Stoffels v Piper (No 4)
[2024] NFSC 6
•17 October 2024
SUPREME COURT OF NORFOLK ISLAND
Stoffels v Piper (No 4) [2024] NFSC 6
File number(s): SC 1 of 2023 Judgment of: WIGNEY J Date of judgment: 17 October 2024 Date of publication of reasons 21 October 2024 Catchwords: REAL PROPERTY – application for orders to facilitate sale of a co-owned property – where a pre-existing order allowed the Registrar to execute documents to complete the sale – where the defendant continued to obstruct the sale –orders and declarations made confirming the Registrar can facilitate sale
COSTS – application for indemnity costs – where the defendant uncooperative and vexatious – where application otherwise unnecessary – indemnity costs awarded
Legislation: Partition Act 1900 (NSW)
Partition Ordinance 1931-1964 (NI)
Cases cited: Stoffels v Piper [2024] NFSC 2
Stoffels v Piper (No 2) [2024] NFSC 4
Stoffels v Piper (No 3) [2024] NFSC 5
Number of paragraphs: 31 Date of hearing: 17 October 2024 Solicitor for the Plaintiff: J Brown of McIntyres Lawyers Counsel for the Defendant: The Defendant appeared in person ORDERS
SC 1 of 2023 BETWEEN: ERIKA LEE STOFFELS
Plaintiff
AND: ANDREW HARRY PIPER
Defendant
ORDER MADE BY:
WIGNEY J
DATE OF ORDER:
17 OCTOBER 2024
THE COURT DECLARES THAT:
1.The execution by the Registrar of the contract between the Plaintiff, Erika Lee Stoffels, and the Defendant, Andrew Harry Piper, as vendors and Adam James Shorter and Emma Louise Shorter as purchasers dated 16 September 2024 in respect of the sale of the property described as Lot 9 of section 30 portion 75e being the land comprised in Title number 1813 Edition 8, known as 65 Captain Quintal Drive, Norfolk Island (the Property) was and is valid execution of that contract pursuant to order 7 made by the Court on 30 January 2024.
THE COURT ORDERS THAT:
1.The Registrar be permitted and authorised to execute the transfer form, which is attachment JB15 to the affidavit of John Terrence Brown, sworn on 10 October 2024, on behalf of the Defendant, pursuant to order 7 of the Court dated 30 January 2024.
2.The Registrar be permitted and authorised to complete the sale of the Property pursuant to the contract between the Plaintiff and the Defendant as vendors, and Adam James Shorter and Emma Louise Shorter as purchasers, dated 16 September 2024, which is attachment JB16 to the affidavit of John Terrence Brown dated 10 October 2024, pursuant to orders 7, 10 and 11 made by the Court on 30 January 2024.
3.The Defendant pay the Plaintiff’s costs of this application on an indemnity basis.
REASONS FOR JUDGMENT
(Revised from transcript)WIGNEY J
On 30 January 2024, I ordered that the property described as Lot 9 of section 30, portion 75e being the land described in Title number 1813 Edition 8, known as 65 Captain Quintal Drive, Norfolk Island (the Property) be sold pursuant to s 4(1)(b) of the Partition Act 1900 (NSW), in its application to Norfolk Island under the Partition Ordinance 1931-1964 (NI). The Property was and is jointly owned by the Plaintiff, Ms Erika Stoffels, and the defendant, Mr Andrew Piper (also known as Andrew Loveshire). I also made ancillary orders to facilitate the sale of the Property, some of which provided for what should occur if Mr Piper or Ms Stoffels failed to take steps necessary to facilitate the sale of the Property, including the signing of documents. Over nine months have passed since I made that order and the Property has still not been sold. As will be briefly explained in these reasons, that is in large part due to the actions, or inaction, of Mr Piper.
Ms Stoffels has applied for the Court to make orders that will allow for the Property to be sold to prospective purchasers who have signed a contract and paid a deposit in respect of the purchase of the Property. The orders sought by Ms Stoffels include:
That the Registrar execute the Transfer form which is Attachment JB15 to the affidavit of John Terence Brown sworn on 10 October 2024 herein, on behalf of the defendant pursuant to Order 7 herein dated 30 January 2024.
That the Registrar complete the sale of portion 75e in Captain Quintal Drive, Norfolk Island (“the property”) pursuant to the contract between the plaintiff and the defendant as vendor and Adam James Shorter and Emma Louise Shorter as purchaser dated 16 September 2024 (“the contract”), which is attachment JB16 to the affidavit of John Terence Brown sworn herein on 10 October 2024, pursuant to Orders 7, 10 and 11 herein dated 30 January 2024
Mr Piper opposes the making of those orders. Indeed, he contends that the sale should be “stopped” and that the Court should conduct an inquiry into various matters, including why no better offers were sought.
For the reasons that follow, I will make orders along the lines of those sought by Ms Stoffels.
A relatively comprehensive account of the background to the dispute between Ms Stoffels and Mr Piper concerning the sale of the Property may be found in my earlier judgments in this matter: Stoffels v Piper [2024] NFSC 2; Stoffels v Piper (No 2) [2024] NFSC 4; and Stoffels v Piper (No 3) [2024] NFSC 5. These reasons should be read together with those judgments.
As I have already said, I made orders, including ancillary orders, in respect of the sale of the Property as long ago as 30 January 2024. Order 4 of the orders made on 30 January 2024 was in the following terms:
The agent in the first instance shall seek to sell the Property by private treaty for such price as may be agreed between the parties in writing, and failing such agreement, the agent shall offer the Property for sale by public auction, and for that purpose the reserve price shall be the amount referred to above as having been agreed between the parties in writing, and failing such agreement the reserve price shall be the average of market appraisals obtained from each of the estate agents who carry on business on Norfolk Island.
Order 7 of the orders made on 30 January 2024 provided as follows:
The Registrar be authorised to execute all contracts, deeds, documents or paper writings on behalf of the parties in his or her capacity as the proprietors of the Property that are necessary or desirable to effect and complete the sale of the Property in accordance with these orders, in the event that the parties or either of them fail to do so within seven (7) days from the date on which the documents or paper writings are submitted to them for execution.
At the time the orders were made, Mr Piper occupied the Property. One of the ancillary orders was that Mr Piper vacate the Property. He did not comply with that order. As a result, he was convicted of contempt: Stoffels (No 2). On 15 July 2024, the Court punished Mr Piper in respect of that contempt: Stoffels (No 3).
During the hearing on 15 July 2024 in respect of the imposition of a punishment for Mr Piper’s contempt, the following exchange occurred:
MR BROWN: Yes, your Honour. Order 4 of 30 January provides for the property to be offered for sale by private treaty initially. But until this morning, Mr Piper has not responded to any of my communications seeking his agreement to setting a price of $415,000, which is the higher of the market appraisals by Norfolk Islander Realty. Mr Piper has sent an email this morning which I interpret as meaning that he agrees to the $415,000 price, but I would ask that he confirm that to your Honour.
HIS HONOUR: Yes. Very well. Well, Mr Piper, so what the order initially – well, what the order provides at the moment is that it can be offered – in the first instance, it would be offered by private treaty for sale for such price as may be agreed between the parties in writing. So if you, in fact, agree to the property being offered for sale at $415,000 by private treaty at least in the first instance, then it wouldn’t be necessary to amend the rules. So do you agree on that being offered for sale at that price?
MR PIPER: Yes, your Honour. If a full sale of the entirety of the property is to be undertaken, obviously the higher offer would be preferable. But I do note, your Honour, that with a $20,000 legal bill outstanding, as well as a $118,000 asbestos clear-up assessment being made, plus a builders report that also says that the environment of the house is toxic and therefore cannot be entered, so any clearance of anything from within the house shouldn’t be undertaken, and it’s structurally unsound, etcetera. With all those taken into consideration, I think the realistic price has already dropped down to the $250,000 mark. And this is based on the assessments of all the experts that Mr Brown has brought into the mix. And so while I acknowledge we’re talking about a price that a real estate has made, I’m very much aware that with all the issues and the potential clean-up costs, etcetera, that the actual true value to any buyer that hasn’t been, you know – unless the truth has been held from them, yes, the realistic price is closer to the $250,000 mark.
(Emphasis added)
It is clear from that exchange that Mr Piper agreed that the Property be offered for sale at the price of $415,000. Indeed, he appeared to suggest that a more realistic price would be much lower than $415,000.
The email referred to by Mr Brown during the hearing was part of an exchange which commenced on 11 July 2024. Before referring to that email exchange, I should note that market appraisals in respect of the Property had been sought and received by the parties from the two real estate agents on Norfolk Island. A market appraisal provided by Island Realty indicated that the “as is” market value of the property was in the range of $375,000 to $415,000. Norfolk Island Real Estate's market appraisal was that the property’s value for sale in the current market would be in the vicinity of $300,000 to $325, 000. It is clear, therefore, that a listing price of $415,000 was at the very top of the two market appraisals.
Returning then to the email exchanges that preceded the hearing on 15 July 2024, on 11 July 2024, Mr Brown sent an email to Mr Piper in which he stated, among other things:
Ms Stoffels prefers that the property be offered for sale by public treaty, initially at $415,000 which was the higher end of the range suggested by Vaughn Nicol of Norfolk Island Realty. Do you agree with that?
Mr Piper’s unhelpful response to that email was: “I recommend the property be listed as $290,000 or nearest offer”.
On 12 July 2024, Mr Brown sent another email to Mr Piper in which he stated:
Ms Stoffels prefers the asking price to be $415,000 as stated in … my [previous] email to you”
Mr Piper’s response, sent by email on 15 July 2024 was:
Sure … less the $188K asbestos quote, less your almost $50k fees … should make under the mortgage amount as predicted.
Given the somewhat unhelpful nature of that response, Mr Brown sought to confirm that Mr Piper in fact agreed that the Property be listed for sale for $415,000. He sent another email to Mr Piper on 15 July 2024 in which he stated:
Thank you for confirming that you agree to the property being listed for sale by private treaty for $415,000.
Mr Brown received no response to that email.
I should note that at no point during that email exchange did Mr Piper suggest that the Property be listed for sale without a listing price, or that if an offer was received to purchase the Property at the listing price of $415,000 it should not be accepted because a higher price might be obtained if the Property remained on the market for a longer period. Nor did Mr Piper suggest that the market value of the Property exceeded $415,000, or that there was any prospect that an offer might be received for the purchase of the Property at a higher price. Indeed, if anything, Mr Piper appeared to suggest that a more realistic listing price was one which was well below $415,000.
In any event, it is abundantly clear that Mr Piper, in fact, agreed that the Property be listed for sale by private treaty by Norfolk Island Realty at the listing or asking price of $415,000.
While there is no direct evidence that the Property was in due course listed for sale at that asking price, I would readily infer that it was. The unchallenged evidence was that in August 2024, Mr Andrew Shorter and Mrs Emma Shorter agreed to purchase the property at the listing price of $415,000. On 20 August 2024, they paid a deposit in respect of the purchase and executed a contract for the sale of the Property. Ms Stoffels also executed the contract for the sale of the Property.
Mr Piper has, however, failed or refused to sign that contract, despite the best efforts of both Mr Brown and the Registrar to have him do so. I do not propose to detail all the correspondence that has flowed between Mr Brown, the Registrar and Mr Piper in relation to the execution of the contract for sale. It suffices to note that on 9 September 2024, the Registrar sent an email to Mr Piper in which he advised Mr Piper that if he did not sign the contract within seven days of receipt of the contract for sale, the Registrar would sign the contract on Mr Piper’s behalf in accordance with order 7 made on 30 January 2024.
Mr Piper did not sign the contract within the seven days referred to in the Registrar’s email. The Registrar accordingly signed the contract on behalf of Mr Piper.
Mr Piper’s failure or refusal to execute the contract eventually prompted Ms Stoffels to file the application currently before the Court. In a series of email exchanges with Mr Brown, Mr Piper in effect indicated that he no longer agreed to the sale of the Property for $415,000. He claimed, among other things, that $415,000 was “just a market appraisal”, that “[n]o sane person takes the first offer” and asserted that the sale of the Property should be deferred for 10 weeks because it was clear that “higher offers will be made”.
In an affidavit affirmed by Mr Piper and relied on by him in opposition to the relief sought by Ms Stoffels, Mr Piper stated:
I am formally requesting a stay in the sale of 65 Captain Quintal Dr as i have made requests for details about the sale price and length of time on the market as well as information about the purchasers from John Brown, with no resulting answers forthcoming from him.
It is clear that the property was not listed on the market for 8-10weeks as i had requested, and as a result no further offers were sought, which is the right of any owner of a property to seek the best offer.
It is clear that either the realtor and/or the purchaser were informed that the amount $415k was all that should be offered.
Please investigate the reasons why no better offers were sought and why my rights as owner were restricted to John Brown or the realtors sale price opinions and not an open market to maximize profit potential.
I request that sale be stopped and and court ordered explanations forthcoming.
The fundamental problem with the bare assertions contained in Mr Piper’s affidavit is that the real estate agent listed the Property for sale at $415,000 precisely because Mr Piper had unequivocally agreed that the Property should be listed for sale at that price. Mr and Mrs Shorter agreed to purchase the Property at that price. It is ridiculous to suggest, as Mr Piper apparently does, that the agreement by Mr and Mrs Shorter to purchase the Property at the listed price should somehow have been rejected because someone else might offer to purchase the Property at a higher price. In any event Mr Piper’s various assertions concerning how the Property should have been listed for sale are in my view disingenuous and vexatious in light of his previous agreement that the Property be offered for sale at the price of $415,000 and his previous assertions to the effect that the market value, and a more realistic listing price of the Property, was well below $415,000.
Mr Piper has not applied for any order restraining the sale of the Property for $415,000. Even if he had, I would have refused any such application. There is no evidence whatsoever to suggest that the listing of the Property for sale at the price of $415,00 was in any respect improper or inappropriate. Similarly, there is no evidence that it was somehow inappropriate for Ms Stoffels or anyone else to accept the offer to purchase the Property for $415,000 received from Mr and Mrs Shorter. These is no evidence to suggest that a higher offer was received, or is likely to be received if the sale of the Property was or is deferred. There is no evidence that the sale price of $415,000 is below the market value. Indeed, the evidence indicates that it is at the top of the market value range. There is no evidence to suggest that Mr and Mrs Shorter are anything other than independent and bona fide purchasers. In my view the sale of the Property to Mr and Mrs Shorter for $415,000 should proceed.
RELIEF
That brings me to the relief. On one view the relief sought by Ms Stoffels is unnecessary. That is because it was plainly open to the Registrar to execute the contract of sale to Mr and Mrs Shorter pursuant to order 7 of the orders made on 30 January 2024. Indeed, it is open to the Registrar to execute any documents that are necessary or desirable to effect the sale of the Property in accordance with the orders made on 30 January 2024, if Mr Piper refuses or declines to do so. That would include any documents that may, for example, be required to ensure that the existing mortgage over the Property is discharged at settlement. It follows that it would plainly be open to the Registrar to execute, on behalf of Ms Stoffels and Mr Piper, the Transfer document in respect of the sale of the Property.
I can, however, well understand why Ms Stoffels sought the relief she has sought and why she brought the matter back before the Court. That is plainly a product of Mr Piper’s disingenuous assertions and allegations concerning the sales process.
To put the matter beyond doubt, I propose to make a declaration to the effect that the Registrar has validly executed the contract for the sale of the Property to Mr and Mrs Shorter pursuant to order 7 of the orders made on 30 January 2024. I will also make the orders sought by Ms Stoffels to the effect that the Registrar can sign the Transfer and may take all necessary steps to complete the sale of the Property on behalf of the vendors, Mr Piper and Ms Stoffels to Mr and Mrs Shorter.
COSTS
Ms Stoffels has applied for indemnity costs in relation to this application on the basis that Mr Piper had been entirely uncooperative in relation to the facilitation of the sale of the Property, and that had he done what he should have done to facilitate the sale of the Property, these proceedings would have been entirely unnecessary. I agree.
In my view, the evidence before the court demonstrates that Mr Piper's opposition to the sale to Mr and Mrs Shorter at the price of $415,000 and his refusal to sign the contract was entirely disingenuous, if not vexatious. Accordingly, my view an order for indemnity costs is warranted in all the circumstances.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate:
Dated: 21 October 2024
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