proceed with the matter in the absence of a legal personal representative if strenuous efforts had been made to identify and contact the beneficiaries. The court found that the purchaser had made significant efforts to contact the beneficiaries and, in the absence of a legal personal representative, the court could proceed with the matter. The court also applied the equitable maxim "equity regards as done that which ought to be done" and found that the purchaser was entitled to an interest in the proceeds of the land sale.

The court ordered that the purchaser was entitled to an equitable charge over the land, and the proceeds of the sale would be applied to satisfy the purchaser's claim. The court also ordered that the purchaser's lien was enforceable against the estate of the deceased vendor, and the purchaser was entitled to an interest in the proceeds of the land sale.

Orders