Reynolds v Medway
[2013] NSWSC 206
•15 March 2013
Supreme Court
New South Wales
Medium Neutral Citation: Reynolds v Medway [2013] NSWSC 206 Hearing dates: 15 March 2013 Decision date: 15 March 2013 Jurisdiction: Equity Division Before: Sackar J Decision: See paragraph [56]
Catchwords: PARTNERSHIP - dissolution and winding up - whether conduct or words of the plaintiff amounts to requisite notice of intention of dissolution.
REAL PROPERTY - statutory trust for sale of co-owned property - whether there is an agreement between the parties justifying a refusal of s 66G orders.Legislation Cited: Conveyancing Act 1919
Partnership Act 1892Cases Cited: Bova v Avati [2009] NSWSC 921
Hogan v Baseden (1997) 8 BPR 15,723
Ngatoa v Ford (1990) 19 NSWLR 72
Ryder v Frohlich [2004] NSWCA 472
Williams v Legg (1993) 29 NSWLR 687
Yard v Yardoo Pty Ltd [2007] VSCA 35Category: Principal judgment Parties: Michael Gerard Reynolds (Plaintiff)
Gregory Paul Medway (Defendant)Representation: Counsel:
M K Rollinson (Plaintiff)
In person (Defendant)
Solicitors:
KP Lawyers & Barristers (Plaintiff)
In person (Defendant)
File Number(s): 2012/359148
EX TEMPORE Judgment (revised 18 March)
Proceedings
Michael Gerard Reynolds (the Plaintiff) filed a summons on 19 November 2012 seeking orders for the appointment of a trustee, Murray Godfrey (the Trustee) to sell the land situated at 220 Neill Street, Murrumburrah, Folio Identifier 2/1080535 (the Property) for the purpose of bringing to an end his partnership with Gregory Paul Medway (the Defendant). The particular relief claimed in the summons includes:
(1) an order that the Trustee be appointed as trustee for the sale of the Property;
(2) an order that the Property be vested in the Trustee for sale in accordance with Division 6 of Part 4 of the Conveyancing Act 1919;
(3) an order that either party is entitled to purchase the Property; and
(4) an order that if either party purchases the Property, its entitlement to the proceeds is to be set off against the sale price of the Property.
The Plaintiff seeks other relief, including costs. However, as noted in his written submissions, the only relief sought at this stage is that specified in the first four paragraphs of his summons, as set out above.
Background facts
The Plaintiff first met the Defendant in 2004 at a seminar hosted at the Defendant's office in Bowral, where they both expressed an interest in property development. In the weeks following this meeting, the Plaintiff and Defendant agreed to form a partnership to purchase the Property, which was for sale at that time.
In around April or May 2004 the Defendant made an offer of $350,000 which was accepted, and on settlement of the transaction around June 2004, the parties became (and presently remain) the registered proprietors of the Property as tenants in common in equal shares.
According to the Plaintiff, the parties' intention was to renovate the Property with a view to leasing it, and to eventually commence development. The Property is about 2.4 acres in area, and included a house that had six bedrooms that were in a state of disrepair and in need of renovation, an old millhouse, two concrete silos, three wooden silos, a flour processing building, offices, open area, and two sheds. The Defendant alleges that they agreed to "explore all of the property's commercial opportunities", that the costs and expenses would be divided equally, and that the Plaintiff agreed to keep and maintain control over the partnership's accounts.
The partnership between the Plaintiff and Defendant involved more than just the Property. At the time the Property was purchased, the Plaintiff and the Defendant also purchased in partnership, in equal shares, four blocks of land, namely lots 1, 2, 3, and 4 in DP 774826 at the corner of Clarke and Iris Street, Harden (the Harden Blocks). Each block of land was for $23,000.
The Property and the Harden Blocks were financed in a number of ways. In his affidavit, the Plaintiff identifies his sources of finance as being a line of credit from Westpac Banking Corporation for $150,000 which he used to finance part of his interest in the Property; a loan secured by a mortgage over the Harden Blocks from the Bank of Western Australia (BankWest) to the Plaintiff and Defendant for $48,000 which was used to complete the purchase of the Harden Blocks; a loan secured by a mortgage over the Property from BankWest to the Plaintiff and Defendant for $110,000 of which the Plaintiff received $55,000; and cash from other sources. The Defendant on the other hand alleges he paid $175,000 towards the purchase price of the Property from his cash resources and did not need to borrow funds to do this.
In their affidavits, the Plaintiff and Defendant appear to accept that the Property was in need of renovation to render it fit for leasing.
The Plaintiff contends that he conducted substantial renovations costing about $60,000, through his own expense and labour over a period of almost one and a half years. He says that the Defendant contributed to the renovations financially, but not by way of labour. The Defendant says in his affidavit that he paid 50% of the costs of the renovation. He accepts that the Plaintiff performed the work on the renovation of the Property, but alleges this was agreed between them. He also alleges that there was unwanted machinery and a free standing shed on the Property, which he personally dismantled and arranged the sale of for $35,000 and $110,000 respectively for the partnership.
Once renovations were complete in around early to mid-2006, one section of the millhouse was leased out for $180 per week, and a smaller section of the millhouse was leased for a total of somewhere between $80 and $100 per week. The parties appear to accept that the rent was used to service the loan from BankWest and to meet rates and insurance expenses. The Defendant alleges that there was also a shed on the Property which was rented out, though he has not seen any lease document nor is he aware of the amount of rent received.
The Plaintiff asserts that around 2008, the Defendant was in arrears with his repayments on a loan from BankWest and was experiencing financial difficulties due to divorce proceedings (though the Defendant denies this). According to the Plaintiff, the Defendant decided that, to alleviate his financial difficulties and by way of compensation to the Plaintiff for his labour in completing the renovations in the Property, he would sell to the Plaintiff his interest in the Harden Blocks for $40,000. The transfer took place on 22 August 2008. The Defendant accepts that he conveyed his interest in the Harden Blocks to the Plaintiff for the purpose of compensating the Plaintiff for his contribution to the renovations of the Property, and also to "lower [his] debt level at the time".
The Plaintiff asserts that from about that time, he and the Defendant rarely, if ever, met. The Defendant does not appear to deny this, but says that they communicated regularly by phone. The Plaintiff says that whenever the rent was insufficient to service the loan from BankWest and to meet rates and insurance expenses, the shortfall was met by his personal savings. The Plaintiff estimates this to be approximately $20,000 to $30,000.
The Defendant asserts in his first affidavit that in mid-2010 he had a phone conversation with the Plaintiff in which they discussed selling the property. He also asserts that the Plaintiff agreed to allow the Defendant one to two years to redevelop the Property as an educational complex. This was, according to the Defendant, followed by a period of silence (until late 2011, when he received correspondence from a solicitor, Paul Wakim, acting for the Plaintiff, raising concerns the Plaintiff had about the financial viability of the Property and indicating that the Plaintiff may wish to sell it). I note that in submissions today, Mr Medway informed the Court that he has arranged for a visit in the near future to the Property by some persons who may be interested in redeveloping the Property into an educational complex. I have no further detail in relation to this arrangement, and in any event, it has no bearing on the arrangement between the parties.
In his second affidavit, the Defendant provides a somewhat different version of events. He says that prior to mid-2010 the Plaintiff expressed a desire to sell his share in the Property, and that during the conversation which took place in mid-2010, the parties agreed that sale of the Plaintiff's share would be handled by the Defendant over the next one to two years.
The Plaintiff says that around mid-2011 he made a complaint to the Consumer and Tenancy Tribunal seeking to evict the tenants occupying the smaller section of the millhouse because they were in arrears on rental payments, disruptive to the tenants occupying the larger section, and had placed graffiti on the millhouse. Following eviction, both the Plaintiff and Defendant appear to accept that they both attended the Property to conduct renovations over a period of about four weeks.
The Plaintiff asserts that from about August 2011, the Defendant and a Ms Robyn Cooper started moving their belongings into the small section of the millhouse, and by October or November of 2011 they had moved in permanently, but have not made any rental payments. The Defendant denies this and says that, whilst he periodically travelled to the Property to conduct repairs and renovations, he and Ms Cooper only moved in on 19 December 2011.
In late November 2011, Mr Wakim, a solicitor acting for the Plaintiff, sent two letters to the Defendant, as previously described. In his second affidavit, the Defendant alleges that after receiving these letters, he heard nothing further from Mr Wakim, and that the Plaintiff continued to discuss "future plans for the commercialisation of the Property".
The Plaintiff alleges that some time in 2012 a long-standing tenant occupying the four-bedroom section vacated the Property because the Defendant and Ms Cooper had been speaking rudely to the tenant's children and partner. The four-bedroom section remained vacant for several weeks, resulting in loss of rental income of about $3,280 in total. The Defendant denies this and says the tenants vacated to seek cheaper rental.
The Defendant alleges that around February or March 2012, the parties again discussed redeveloping the Property into an educational college. He says it was agreed they "should fix up the offices and hire someone to attract potential investors, and to promote the idea of redeveloping the Property as a commercial enterprise, for example as an educational college". In his second affidavit, the Defendant adds that the parties "did not discuss nor settle upon a timeframe for the proposal [nor] agree that the proposal would be discontinued if it had not been finalised by the present time". The Plaintiff has not filed an affidavit in response denying this.
The Plaintiff alleges that upon visiting the Property in April or May of 2012, he found that the Defendant had brought a new occupant, Mr Azam Ashead, to work and live in the office area without paying rent to the partnership. The Defendant alleges that the Plaintiff "was aware" that Mr Ashead would be staying in one of the offices on the Property while he worked for the partnership for the purpose of "[promoting] the idea of a total redevelopment" and to "sound out potential investors". He also alleges the Plaintiff agreed to have a further meeting on 16 April 2012 at the Property to discuss the Defendant's "redevelopment proposal".
The Plaintiff alleges that during one of his meetings with the Defendant to discuss the financials of the partnership he had to leave because Ms Cooper started to become abusive towards him (this appears to be the 16 April 2012 meeting). According to the Defendant, the Plaintiff left the meeting early because he had other commitments. Also during this meeting, the Plaintiff accepts that the Defendant said to him that he had repaired three rooms in the Property in the four week period prior to the meeting. The Defendant asserts that he did repair three offices.
The Plaintiff alleges that towards the end of June 2012, he again visited the Property with his son to check its condition, mow the lawns and make the Property more presentable for leasing. Again, the Plaintiff says that during this visit, Ms Cooper became abusive to the Plaintiff, and he eventually acquired on an interim basis an Apprehended Violence Order in the Local Court at Moss Vale by an application filed on 26 October 2012 against Ms Cooper. However no final order was made and none presently exists.
The Plaintiff wishes to discontinue the partnership with the Defendant, and alleges that the sum of $17,084.40 is owing to him as money which he has spent on the Harden Blocks between 1 July 2007 and 7 November 2011, and that a total of $26,000 is owing by way of council rates. In his first affidavit, the Defendant responds that he has not received from the Plaintiff any invoices, bills or cheque butts which could account for the expenditure.
The Defendant apparently continues to reside in the Property without paying any rent or making any payments towards council rates or the BankWest loan secured against the Property. The Defendant does not deny this. However, he says first that in any event the section of the millhouse which he occupies is not capable of being rented commercially because it needs to be fenced off from another part of the Property, and secondly that the default notice issued by BankWest cannot be enforced pending a dispute in relation to the bank's fees which he says is being dealt with by the Financial Ombudsman Service.
The issues
The Plaintiff contends that the partnership was entered into for an undefined period of time, and came to an end either by virtue of letters dated 21 and 29 November 2011 sent from his solicitor, Paul Wakim, or by reason of the service of the summons in the present proceedings. If this is so, it would follow that the Plaintiff is entitled to have the partnership property sold as a consequence of dissolution.
Alternatively, the Plaintiff submits that he is entitled to orders for the appointment of a trustee and the sale of the Property under s 66G of the Conveyancing Act as of right (and therefore, apparently, that no agreement between the parties, partnership or otherwise, can detract from that right).
In his affidavit dated 15 February 2013, the Defendant alleges that the Plaintiff agreed to allow the Defendant one to two years to redevelop the Property as an educational complex. The Plaintiff first denies any such agreement, and says that in any event one to two years has long gone by without any progress. The Defendant proposes, as an alternative to the orders proposed by the Plaintiff, that either:
(1) the Defendant purchases the Plaintiff's interest in the Property for a mutually agreeable price, once the Defendant has ascertained the current financial position of the partnership; or
(2) the millhouse be partitioned from the rest of the Property and title to the millhouse be transferred to the Defendant, with the Plaintiff retaining title to the remainder of the Property.
It is not necessary at this stage to deal with the issues of accounting between the partners. At present, I am only concerned with whether the partnership has come to an end, and whether the Plaintiff is entitled to have the Trustee appointed for the sale of the Property.
Legal principles and discussion
The parties accept that they entered into partnership. This is not in dispute. In relation to the dissolution of a partnership, the Partnership Act 1892, Part 2 (Partnerships generally), Division 4 (Dissolution of partnership) relevantly provides:
32 Dissolution by expiration or otherwise
Subject to any agreement between the partners, a partnership is dissolved:
(a) If entered into for a fixed term, by the expiration of that term:
(b) If entered into for a single adventure or undertaking, by the termination of that adventure or undertaking:
(c) If entered into for an undefined time, by any partner giving notice to the other or others of the partner's intention to dissolve the partnership.
In the last-mentioned case the partnership is dissolved as from the date mentioned in the notice as the date of dissolution, or, if no date is mentioned, as from the date of the communication of the notice.
This provision expressly states that the ability of a partner to dissolve a partnership may be restricted by the terms of the partnership agreement.
It is therefore necessary to first determine whether, on the evidence available, the partnership was for a fixed term or for a single adventure or undertaking, or whether there was any other agreement restricting Plaintiff's ability to dissolve the partnership. I will then consider the effect, if any, of the letters of Mr Wakim and the filing of the present summons on the partnership arrangement. Finally, I will consider whether, in the circumstances, the Plaintiff is entitled to orders for the sale of the Property under s 66G of the Conveyancing Act.
In the present case, there is no written partnership agreement between the Plaintiff and the Defendant. I will quote in some length the Defendant's evidence at paragraphs [15]-[17], [25] and [27] of his first affidavit, as these paragraphs are relevant to defining the agreed duration, if any, of the partnership:
[15] In mid-2010, Mr Reynolds and I had a phone conversation in which we discussed selling the property. During this conversation I recall saying words to the effect:
Defendant: We have had no offers on the property for six years. I think we should get someone interested in redeveloping the property. I am in the education industry and I think one of the options could be redeveloping the Property as an educational complex.
Plaintiff: How long will you need?
Defendant: One to two years.
Plaintiff: Ok.
[16] I understood from that conversation that the Plaintiff and I had agreed to continue in partnership in respect of the Property for at least two years from the middle of 2010.
[17] Mr Reynolds and I had further discussions about my proposal over the phone. I then did not hear from Mr Reynolds for a period of time in late 2011 until I received the correspondence from his solicitor, Paul Wakim...
...
[25] ... In or around February or March 2012 I once again discussed redeveloping the Property as an educational college with Mr Reynolds. I recall saying words to the effect:
"We should fix up the offices and hire someone to attract potential investors, and to promote the idea of redeveloping the Property as a commercial enterprise, for example as an educational college."
Mr Reynolds agreed to this proposal and consequently I hired Mr Azam...
Mr Reynolds and I agreed to discuss my redevelopment proposal further at a face-to-face meeting on 16th April 2012.
...
[27] ... [A]t the meeting on the 16th April 2012 Mr Reynolds and I discussed certain matters relating to the partnership.
The Defendant then said in his second affidavit at [3]-[5]:
[3] I refer to paragraph 15 of my first Affidavit and I say that over a period of time prior to our phone conversation in mid-2010, Mr Reynolds has expressed to me a desire to sell his half share of the Property. ... We agreed that I would handle the sale, and that I would be given one to two years to procure it. One possible way to sell Mr Reynolds' share which we discussed was redeveloping the property as an educational complex.
[4] I refer to paragraph 17 of my first Affidavit and I say that...I continued to have discussions about future plans for the commercialization of the Property after Mr Reynolds instructed Mr Wakim.
[5] I refer to paragraph 25 of my first Affidavit and I say that Mr Reynolds and I did not discuss or settle upon a timeframe for the proposal. We certainly did not agree that the proposal would be discontinued if it had not been finalised by the present time
The Defendant, in effect, relies on this evidence to assert at best that:
(1) in mid-2010 there was an agreement between the parties that the partnership would continue for one to two years;
(2) the letters of Mr Wakim did not have the effect of bringing the partnership to an end; and
(3) in February or March 2012 the parties further agreed that the partnership would continue for the purpose of developing an educational college.
In his written submissions, the Plaintiff disputes the existence of any agreement to a minimum duration, and says that in any event, the evidence would, if accepted at its highest, only support the existence of an informal agreement in mid-2010 that the Defendant would be given one or two years to organise a redevelopment of the property as an educational complex, and that such time has passed.
In my view, it is not necessary to make a finding as to whether there was a term that the partnership would continue for a minimum period of two years from mid 2010. That time has long gone. It is however necessary to consider whether the conversation which the Defendant alleges took place in February or March of 2012 constitutes some form of agreement that the partnership would not be terminated before a particular time.
It seems clear to me on the evidence that the parties did not fix a time for the duration of the partnership, nor did they specify a particular date after which the partnership would come to an end. It seems to me that the only argument available to the Defendant is that his conversation with the Plaintiff in February or March 2012 amounted to an agreement entered into for a single undertaking, namely the redevelopment of the Property into some educational complex. For the reasons which follow, I do not accept that the partnership was for a single undertaking.
First, the parties had acquired other properties, namely the Harden Blocks, and therefore it cannot be said that the parties had entered into partnership for the single adventure or undertaking of developing the Property into an educational complex. Secondly, at the time the parties entered into partnership, there was no specificity as to the business to which the Property would be put, and in the Defendant's words, the parties simply wanted to "explore all of the Property's commercial opportunities". Third, even after the alleged conversation in February or March of 2012, the Defendant, in his own evidence, still describes the redevelopment as a "proposal". There was simply no agreement to undertake any specific work in relation to the Property.
Accordingly, I find that there is no term in the partnership agreement presently preventing the dissolution of the partnership by notice. It is therefore necessary to determine whether the Plaintiff has provided notice of intention to dissolve the partnership, within the meaning of s 32 of the Partnership Act.
Although the principles regarding dissolution by notice have not received much detailed judicial consideration in Australia, it is clear that notice of termination may be inferred by conduct (Ryder v Frohlich [2004] NSWCA 472 at [148]-[152] per McColl JA), and that the institution of a proceeding for the dissolution of a partnership may stand as notice of intention to dissolve the partnership, and that, if an order for dissolution is made, the dissolution is to date back to the date of the writ (Yard v Yardoo Pty Ltd [2007] VSCA 35 at [104] per Nettle JA).
I have reviewed the letters sent by the Plaintiff's solicitor which are said to constitute notice of intention of dissolution. In the letter of 21 November 2011, the Plaintiff's then solicitor relevantly said:
My client has formed the opinion that should the partnership continue to operate in its present form, there will be dire financial consequences...
To minimise the ongoing losses, my client requires that you agree to the second flat in the residence to be immediately offered for rent by a local agent...
The letter then goes on to advise the Defendant that the Plaintiff is prepared to accept an offer by the Defendant to acquire the Plaintiff's share in the Property on certain conditions, and that if this proposal goes ahead, and the conditions associated with it are not met, a trustee will be appointed to sell the Property. At best, this letter indicates that the Plaintiff may, at some future time, and depending on what takes place, seek to dissolve the partnership.
The second letter dated 29 November 2011 is in generally strong terms, and threatens the appointment of a trustee to sell the Property, but does suggest that the partnership is at an end.
The Defendant responded to these letters by email dated 29 November 2011 to the Plaintiff's solicitor. The response indicates that there has been some discussion between the parties about a sale of the Plaintiff's share in the Property.
In my view, this correspondence indicates that the parties, whilst not dissolving the partnership, were not getting along. But I think it is clear, from the authorities cited above, that the partnership would have come to an end by the date on which the summons was filed by the Plaintiff, namely 19 November 2012.
There is some authority to the effect that a right to dissolve a partnership must be exercised bona fide (Bova v Avati [2009] NSWSC 921 at [133] per Ward J). I note for completeness that there is no suggestion, nor does the evidence indicate, that the Plaintiff is acting in bad faith in seeking to dissolve the partnership.
The consequences which flow from a dissolution of partnership are specified in s 39 of the Partnership Act:
On the dissolution of a partnership every partner is entitled, as against the other partners in the firm, and all persons claiming through them in respect of their interests as partners, to have the property of the partnership applied in payment of the debts and liabilities of the firm, and to have the surplus assets after such payment applied in payment of what may be due to the partners respectively after deducting what may be due from them as partners to the firm; and for that purpose any partner or the partner's representatives may, on the termination of the partnership, apply to the Court to wind up the business and affairs of the firm.
Therefore on dissolution the Plaintiff is entitled to have the partnership property sold and applied in accordance with s 39. Given my finding that at least from the time the Plaintiff filed the summons to commence the present proceedings the partnership was dissolved, the Plaintiff is entitled in principle to the relief he seeks in paragraphs 1 to 4 of the present summons.
The next issue raised for consideration is whether, regardless of the status of the partnership, the Plaintiff, as a co-owner of the Property, is entitled to have a trustee appointed to sell the Property in accordance with s 66G of the Conveyancing Act. It is unnecessary to set out the text of this lengthy provision. In effect, it provides for any co-owner of property (other than chattels) to apply to the court for the property to be sold or possibly partitioned. The primary right is for sale and if a co-owner wants partitioning in lieu of sale then that party must show that the commercial and other relevant interests provides good reason for the partition.
In written submissions, the Plaintiff appears to assert that the right of a co-owner to seek orders for sale is one of right, independent of, and therefore unfettered by, any agreement between the parties. This is not however entirely correct.
In Ngatoa v Ford (1990) 19 NSWLR 72, Needham J said that the wording of s 66G (in particular the use of the word "may") conferred a limited discretion on the court to refuse to make an order under that section. In that case, Needham J dismissed a summons seeking orders under s 66G in circumstances where there was an existing partnership agreement in place between the parties that contained a clause which specified the procedure to be followed by a partner seeking to dispose of their share in the partnership property. His Honour held that contractual limitation on the disposal of an interest in the property is a proper matter to be taken into account in the exercise of the court's discretion. His Honour said (at 77):
It is not, I think, desirable that one should attempt to define exhaustively the circumstances in which an order may be refused; judicial experience is that such matters should be resolved on a case by case basis. My opinion is, however, that a contractual limitation upon the exercise of the right, provided it does not fall within the principle of Hall v Busst (1960) 104 CLR 206 [i.e. the law will not enforce an impermissible restraint on alienation], is a proper consideration to be taken into account in such applications.
The next question is whether the facts of the present case bring it within that principle. In my opinion, they do. The making of an order for sale in the present case would be inconsistent with the rights of the defendants under cl 4 of the deed. Clause 3 provided the circumstance in which the plaintiff might dispose of his interest in the land. It is not a valid distinction to say that the plaintiff here is not seeking to sell his share, but the whole of the land. The effect is the same.
For these reasons I dismiss the summons.
Needham J's decision was approved by Handley, Sheller and Cripps JJA in Williams v Legg (1993) 29 NSWLR 687, where the court said (at 691-692):
The cases are referred to and discussed in the judgment of Needham J in Ngatoa v Ford (1990) 19 NSWLR 72. We are indebted to his Honour's research and analysis. We agree with his conclusion that there are circumstances in which an application made by a person entitled to do so can, as a matter of discretion, be refused by the court.
Their Honours elaborated (at 693):
the section could not be intended to require a court to extend relief to one who is putting forward a claim for what is equitable assistance merely to enable that party thereby to escape contractual obligations. "To do so would be to disregard the well-established rule of equity that he who seeks equity must do equity." For present purposes in describing the ambit of the discretion it is sufficient to say that it enables the court to refuse an order for sale where the order would be inconsistent with some proprietary right, or some contractual or fiduciary obligation...
In Hogan v Baseden (1997) 8 BPR 15,723, Mason P observed that:
It would not be a proper exercise of the power to decline relief under s66G of the Conveyancing Act to refuse an application on grounds of hardship or general unfairness... It follows that in the unhappy event that the parties are unable to settle their differences then the making of an order appointing trustees for sale seems inevitable unless the respondent could establish a legally binding agreement not to put her out of occupation of her home, or circumstances that would ground some estoppel to similar effect. On either issue the Court would need to address at least four questions: first, whether anything that was said on the particular topic was intended to have legal effect; secondly, whether any arrangement or understanding (if legally effective) it was intended to apply in the circumstances which happened following the breakdown of amicable relations between the parties; thirdly, whether any agreement or understanding was subject to a condition that the respondent would dispose of her remaining interest in the property in any particular way upon her death; fourthly, whether the rights (if any) of occupancy reserved to the respondent under such arrangement (if it existed) were in the nature of a life estate or a right of residence terminable upon the respondent vacating occupancy for any reason.
Nothing in the facts of the case before me would present answers to any of Mason P's questions that would justify a refusal of orders under s 66G. As I have already noted, there is no agreement between the parties which would be breached in the event that orders were made under s 66G. The Defendant's residence in the Property is not pursuant to any arrangement such as a life estate or otherwise.
Conclusion
In my view the present situation is, as Mason P described it, an "unhappy event [where] the parties are unable to settle their differences". I propose to grant the relief in principle sought for the appointment of trustees for the sale of the Property. Mr Rollinson, Counsel for the Plaintiff, drew my attention today to s 66G(3) of the Conveyancing Act, which relevantly provides that where the trustee appointed is an individual, there must be at least two (but no more than four) individuals so appointed. The evidence is currently inadequate in that regard. Mr Rollinson indicated he would be prepared to file further material to remedy the inadequacy, and I propose, upon receipt of such material, to make formal orders in chambers. I therefore:
(1) give leave to the Plaintiff to file, within the next 14 days, an amended summons and further material for the purpose of complying with requirements under s 66G(3) of the Conveyancing Act in relation to the appointment of individual trustees;
(2) order, upon the Plaintiff filing a proposed amended summons and further affidavit of an appropriate person willing to act as trustee, the statutory sale of the Property under s 66G of the Conveyancing Act;
(3) order the Defendant to pay the Plaintiff's costs to date of the Plaintiff's summons; and
(4) give the parties liberty to apply to the Court on one day's notice.
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Decision last updated: 18 March 2013
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