The Estate of Wendy Gwynne Price (No. 3)

[2021] NSWSC 15

Supreme Court

New South Wales

Medium Neutral Citation:

The Estate of Wendy Gwynne Price (No. 3) [2021] NSWSC 15

Hearing dates:

On the papers in chambers.

Date of orders:

20 January 2021

Decision date:

20 January 2021

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Plaintiffs not further required to sell the estate real property to the defendant. Ancillary orders made to implement the settlement agreement and in the administration of the estate.

Catchwords:

SUCCESSION - Administration of estates – the plaintiffs are executors of an estate – the defendant is a beneficiary of the estate – the plaintiffs and the defendant settled family provision litigation making consent orders for the sale of certain estate real property to the defendant – upon the expiry of orders restraining the plaintiffs from selling the subject real property, the plaintiffs were at liberty to sell the property on the open market – whether any orders should be made requiring the plaintiffs to sell the real estate to the defendant, and if so on what terms – what other ancillary orders should be made in performance of the terms of settlement and in the administration of the estate.

Legislation Cited:

Conveyancing Act1919, s 145

Succession Act 2006, s 66 (1)

Cases Cited:

The Estate of Wendy Gwynne Price [2020] NSWSC 782

The Estate of Wendy Gwynne Price; Lanigan v Price (No. 2) [2020] NSWSC 1518).

Category:

Consequential orders (other than Costs)

Parties:

Plaintiff: Kerri-Anne Lanigan
Second plaintiff: Ian Barry Smart

Defendant: Matthew Ian Price

Representation:

Counsel:

Solicitors:
Plaintiffs: M. Coffey, Gells Lawyers
Defendant: G. McCartney, Simmons & McCartney Lawyers & Attorneys

File Number(s):

2015/29454

Publication restriction:

No

Judgment

1. This is the Court’s third judgment resolving disputes arising out of the 22 October 2018 settlement of litigation in the estate of Wendy Gwynne Price, late of Tumbulgum.

2. The Court’s two previous judgments were given respectively on 23 June 2020 (The Estate of Wendy Gwynne Price [2020] NSWSC 782) and 30 October 2020 (The Estate of Wendy Gwynne Price; Lanigan v Price (No, 2) [2020] NSWSC 1518). This judgment should be read with the Court’s two previous judgments. Events, matters and persons are referred to in this judgment in the same way as they are referred to in the earlier judgments.

3. By an Amended Notice of Motion, Mr Price seeks orders for the transfer of the Riverside Drive property to him upon the payment by him of $130,000 into Court, on account of costs, and upon the basis the Court gives directions to resolve claims for the costs of Keypoint Law, his former solicitors.

4. On 17 November 2020, the Court made directions for the parties to provide written submissions on all remaining issues and to comply with the Court’s orders made on 30 October 2020, which directed the parties to provide short minutes of order to the Court (which were either agreed, or marked up to show the parties’ differences) to give effect to the Court’s judgment of 30 October 2020. The Court has not received from the parties agreed or marked up short minutes of order to give effect to its 30 October 2020 judgment, so the Court will make its own orders on that subject at the end of these reasons.

5. Mr Michael Coffey of Gells solicitors continues to appear for the plaintiffs/executors. Mr Grant McCartney of Simmons & McCartney appears for the defendant/cross-claimant, Mr Price.

6. The remaining issues have narrowed to two main questions: (1) whether the estate is justified in proceeding with a proposal to sell the Riverside Drive property to a third party; and if not, (2) whether Mr Price is ready, willing and able to settle the sale of the property. These questions will be dealt with in turn.

7. As was explained in the Court’s 30 October 2020 judgment (at [28]), the Court’s continuing power to intervene in the present case and to make orders implementing the parties’ 22 October 2018 settlement derives from Succession Act 2006, s 66 (1).

(1) The present proposal to sell the Riverside Drive property

8. The first issue is whether the executors are justified in proceeding with their present proposal to sell the Riverside Drive property to a party other than the defendant, Mr Price.

9. The Court concludes on this first issue that the plaintiffs’ efforts to sell the property through their agent strongly suggests they are justified in proceeding with their present sale proposal. The defendant’s criticisms of the plaintiffs’ agent’s conduct of the marketing and proposed sale of the property are without substance.

10. In the Court’s 23 June 2020 judgment, the Court declined to continue a restraint against the plaintiffs from selling the Riverside Drive property and directed the plaintiffs to prepare the property for sale as they were advised in writing by the selling agent that they appointed. The Court found they would be justified in appointing Mr Mark Chappell as the selling agent for the property.

11. Pursuant to an agreement made before the end of June 2020 between the plaintiffs and T W Enterprises (NSW) Proprietary Ltd (“TW Enterprises“) of Murwillumbah, the employer of Mr Chappell, the plaintiffs secured Mr Chappell’s services as the selling agent for the Riverside Drive property.

12. Mr Price makes a number of criticisms against Mr Chappell’s conduct in relation to the sale of the property. The defendant first criticises Mr Chappell for alleged intentional misconduct on the basis that he was deliberately trying not to get the best price for the property. This criticism is unfounded because, as will be seen below, Mr Chappell made substantial efforts to market the Riverside Drive property and achieved considerable success in challenging circumstances. And the criticism assumes, without proof, that Mr Chappell was carrying out a scheme in concert with the plaintiffs not to get the best price for the property.

13. The defendant next criticises Mr Chappell on the basis that his marketing efforts undersold the special qualities of the property and that the plaintiffs were therefore unlikely to get the best price for the property. But the defendant’s criticism on this ground is also unfounded. Mr Chappell has answered in detail the defendant’s criticism of his marketing of the advantages of the property. Both these criticisms are dealt with together below after the Court’s findings as to the marketing history of the property.

14. Mr Chappell, a licensed real estate agent, has been involved in steps to sell the Riverside Drive property since May 2020. He has sold real estate in the Tumbulgum area since about 2003.

15. Tumbulgum lies at the confluence of the Rous and Tweed Rivers in northern New South Wales. As its address would indicate, the Riverside Drive property lies close to the riverbank in Tumbulgum: only the road and a stretch of open grass lies between the Riverside Drive property and the water. It is an attractive location. The Riverside Drive property, like many of the properties in what is a flood-prone district, retains its living areas on the first floor and the ground floor is used for recreation, storage and car parking.

16. Mr Chappell was a bidder for the agency work for the Farm property. But the Court directed that the Farm property be sold by a different agent. Since being engaged to sell the Riverside Drive property, he has been active in marketing the property. Mr Chappell has also been assisted in agency work by other employees of TW Enterprises.

17. Mr Chappell was faced with the challenge of marketing the property commencing in June 2020 during Covid-19 restrictions, including when the border with nearby Queensland was closed. The township of Tumbulgum is only 120 kilometres from Brisbane but over 800 kilometres from Sydney. By June 2020, the Court had already rejected Mr Price’s argument: that marketing the property should be deferred until the end of the Covid-19 pandemic. The Court had made clear that the duration of the pandemic was so uncertain that the executors were justified in proceeding with the sale of the property without delay. Despite the challenging circumstances, the marketing of the property was quite successful.

18. Mr Price argues that Mr Chappell should have marketed the property as having four bedrooms and two bathrooms. His criticism is that Mr Chappell advertised the property as having only one bedroom and one bathroom, which was amended later to one bedroom and two bathrooms. Mr McCartney said in an email of 31 August 2020 of Mr Chappell, “why is he advertising it as one bedroom and one bathroom, when in actual fact it has four bedrooms and two bathrooms, regardless of approvals?”

19. But Mr Chappell’s evidence on the subject, which the Court accepts, well explains his decision only to advertise the smaller number of bedrooms. Mr Chappell’s advertising of the property was reasonable, lawful and well judged.

20. After the signing of the agency agreement, Mr Chappell engaged contractors to clear the property outside the house in July 2020, incurring charges of $4,550. He undertook a walk-through market appraisal the property. He appraised the house as having four bedrooms and two bathrooms and estimated that the fair market value of the property was between $550,000 and $600,000.

21. Mr Chappell says, and the Court accepts, that a major factor influencing his initial estimate of the likely sale price of the property was its poor condition both inside and outside, compared to renovated houses in the Tumbulgum village that needed no work done to them before being occupation–ready. Mr McCartney complained in an email, “my client notes that no interior shots of the property are shown that would reasonably get a potential purchaser an online summary of what was on offer”.

22. But photographs of the interior of this property would be more likely to deter purchasers online than attract them. If Mr Chappell’s objective was to attract potential purchasers to attend the property where he could prepare them in advance for its disordered slum-like interior, it is an understandable and reasonable professional judgment on his part.

23. One of the executors, the second plaintiff, Mr Smart, alerted Mr Chappell to the possibility that work done both by the deceased and Mr Price on the second floor of the property may not have been approved by the local Council. Mr Chappell’s enquiries at the Tweed Shire Council confirmed that indeed the internal division of the property to more than one bedroom had not been approved. Mr Price has criticised Mr Chappell’s enquiries at the Tweed Shire Council as “hearsay”. But Mr Chappell only advanced the material to establish the response to the inquiries that he made of the Council, upon which he had grounds to act. And Mr Price has had every opportunity to show that there was an approval in place for four bedrooms and has failed to do so.

24. The Court’s 23 June 2020 judgment gave Mr Price a final opportunity to remove his goods from the Riverside Drive property before 22 July 2020. After that date passed, marketing of the property commenced in earnest. Even before formal marketing, an informal purchase offer for $490,000 was made to Mr Chappell. Before marketing commenced, Mr Chappell reappraised the value of the property at $450,000-$490,000, on the basis that it was one bedroom and one bathroom, corresponding with what he had discovered Council had approved.

25. The defendant says that Mr Chappell’s valuation range is too low. The defendant sought finance from Wyvern Mortgage Services Proprietary Limited (“WMS”), who obtained a valuation of the Riverside Drive property from Preston Rowe Patterson (“PRP”), valuers, at $660,000. But the PRP valuation was based on the property comprising four bedrooms and two bathrooms. The defendant relies on the PRP valuation and criticises Mr Chappell for considering offers lower than $660,000 and criticises him for marketing the property at only one bedroom and one bathroom.

26. Mr Chappell corrected the number of bathrooms to 2 bathrooms. But he continued to market the property as having only one bedroom. Mr Price’s submissions were that the property should be marketed as four-bedroom but “subject to council approval”.

27. Mr Chappell was correct to market the property the way he did. Even marketing the property as four bedrooms “subject to council approval” gives the impression that: (1) an application for approval of four bedrooms had been made (which it had not), and (2) the Council was likely to approve the unauthorised works (which has no basis in the evidence).

28. Mr Chappell chose a more conservative course, which was less likely to mislead potential purchasers. He is not to be criticised for taking this course in the Court’s view. The alternative course the defendant was advocating risked rescission of the contract, lawsuits against the agent and the plaintiffs for misleading and deceptive conduct and loss of the agent’s licence.

29. The correction in bedroom numbers also indicates that the PRP valuation at $660,000 was likely to be overstated. The Court accepts Mr Chappell’s evidence that his revised valuation range of $450,000-$490,000 was his best genuine estimate of the valuation range of the Riverside Drive property at the time Mr Chappell revised it. And this range was based upon sound comparable property sales known to Mr Chappell.

30. The plaintiffs instructed Mr Chappell not to proceed with the pre-marketing offer of $490,000. But once marketing and calls for expressions of interest commenced on all main real estate websites on 20 August 2020, buyer interest in the property was revealed to be higher than Mr Chappell had first expected, indeed as Mr Chappell himself said: it was the case of “the amount of interest being very high for our selling area”.

31. In the 14 days the property was listed for sale after 20 August 2020 it received 2139 Internet page views, 80 email and telephone enquiries and Mr Chappell participated in 24 property inspections with interested buyers. He received 11 expressions of interest on the forms his agency had provided for the purpose, submitting offers in the range of $452,000-$580,000. Mr Chappell recommended that the executors accept the highest offer of $580,000, which came within his original appraisal range of $550,000-$600,000. That offer was made on 3 September 2020 on the basis that the rubbish and goods on the ground floor of the property would be removed before settlement.

32. The defendant submits that this highest offer should not be accepted. The plaintiffs seek the Court’s approval for its acceptance. In the Court’s view, on the available evidence the plaintiffs would be justified in accepting the offer of $580,000 and have the estate bear the costs of the removal of the rubbish and goods on the ground floor.

33. The defendant believes Mr Chappell is acting in concert with the plaintiffs to harm him financially. Mr McCartney repeated allegations to this effect in correspondence. On 31 August 2020 he stated to Gells, “[t]he conduct of your agent is reasonably open to interpretation that he has deliberately downplayed the value of the property”. This contention was principally based upon the agent’s alleged failure to address the proper bedroom configurations, which the Court has dealt with above.

34. The Court rejects this allegation. It is wholly inconsistent with: the range of marketing and administrative work that the agent undertook to promote the property, the 11 substantial offers that his work generated despite the pandemic, the complete absence of any positive evidence that the agent had such an intent, and the obvious improbability of a case theory that the agent was personally motivated to inflict financial harm on the defendant.

35. But some time has since gone by since Mr Chappell revised the valuation range for the property to $450,000-$490,000 and received the offer of $580,000. The question arises whether in the present circumstances, several months later, that the offer of $580,000 must be accepted. The Court concludes that it is open to the plaintiffs to accept that offer and makes a declaration below that they are justified in doing so.

36. But they do not have to do so. They may wish to market the property further or commence further negotiations with the offeror of the $580,000. In the Court’s view, that can be left to the plaintiffs to decide based on Mr Chappell’s expert advice. This is a matter within the executor’s discretion in the proper administration of the estate. And based on the available evidence, the Court has no reason to doubt that Mr Chappell’s advice about the marketing and sale of the Riverside Drive property is sound.

37. Relevant considerations for the plaintiffs here are that several matters have changed since September 2020 and are still changing, such as the Queensland border closures. These changes may provide a basis for Mr Chappell to advise the plaintiffs to undertake a short supplementary call for expressions of interest, or to further explore the implications of the delay since July 2020 on the price of the property. If the delay between September last year and January this year was thought to have no price implications, then the plaintiffs would be justified in accepting the highest offer for the property at $580,000. But these are matters for the plaintiffs. And the Court will not interfere further in the exercise of their discretion in administering the estate, which has not been shown to have been misused against the defendant in relation to the sale of this property.

38. If the highest offer of $580,000 for the property is still open and is accepted, Mr Chappell’s commission will be $15,950 plus advertising costs of $379 making a total of $16,329. All these charges are reasonable, and the executors would be justified in meeting them at settlement of the property.

39. But what if the executors proceed? Mr McCartney, on behalf of the defendant, has made and has not withdrawn the allegation that “your sale process was deficient and has deliberately failed to achieve an optimum price”. The defendant has instructed Mr McCartney that both Gells and the executors “will be held liable for his loss and damage”. Contrary to these allegations the Court concludes that the sale process using expressions of interest rather than an auction is not “deficient”. Moreover, as the next section of these reasons indicates, but without deciding the matter, the defendant is unlikely to suffer any damage from the executors proceeding with the $580,000 offer, because he is incapable of completing the contract himself.

40. It should be noted at this point that the parties requested delay in the delivery of the judgment of 30 October so that they could attempt to negotiate a settlement of the proceedings. And further submissions then took the procedural steps in the case into November. Judgment could not be delivered in December but has now been delivered at the earliest reasonable opportunity. There is urgency to resolving the sale of this property. There is for example a danger of fire and vermin at an unoccupied property such as this. These are important factors which the executors can consider in deciding whether to proceed to exchange contracts with the party making the highest offer of $580,000 from the expressions of interest process.

41. In summary, Mr Chappell has undertaken considerable efforts to market the Riverside Drive property to its best advantage. That alone is inconsistent with the defendant’s conspiracy theory that somehow Mr Chappell and the plaintiffs have plotted to undersell the property. And no positive evidence exists to support such an allegation.

42. Moreover, Mr Chappell marketed the property lawfully, in accordance with his duties as an agent. His refusal to engage in misleading and deceptive conduct by overstating the number of approved habitable rooms in the property was well justified. It limited the plaintiffs’ potential damages liability and the risk that the sale of the property might be set aside.   

(2) Mr Price’s financial capacity to acquire the Riverside Drive property.

43. The next issue is whether Mr Price is in a financial position to complete any sale of the Riverside Drive property. Mr Price seeks a final opportunity to complete the sale and says that he is ready, willing and able to complete. The Court’s 23 June 2020 judgment sets out his previous failed attempts to complete the acquisition of the property and his failure to take up previous opportunities to purchase the property, which the Court had granted to him. He seeks a further opportunity to acquire the property upon terms that would have him pay into Court $130,000 and upon other terms acceptable to the Court, before the property were to be sold to the highest bidder in the expressions of interest process.

44. But a fundamental question is whether there is any point in considering such an opportunity: the plaintiffs say that to give it would be futile. They say Mr Price could not complete the contract anyway and the Court should not countenance the further delay or disruption to the sale to a third party that would be involved by offering the defendant such an opportunity. The plaintiffs’ submissions are persuasive for the following reasons.

45. In August-September 2020, Mr Price attempted to revive his efforts to take a transfer of the Riverside Drive property from the estate. On 4 September 2020, WMS offered him 12-month interest only finance for $350,000 secured by first registered mortgage over the Riverside Drive property. The WMS offer was at a high interest rate of 15% reducing to 10%, reflecting the lender’s risk assessment of the facility being offered to Mr Price. The loan WMS was offering was for business purposes: Mr Price had by now apparently abandoned the idea of living in the Riverside Drive property but conceived the idea of reselling it as an investor.

46. The WMS facility would have given Mr Price approximately a net $323,000 after the deduction of interest in advance, application fees, lender’s legal fees and loan assessment costs. From that Mr Price says that he could have paid the $130,000 into Court. Mr McCartney’s affidavit of 9 October 2020 states that “[f]unds are not available in excess of the payment of $130,000 specified in proposed order 2 of the amended notice of motion dated 24 August 2020”.

47. This presents the first obstacle to a transfer of the property to Mr Price. On 10 December 2019 (Order 3), the Court fixed the sum of $130,000 for payment into Court as a best estimate at that time of what might have to be reserved after transfer of the property out of the estate. The reservation was to provide security for the remaining costs of the executors and for their potential liabilities after they had divested themselves of this last substantial asset in the estate. The figure was fixed as something of a compromise based upon the plaintiffs’ estimates of their costs up to December 2019. And it was expressed to operate only for a limited period up to 14 February 2020, which was obvious from its terms:

“[3] Order that upon the Defendant paying into Court the sum of $130,000, clear of any payments required by the ATO on the transfer, the Plaintiffs will transfer (“the transfer”) the title of the Riverside Drive property to the Defendant by Friday, 14 February 2020.”

48. The order has expired. And the plaintiffs have incurred over 12 months of costs since December 2019. The Court has delivered three judgments since then, all of which involved evidence and submissions from the parties. A figure of $130,000 is now likely to undershoot the plaintiffs’ current costs by a wide margin. This figure would have to be substantially increased in order to represent the same balance of fairness that was sought to be achieved in December 2019. But Mr McCartney says no more than $130,000 is available. Mr McCartney should be taken at his word. The Court is not prepared to sanction the transfer of the property to Mr Price without a substantial increase in this sum of $130,000. Mr McCartney’s refusal to increase the figure prevents the Court authorising the transfer, which the Court is only prepared to make on a much higher figure.

49. Other obstacles to the transfer exist. Mr Price still owes substantial sums to Keypoint Law. He had changed solicitors from Keypoint Law to Mr McCartney by the time of the 30 October 2020 judgment. As at July 2020, Keypoint Law had invoiced Mr Price for $163,104.06 for legal services and was proposing to issue another invoice for $52,994.19, making a total of $216,098.25. By the time of this third judgment, Mr Price owed Keypoint Law a total of $244,924.25, subject to reduction upon cost assessment. And Keypoint Law claims a fruits-of-litigation equitable lien over the Riverside Drive property. This charge is supported by an executed mortgage securing monies up to $250,000 and prohibiting Mr Price from entering subsequent mortgages.

50. Keypoint Law’s consent is thus required to any arrangement involving an incoming mortgagee such as WMS. That consent has not been expressly given to any of the proposals Mr McCartney has outlined in his affidavits or submissions. Keypoint Law has not withdrawn its claim and has not given its consent to the proposed transfer to Mr Price. Indeed, in correspondence as late as 24 November 2020, Keypoint Law contends that “we do not consent to any transfer of the property to Mr Price and we seek your confirmation that you will not transfer the Riverside Drive property to Mr Price until such time as we do so consent.” None of Mr McCartney’s proposals on behalf of Mr Price are realistic without Keypoint Law’s express consent.

51. Mr McCartney’s affidavit of 27 August 2020 refers to his negotiations with Keypoint Law to attempt to achieve a negotiated settlement by which Keypoint Law would be satisfied with only $150,000 upon the transfer of the Riverside Drive property, with the balance being secured by way of second mortgage. But Keypoint Law has not consented to this putative arrangement and it can be ignored.

52. Nor is it clear that the WMS financing proposal will proceed or that it would proceed on terms that were satisfactory to the Court. Mr Price has not finalised any security documentation. And it is at least arguable that from what is known of Mr Price’s agreement with WMS and Keypoint Law’s mortgage terms that both WMS and Keypoint Law may have claims over the $130,000 Mr Price proposes to pay into Court.

53. Moreover, if provision is to be made for Keypoint Law’s present claim for $244,924.25, the defendant’s proposal for a transfer of the Riverside Drive property to him is unviable for another reason. The proceeds of sale of the Farm property have been paid into Court. Mr Price was only entitled to half of those proceeds. His half was substantially applied to pay out the Southern Cross mortgage in the sum of $363,364.47. Mr Price claims the balance of $26,093 but the executors dispute his claim, saying that this sum should be dealt with in the administration of the estate. It is reasonably safe therefore to say that Mr Price only has a minimal claim to the funds in Court.

54. Mr Price has not given a budget to show how he will meet all his various financial obligations. But in doing a budget for him it would be imprudent to credit to him without qualification the residual $26,093 held in Court. The proceeds of the WMS mortgage of $323,000 are insufficient to meet Keypoint Law’s claim of $244,924.25, plus a requirement on transfer to pay $130,000 into Court, which would total $374,924.25. Even if the Court were prepared to reinstate the transfer to Mr Price, based on his payment of about $130,000 into Court, Mr Price’s proposal is not financially viable.

55. Mr Price submits his “funds are more than sufficient to meet the proposed payment to Keypoint Law or into otherwise take the transfer”. Saying it in submissions, does not make it so. The evidence is the other way. The only liquid funds that are likely to be available to Mr Price to pay Keypoint Law are those from WMS. These monies do not cover his obligations to Keypoint Law and to pay money to Court.

56. The evidence does not satisfy the Court that Mr Price can complete the contract. The executors would be justified in ignoring his further attempts to acquire the property. Everything points to continuing uncertainty in his financial capacity to acquire the property. As a result, the Court sees no basis to vary the orders it made on 23 June 2020 authorising the plaintiffs to sell the Riverside Drive property through Mr Mark Chappell acting as a selling agent.

Other Issues Relating to the Proceedings and Estate Administration

57. The parties are at issue about several other ancillary issues, some of which arise out of the judgment of the October 2020. It is desirable that these miscellaneous issues be dealt with in this judgment so that the executors can now finalise the administration of the estate.

58. First, in its 30 October 2020 judgment the Court indicated that, given that each party had some measure of success, an appropriate costs outcome would be for each party to bear his or her own costs of these proceedings after 22 October 2018. In written submissions both parties have accepted that position. The plaintiffs have raised the question of the allocation of hearing fees, which have been paid by the plaintiffs. They should be borne equally as well. Costs orders to this effect are made below.

59. Second, the defendant’s submissions raise the issue of apportioning the costs of Ms Sage and Mr Fraser. The burden of costs of those two court-appointed experts have already been fully dealt with in orders (1) and (2) of the orders made on 30 October 2020. No further orders are required with respect to these two experts, except to ensure that they are paid. The Court wants assurance that these two court-appointed experts have been paid, as they were engaged at the Court’s direction. It is not obvious from the Court’s discussion in the 23 October 2020 judgment ([149] to [160]) that either expert has been paid by then. The Court will make a direction for the plaintiffs to confirm to the Court that they have been paid and if not that they be paid and that the Court be informed when payment is made.

60. Third, the executors seek an order that the defendant bear the expenses of the Riverside Drive property up to and including the date of completion of the sale of that property which is yet to take place. The defendant seeks an order that the estate bear those costs up to and including 22 October 2018 and that he will bear those costs thereafter.

61. The defendant’s contentions are not consistent with the 30 October 2020 judgment, which provides that all mortgage payments, expenses and outgoings of the Riverside Drive property up to 22 October 2018 may be deducted from its proceeds of sale: 30 October 2020 judgment at [49] to [51]. And all mortgage payments, expenses and outgoings between 22 October 2018 and the sale of the property should also be borne by Mr Price, not the estate: 30 October 2020 judgment at [119].

62. The Court will make a declaration to give effect to this aspect of the 30 October 2020 judgment. The declaration made is in the form of Conveyancing Act1919, s 145, which is limited to legal equitable or other liabilities charged over the property. In their administration of the estate the executors should determine which charges should be deducted in accordance with this declaration, which applies up until the sale of the property. The declaration does not include liabilities that are not charged over the property.

63. Fourth, the defendant seeks an order that that all the plaintiffs’ costs, including holding expenses, up to including 22 October 2018 be particularised. The defendant submits that this will enable the determination of the proper apportionment of those amounts in accordance with the Court’s decision of 30 October 2020. The plaintiffs say they have already provided these particulars and supporting material.

64. The Court will not make this order. It invites the Court to administer the estate itself rather than for that task to be done by the executors. The defendant will have access to estate accounts in due course, if he requests them. There are well-established procedures for questioning estate accounts. If the Court becomes involved now in directing account particulars, the administration of this estate will become even more expensive than it is now, to the disadvantage of all parties.

65. Fifth, it is argued a declaration should be made to give effect to the Court’s determination of issue (2) decided in the 30 October 2020 judgment. The Court will not make this declaration by reference to the precise figures as stated by Mr Fraser for the rectification of water damage, graffiti and like repairs. Those estimates may vary when the work is done. And Mr Fraser’s visit to the property in September 2019 makes the estimates 16 months old and potentially out of date. Whatever these repair expenses turn out to be, they should be borne in the ratio 75:25 as between the estate and Mr Price.

66. Sixth, the plaintiffs seek payment out of the balance of the funds in Court to them for the use in the administration of the estate. The defendant resists this course. This possibility was foreshadowed in the 30 October 2020 judgment (at [144]). The Court has now determined all other outstanding disputes in these proceedings. The funds will not be applied during any transfer of the Riverside Drive property to the defendant. They should now be returned to the plaintiffs, on the basis that they will be dealt with by the executors in accordance with the accounting described in the 30 October 2020 judgment at [141] to [143], which acknowledges that the defendant was entitled to half of the net proceeds of the Farm property.

67. Seventh, the defendant raises various other issues about the recovery of the $52,186 from the ATO, various particular expenses in respect of repair costs, water fees, the reimbursement of Mr Smart, and the particularisation of other holding expenses. These are all matters, which the plaintiffs will deal with during the ordinary administration of the estate.

68. The defendant seeks to withdraw his Amended Notice of Motion of 24 August 2020. But that is unnecessary. The motion will be dismissed. The costs orders already made encompass the costs of the motion.

69. This concludes the Court’s consideration of the various disputes that arose out of the orders made in the 22 October 2018 settlement. The parties’ liberty to apply in relation to the implementation of those original orders has now been exhausted and is not renewed in this judgment, except in relation to the interpretation and implementation of these orders. Further disputes between these parties leading to applications, if any, are likely to relate only to the administration of the estate and should be made by motion to the probate judge.

Conclusions and Orders

70. For these reasons the Court makes the following notations, orders and directions:

1. The Court notes that it declines to make any further order extending or amending the operation of Order 3 of the orders made on 10 December 2019;

2. Subject to Order (3) the Court further notes that it makes no order as to the costs of these proceedings after 22 October 2018 to the intent that each party will bear his and her own costs incurred during that period;

3. Order that all hearing fees accrued in respect of these proceedings since 22 October 2018 shall be borne equally by the parties;

4. Direct the plaintiffs to pay all outstanding invoices from Ms Debbie Sage and Mr Shane Fraser by Friday, 6 February 2021 and further to confirm in writing to the associate to Slattery J, when such payment has been made;

5. Declare that the plaintiffs/executors may deduct from the proceeds of sale of the Riverside Drive property, before paying the same to the defendant, all charges for the payment of money, whether by way of legal mortgage, equitable charge or otherwise, over the said property incurred up until the sale of the Riverside Drive property;

6. Declare that the plaintiffs/executors are responsible to meet on behalf of the estate 75% of the total estimated costs of rectification of water damage, graffiti and like repairs at the Riverside Drive property and the defendant/Mr Price is responsible for meeting 25% of such costs;

7. Order that the balance of the funds in Court be paid out to the plaintiffs/executors to be applied by them in the administration of the estate, at any time after 3 February 2021;

8. Dismiss the defendant’s motion of 24 August 2020; and

9. Grant liberty to apply but only in relation to the interpretation or implementation of Orders (1) to (7) above.

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Decision last updated: 20 January 2021