Supreme Court New South Wales Medium Neutral Citation: Bowden v Bowden (No. 3) [2022] NSWSC 162 Hearing dates: 23 February 2022 Date of orders: 24 February 2022 Decision date: 24 February 2022 Jurisdiction: Equity Before: Slattery J Decision: Referee's report adopted with variation in relation to the non-financial claims of the defendant/cross claimant. Grant a stay on the appointment of trustees for sale to a near-term future date sufficient to give the plaintiff an opportunity to exercise any rights of appeal. Order for possession made in favour of the trustees for sale. Writ for possession not to be executed before a nominated future date. Each party ordered to pay their own costs of the proceedings before Pembroke J. An order for costs made that the plaintiffs pay 80% of the Defendants/Cross Claimants' costs of the balance of the proceedings. Directions made for fixing a specified gross sum instead of assessed costs. Catchwords: CIVIL PROCEDURE – alternative dispute resolution – Court referral to a referee – Uniform Civil Procedure Rules 2005, r 20 – proceedings between co-owners referred to a referee to determine their respective financial and non-financial contributions to the property to determine their final interests in it, varying those interests from a baseline of equal ownership – the defendants seek orders that the referee's report be adopted – the plaintiffs resist the making of such an order – previous judgment indicating that the report will be adopted but could be varied and the defendants were given options as to which course they wish to take in relation to the adoption and variation of the report – defendants declare an option – upon what terms should the report be adopted – what variation should be made to the report. TRUSTEES FOR SALE – co-owners of land – one co-owner seeks upon the trustees for sale – whether the trustees for sale should be appointed – one co-owner seeks to buy out the other co-owner – whether the appointment of trustees for sale should be further stayed. Legislation Cited: Civil Procedure Act 2005, ss 56,57, 98(4)(c) Conveyancing Act 1919, s 66G Uniform Civil Procedure Rules 2005, rr 20, r 20.24(1)(a) Cases Cited: Bowden v Bowden (unreported, 10 April 2019, Pembroke J) Bowden v Bowden [2020] NSWSC 1863 Bowden v Bowden (No. 2) [2021] NSWSC 1625 Category: Consequential orders Parties: First Plaintiff: Kevin Alwyn Bowden First Defendant: Julie Gaye Bowden Second Defendant: Ian Bowden Representation: Counsel: First and Second Defendant: D. Eardley Solicitors: Plaintiff: in person, leave granted for Mr Phillip Bowden to assist First and Second Defendant: Phillip John Carey File Number(s): 2017/376872 Publication restriction: No. JUDGMENT 1. This is the Court's fourth judgment in these proceedings. It deals with issues of the final form of orders for the adoption of a referee's report, the lifting of a stay on the appointment of trustees for the sale of jointly owned land, and an order for possession of the land. 2. The trial judge, Pembroke J, gave the first judgment in these proceedings on 10 April 2019 after a contested hearing. His Honour's judgment was not published at the time. It was published as an annexure to a later judgment of the Court. 3. On 17 December 2020, I gave the second judgment in the proceedings. In this judgment the Court allowed the plaintiffs to engage new solicitors and put on further evidence in reply to the defendants' motion of 19 June 2020 ("the Motion") for adoption of the report of the referee, Mr Shon Condon, pursuant to UCPR, r 20.24(1)(a): Bowden v Bowden [2020] NSWSC 1863 ("the December 2020 judgment"). 4. In December 2021 I gave the third judgment. In the relief granted at that time the Court made declarations that the Nowra property is jointly owned in Equity, in proportions to be determined finally by the Court. I also ordered pursuant to the Conveyancing Act, s 66G that Paul Gordon Falzon, Solicitor of Falzon Legal, and Stefan Psaltis, Solicitor of Praxis Lawyers, be appointed as trustees for sale of the Nowra property. The Court reserved question of costs, on the basis that the parties could put on submissions about which of the three legally available options for dealing with the referee report should be adopted and costs would be determined once final orders had been made for adoption of the report: Bowden v Bowden (No. 2) [2021] NSWSC 1625 ("the December 2021 judgment"). 5. This judgment should be read with the Court's previous judgments. Events, matters and persons are referred to in this judgment in the same way as they are in the December 2020 and December 2021 judgments. 6. Mr D. Eardley of counsel, instructed by Mr Phillip Carey, appeared for the defendants. The first plaintiff Mr Kevin Bowden continues to appear for himself, assisted by his brother Mr Phillip Bowden, who was granted status as a next friend by the Court. As was explained in the December 2021 judgment (at [68] - [77]) Mr Kevin Bowden was joined as a first and second plaintiff in his two capacities and for that reason the plaintiffs have conventionally been referred to in the plural in the Court's judgments. 7. Parties' options regarding the Referee's report 8. The December 2021 judgment contained orders directing the parties to prepare written and oral submissions for a supplementary hearing to be held on 23 February 2022. Following the receipt of the parties' written submissions in late January 2022, the Court held a directions hearing on 15 February 2022 to narrow the issues in dispute and to understand the position of the parties. The Court presented the parties with three options with regard to the referee's report: December 2021 judgment at [111] – [113]. The options were derived from the Court's conclusion that the defendants' claim for non-financial losses of $67,070 within the referee's report should be disallowed. 9. As the December 2021 judgment explained ([106] – [110]), the referee applied inconsistent standards of substantiation to Kevin Bowden's evidence and the defendants' evidence of non-financial contributions to the improvement of the property. The referee reduced the plaintiffs' valid claims of non-financial contributions to only $1,050, as only this amount was said by the referee to be supported by independent substantiation. The Court concluded that the referee had accepted the word of the defendants without documentary or voucher substantiation in order to calculate the defendants' non-financial contributions of $67,060. Due to this application of an inconsistent standard of proof between the defendants and the plaintiffs, and not the application of the standard that the referee said he was going to apply equally to both parties, it was concluded that the calculation of non-financial contributions of $67,060 resulted from defective reasoning and therefore could not stand. I outlined three legally available options to the parties to remedy the report's defect. 10. I will briefly summarise the options presented to the parties. The first option was for the defendants to accept the referee's report without the benefit of the $67,060 of non-financial contributions. The second option was to return the report to the referee to ask him to redo the report applying to the defendants the same test of substantiation that was applied to the plaintiffs. The third option offered was for the defendants to substantiate the $67,060, but if that was to occur then Mr Kevin Bowden should probably be allowed to resubmit documents/invoices to substantiate his various claims to have made non-financial improvements to the property. 11. I expressed a reluctance to return the report to the referee, as the Court has become acquainted with the matter and could deal with the remaining issues itself. Return of issues to the referee was likely to result in unnecessary delay. The Court gave the parties time to consider which option they each wished to pursue. The 23 February 2022 Hearing 1. The hearing on 23 February 2022 proceeded in the absence of the plaintiff. On 15 February 2022 the plaintiff was given notice of the date of the hearing. Mr Philip Bowden was present on 15 February representing Mr Kevin Bowden by the leave of the Court, appearing by MS Teams. After discussion as to the remaining issues in the proceedings, the Court made the following orders on 15 February 2022: "1. Adjourn the proceedings for final hearing by MS Teams at 9.00am on Wednesday, 23 February 2022 for no more than two hours. 2. The Court notes that on that occasion the Court will address the remaining issues in the proceedings, given that the defendants have taken up the option identified by the Court in paragraph [111] of its judgment of 17 December 2021, to forego the $67,060 of defendants' claimed non-financial contribution to the property. The issues for determination are: (1) The final percentage of ownership of the Nowra property between the parties. (2) The lifting of the stay on the orders for the appointment of the trustees for sale of the Nowra property. (3) Entry of judgment for possession in favour of the trustees for sale against the occupants of the Nowra property and the issuing of a writ for possession. (4) The timing of (2) and (3). (5) The costs of the proceedings. (6) Amend Order 9 of the orders made on 17 December 2021 so that after the words Paul Falzon add the words "Stefan Psalters are" and delete the word "is". (7) Direct the defendants to file and serve written submissions including the defendant's final worked calculation of the interest claimed in the Nowra property by 4pm Thursday, 17 February 2022. (8) Direct the plaintiff to file and serve written submissions in reply by 4pm, Monday, 21 February 2022." 1. A number of matters point to the plaintiff having received adequate notice of the 23 February 2022 hearing, through his chosen next friend, Mr Philip Bowden. Mr Philip Bowden was present at the hearing on 15 February 2022 and was given notice of the issues that would be determined on 23 February. 2. One of those directions was that the plaintiffs should file and serve written submissions in reply by 21 February 2022. The plaintiffs did so, albeit one day late, on the evening of 22 February 2022. This did not give the defendants any real opportunity to consider the submissions before the hearing on 23 February. But the service of the submissions did establish the plaintiffs' appreciation of the orders made on 15 February 2022. 3. On the morning of 23 February 2022 at approximately 8.56am, Mr Philip Bowden emailed Slattery J's chambers indicating as follows: "hi Katerina I am unable to connect to the app allowing access to the hearing. In light of the circumstance at hand we seek an adjournment because of the techno'' of the instrument capabilities are insufficient an/or. Sorry for the inconvenience. Sincerely Phil Bowden for & on behalf of the Bowden Family Trust & Kevin Bowden." 1. In response to this the Court staff made extensive efforts to contact Mr Phillip Bowden on MS Teams and Slattery J's chambers also sent the following email to him at 9.17am: "Dear Mr Bowden and Parties, We understand that Mr Phil Bowden is having difficulty connecting to the Virtual Courtroom for the hearing scheduled for 9.00am this morning. The Court is currently waiting for Mr Bowden to resolve this technical difficulty such that the matter may proceed. His Honour reminds Mr Bowden that other mechanisms to connect to the Court (including via telephone) are available as redundancies. His Honour seeks an update from Mr Bowden as to when and how these technical difficulties may be rectified, at the earliest convenience. Kind regards, Tony" 1. The Court kept trying to contact Mr Philip Bowden between 9am and 9.40am. The Court decided at about 9:45am to proceed with the hearing, as nothing more had been heard from Mr Bowden. The Court received no reply during the course of the morning to the email the Court had sent. The matter was called outside the Court in case either Mr Kevin Bowden or Mr Philip Bowden had attended in person. But there was no appearance. 2. The Court emailed the email addresses used by Mr Kevin Bowden and Mr Philip Bowden later on 23 February with a copy of orders that indicated that the hearing had taken place. There was no reply to that email. No further contact was received from or on behalf of Mr Kevin Bowden or Mr Philip Bowden before these reasons were published and orders made today. 3. The solicitor for the defendants said to the Court on 23 February 2022 that Mr Kevin Bowden and Mr Philip Bowden may be appearing that morning in the Magistrates Court in Nowra in a criminal matter. But the Court was reluctant to act on that information for two reasons. First, the Bowdens had not told the Court that they had a conflicting engagement. Second, those facts would tend to contradict the email that Mr Bowden had sent to the Court that he had technical difficulties. 4. Even if Mr Bowden had some technical difficulties, he was well aware of the telephone number of the Court and of the contact details for the chambers of Slattery J from previous correspondence sent to him. Moreover, he was sufficiently Internet-connected at approximately 9am on the morning of the hearing to be able to email the Court. His technical difficulties did not prevent him emailing. His non-response by any means of communication for a further 40 minutes in the face of the Court's invitation to make contact was sufficient for the Court to decide to proceed with the matter in his absence. 5. Defendants' Acceptance of Option 1 And The Parties' Percentage Ownership 6. At the directions hearing held on 15 February 2022 the defendants accepted the first option. They consented to the adoption of the referee's report but foregoing their claim to $67,060 of non-financial contributions in the calculation of their interest in the Nowra property. 7. The defendants' expression of their consent enabled the Court to move onto the calculation of each party's percentage ownership at the hearing on 23 February 2022. The defendants' concession would, as their own calculation in Table 1 below shows, result in the following calculation of the percentage ownership of the property. Table 1: Revised Ownership Calculations Contribution Plaintiff Defendant Revised Plaintiff Revised Defendant Property $70,000 $70,000 $70,000 $70,000 Financial $78,523 $0 $78,523 $0 Non-Financial $1,050 $67,060 $1,050 $0 Total $149,573 $137,060 $149,573 $70,000 Percentage Split 52.20% 47.80% 68.12% 31.88% 1. As set out in Table 1, the adoption of the referee's report subject to adopting the first option would adjust the ownership percentages to 68.12% for the plaintiffs and 31.88% for the defendants. This calculation does not include council rates, which the referee's report did not determine, and which, if outstanding, the Court ordered be paid by the trustee from the proceeds of sale of the property. In the December 2020 judgment (at [66]) the Court gave the parties an opportunity to try and establish that each of them paid the $15,200 in Council rates. But neither of them has taken up that opportunity; so, that amount is left out of the calculations, the fairest course in the circumstances. 2. The defendants' acceptance of option one means that the referee's report can be adopted allowing for the defendants' concession that they do not press their claim to $67,060 in non-financial contributions to the Nowra property, subject to one issue Mr Kevin Bowden raises. He contended in their 22 February 2022 written submissions that the defendants' concession means that a further $8,000 must now be added to the plaintiff's claim. 3. Mr Kevin Bowden's written submissions explains this argument in paragraph 5: "5. The report at Annexure F2, details the claims of the defendants, which have now been foregone, in the sum of $67,060. This sum includes an item described as Plumbing – non-financial Ian Bowden claim $8,000. The referee, in Annexure F1, has deducted that sum claimed – and now foregone – Plumbing Less IB claim $8,000 from the plaintiff's Total "evidenced". This deducted sum would be reversed as part of the defendants' election. Consequently, the plaintiff's Revised Financial total is $86,523 and the revised percentages are shown in the following table." 1. Mr Kevin Bowden revises the plaintiffs' contribution from $78,523 by adding $8,000 to make it $86,523, giving him a total contribution of $157,573. The resultant ownership percentages for the plaintiffs and the defendants, according to his calculations, are therefore 69.24% for the plaintiff and 30.76% for the defendant. 2. The defendants' claim for $67,060 non-financial expenses includes $8,000 for plumbing. The concession that the $67,060 is not being claimed is a concession that the defendants no longer pursue this $8,000. Mr Kevin Bowden makes the point that the same $8,000 has been deducted from the amount credited to the plaintiff in Annexure F1 to the referee's report. That is indeed how the referee's report is structured. But the concession by the defendants that the $8,000 is no longer being claimed does not mean that the same amount should be added back to the plaintiffs' claim. 3. This follows from the structure of the referee's report. In section 3 of his report the referee complained of the paucity of material that he had received from the parties. He obtained estimates of the likely costs associated with the construction at the Nowra property that were not dealt with in the material supplied by the parties. One of these was an estimate from an independent plumber for external drainage, internal drainage and fit out of tap ware, toilets and basins. The total range of this external estimate was $23,000 to $28,000. The referee adopted an average of $25,500. In his calculation he credited that amount to Mr Kevin Bowden but deducted from it the $8,000 that he had allowed to the defendants. But the defendants' concession that they could not prove the $8,000 does not mean that the Court should automatically infer that all the plumbing must have been done at the expense of Mr Kevin Bowden. The defendants' concession does not mean that $8,000 of the $25,500 was not done by the defendants. All the concession means is that this expense is unproven by either side. That means that the $8,000 should not be added back to Mr Kevin Bowden's claim and the defendants' calculation set out earlier in these reasons remains correct. 4. Sale of the Nowra Property and Orders for Possession 5. There has been considerable delay in bringing these proceedings to a head. These delays resulted from the Covid-19 pandemic and health issues on the plaintiffs' side. But the parties were on notice after the December 2021 judgment that in February 2022 the Court would address the issues of sale of the property, orders for possession and costs. 6. Mr Kevin Bowden has not demonstrated he has the financial capacity to purchase the defendants' interest in the Nowra property, so the trustees should begin to prepare the property for sale. Entering judgment for possession is a necessary step in achieving this. It ensures the trustees and their agents are unimpeded throughout the process of sale. Issuing a writ for possession to be executed by the sheriff produces a certain result, avoids future potential contests and is consistent with the overriding objective of aiming to conduct litigation justly, quickly and cheaply wherever possible: Civil Procedure Act 2005, ss 56 and 57. 7. Ordinarily in the Common Law Division's possession list up to approximately six weeks is given for the execution of a writ of possession. The Court will give Mr Kevin Bowden eight weeks from today to allow him to ready himself to vacate the property. This would mean that he would not be required to vacate before Thursday, 21 April 2022. An Opportunity for the Plaintiff to Purchase the Nowra Property 1. The orders appointing the trustees for sale authorise them to sell the property to a party to these proceedings "whether at auction or otherwise and without the payment of a deposit". The management of this scenario can be left to the trustees for sale. 2. The December 2021 judgment (at [133](3)) directed the plaintiffs to file evidence as to their financial capacity to purchase a one third interest in the Nowra property held by the defendants, by 27 January 2022. No evidence was filed by the plaintiffs in conformity with this order. 3. But the defendants have advanced evidence of a kerbside appraisal of the Nowra property that has been undertaken. On 7 February 2022 the defendants arranged for Mr Daniel Smith a real estate agent with One Agency – Elite Property Group, a local real estate agent to appraise the Nowra property. The agent prepared a sales report based upon local market statistics in the last six months. Mr Smith did not physically inspect the property but undertook the appraisal on the basis of Internet research including visual evidence of the property and based it upon his experience. 4. In Mr Smith's opinion a property such as the Nowra property would be "very well received in the marketplace" at present and "given the current buyer demand and recent sales" he was of the opinion that it may be able to achieve $800,000 or more "if a dream buyer was found". That it "should be able to achieve in the $750,000 – $800,000 range" considering the present market. And it "could achieve in the $700,000-$750,000 range any day of the week". Mr Smith acknowledged that there was some uncertainty associated with those ranges and they do not take into account any unforeseen problems with the property, for example such as construction work not approved by Council. The defendants advanced the appraisal as a basis to infer what funds should be set aside to secure any attempt by the plaintiff to buy out the defendants' interest in the Nowra property. Adopting the value range suggested by Mr Smith, 30 per cent of the property could be acquired at a sale price of $700,000 for $210,000, for $750,000 for $225,000 and for $800,000 at $240,000. The actual percentage found in favour of the plaintiff is slightly higher than this. 5. In written submissions filed on 22 February 2022, Mr Kevin Bowden indicates he wishes to purchase the defendants' share of the Nowra property and will provide the funding for the agreed purchase price subject to a valuation process. The written submissions referred to an "attached undertaking from Forbes Livestock Agency Pty Ltd" which is said to demonstrate "the requisite financial capacity of $300,000". But no undertaking was attached to the submissions. 6. Given the lack of supporting evidence and Mr Kevin Bowden's non-compliance with the Court's order, this is a matter which can now be managed by the trustees for sale. If they need directions on the issue they can approach the Court pursuant to the liberty to apply granted to them. But to assist the trustees on any such application, the Court can say it would give close consideration on such an application to the requirement for Mr Kevin Bowden to show that any funds to acquire the defendants' interest were available to him in liquid form or in the form of a readily realisable security. Given the delay that has already occurred in resolution of this matter, the Court would not expect the trustees to wait very long for Mr Kevin Bowden to demonstrate he had the necessary liquid funds. 7. Mr Kevin Bowden may intend to source those funds from the future sale of cattle. The submissions would seem to indicate this, although the underlying documents are missing. If the funds are to be derived from this source, then Mr Kevin Bowden should use the coming weeks to effect a sale of the cattle at the earliest opportunity. This is being flagged in these reasons so Mr Kevin Bowden is under no misapprehension about the short timescale expected for his realisation of the necessary liquid funds. 8. Costs 9. The Court, in its second judgment, reserved the questions of costs. The costs issues are divided into two parts. The first relates to the hearing before Pembroke J and the second relates to the hearing in relation to the adoption of the referee's report and the appointment of the trustees for sale. 10. In relation to the hearing before Pembroke J, the plaintiffs sought a constructive trust over the whole of the Nowra property. The defendants denied the plaintiff's claim. Although the plaintiff was successful in establishing a constructive trust the result was substantially based upon an agreement that each party would each own half the property. This was subject to what Pembroke J found were to be adjustments related to improvements to the property. 11. The defendants submitted that because Mr Kevin Bowden was unsuccessful in the claim for a declaration on an absolute basis as to ownership of the property, an order for costs should be made against the plaintiffs. This would exclude the costs thrown away addressing the expert report. Mr Kevin Bowden submitted he should have a costs order against the defendants for this part of the hearing. 12. Mr Kevin Bowden was never entitled to the whole of the property as claimed in the Statement of Claim but was only entitled to partial relief. Equally, the defendants were entitled to defend the claim but never as to the whole property. It is difficult to draw any other conclusion in these circumstances than that each party should bear its own costs of the proceedings before Pembroke J. 13. As to the defendants' Motion for adoption of the referee's report and the appointment of trustees for sale, Mr Kevin Bowden submits that the defendants should pay his costs of the adoption of the referee's report. He took the position that the referee's report should not be adopted because of multiple flaws and that it should be rejected in its entirety. In the hearing in relation to the referee's report the plaintiffs continued to re-contest the findings that Pembroke J had made as to an equal interest in the Nowra property. The plaintiffs took meritless points in relation to the alleged failure of the referee to consider Mr Kevin Bowden as the trustee of the Bowden Family Trust. Much of the written submissions and the oral hearing in relation to the adoption of the referee's report were taken up with issues on which the defendants were wholly successful. 14. The plaintiffs wasted considerable costs on the motion to adopt the referee's report and caused unnecessary expense to the defendants. The Court adjourned the hearing on 17 December 2020 to enable them to put on evidence and retain solicitors. They did not retain fresh solicitors. Mr Philip Bowden continued to act for the plaintiffs throughout the proceedings with the Court's leave. But they put on affidavit evidence which was of no practical assistance to the Court. This additional evidence was seeking to re-contest matters before Pembroke J and before the referee. It was not squarely directed to the real issue of what material had allegedly been proffered to the referee and allegedly not considered by him. The defendants' costs and time in dealing with this evidence was wholly wasted expenditure. 15. Mr Kevin Bowden also argues on the costs of adopting the referee's report that the defendants denied on affidavit that any funds had been provided by the plaintiff for the works on the property. In contrast, Mr Kevin Bowden submits "the plaintiff achieved a vouched total of $157,573, whereas the first defendant achieved a vouched total of nil". 16. This submission is misleading. The defendants have established that they contributed half the value of the land at $70,000. The only issue upon which the defendants failed was related to their concession after the referee's report in relation to their non-financial contributions which were not vouched. And this has been allowed for by a slight reduction in the overall costs recoverable by the defendants. But the picture presented in the plaintiffs' submissions of overall success by the plaintiffs after the hearing before Pembroke J is not correct. 17. And on the issue on which the plaintiffs were successful, their success was not the fault of the defendants, and was not curable by the defendants other than by taking up one of the options which was offered by the Court in the December 2021 judgment. The necessary variation to the report which will now take place was the product of the referee's choice of methodology, a methodology which the defendant did not urge upon the referee. The time in submissions taken in relation to the issue on which the plaintiffs were successful and the defendants were unsuccessful was minimal. And the variation to the report was very modest, as the orders today show. Thus, the appropriate order in relation to the adoption of the referee's report and related costs after Pembroke J's hearing is that the plaintiff should pay 80% of the defendants' costs. 18. On the plaintiffs' Motion dated 26 January 2022, the defendant submits this should be dismissed, with costs being awarded to the defendants. Mr Kevin Bowden's Motion of 26 January 2022 sought declarations he had a constructive trust over the property. But this motion is embarrassing in form and should be dismissed with costs. It seeks to impermissibly contest the findings of Pembroke J. Any challenge to Pembroke J's findings will need to take place in the Court of Appeal. 19. The other part of the defendants' current Motion relates to the appointment of trustees for sale under Conveyancing Act 1919, s 66G. The defendants were wholly successful on this claim for relief and Mr Kevin Bowden was wholly unsuccessful. Mr Kevin Bowden resisted the appointment of trustees for sale, creating a contest about an issue to which he had no real defence. The defendants should have their costs on that aspect of the Motion as well, on the ordinary basis. This too has been included in the award to the defendants of 80% of their costs after Pembroke J's hearing. 20. Mr Kevin Bowden also argued in submissions that the defendants had continually refused to discharge the first mortgage over the Nowra property which had been ordered by Pembroke J to be discharged. Mr Kevin Bowden argued this had prevented him from participating in the transfer of the property. 21. To the extent that this is advanced as a foundation for making a costs order against the defendants, it is incorrect. The defendants read the affidavit of Naomi Beth Birkett of 15 December 2020 at the hearing on 23 February 2022. The Court is satisfied on the basis of that affidavit that subsequent to Pembroke J's orders the defendants attempted to discharge the mortgage to the Bendigo and Adelaide Bank. Ms Birkett sought to make the administrative arrangements for a discharge of that mortgage through PEXA. Given that Pembroke J had declared that Mr Kevin Bowden had an interest in the property his co-operation with the discharge of mortgage was required. But the Court accepts that Mr Philip Bowden refused to allow Mr Kevin Bowden to sign any documents or to co-operate with the discharge process. It appears that there is no money owing on the mortgage and it can be discharged if it has not already been discharged, but it is not the defendants' fault that the mortgage is still on the title. This argument can be dismissed. A Specified Gross Sum Costs Order 1. As Mr Eardley of counsel suggested at the hearing on 23 February 2022 this is a case which should attract the Court's jurisdiction under Civil Procedure Act 2005, s 98(4)(c) for the making of a specific gross sum costs order instead of assessed costs. The categories of case in which the Court makes such orders are not closed. Such orders are made whenever it is just and convenient to do so. 2. Here a specified gross sum costs order is warranted. The parties have been in contest for over 10 years. These proceedings were commenced approximately five years ago. The remaining part of the proceedings involves the division of proceeds of sale of a property which, but for the question of costs, can readily be divided according to a simple formula. The division of the proceeds of sale is likely to be delayed by many months whilst a cost assessment takes place. Given the poor relations between the parties a costs assessment is likely to be fractious and expensive. A costs order has only been made in respect of one relatively short aspect of the proceedings and therefore a Civil Procedure Act, s 98(4)(c) order should be able to be made expeditiously. Such a sum can be fixed while the property is being sold, so there will be no delay in the division of the proceeds. Moreover, if the plaintiffs wish to buy out the defendants rather than effect a sale, the making of a specified gross sum costs order will give them early certainty about the sum which is required for such a buyout. Any delay in fixing the relative proportions of the plaintiff and the defendants' shares of the proceeds of sale may disadvantage the plaintiffs in seeking to secure the property and cause extra expense on the part of the trustees for sale. 3. The Court will therefore make a specified gross sum costs order under Civil Procedure Act, s 98(4)(c) and will make directions for the parties to file evidence in relation to that application, which will be dealt with on the papers. Extending the Stay 1. Mr Kevin Bowden through Mr Philip Bowden has indicated in submissions that he disagrees with the Court's December 2021 judgment and may wish to appeal from it. In those circumstances, the ordinary practice of the trial Court is to make orders and to stay them temporarily for a reasonable period to allow the plaintiff to bring, if he chooses, a stay application in the Court of Appeal. Otherwise the orders will take effect. I will make orders that extend the existing stay for three weeks from today, that is until 17 March 2022. That is a sufficient period to enable Mr Bowden to bring a motion in the Court of Appeal, should he so choose. But upon that date the orders will take effect, both the orders appointing the trustees for sale and the orders for possession. 2. The plaintiffs will have leave to bring any application to extend the stay provided they file a motion by Monday, 7 March 2022. Such a motion may be made returnable before the Court at 9am on 10 March 2022. Conclusions and Orders 1. For these reasons, the Court makes the following orders, notations and directions: 1. Order pursuant to Uniform Civil Procedure Rules, r 20.24(1)(a) that the referee's report of Mr Schon Condon dated 25 May 2020 and filed on 16 June 2020 ("the Motion") is adopted subject to the defendants' concession that it will no longer press their claim for non-financial contributions to the Nowra property of $67,060. 2. Declare that the land described in prayer for relief (2) of the Motion ("the Nowra property") is jointly owned as between the first plaintiff and the first defendant, with the first plaintiff's share being 68.12% and the first defendant's share being 31.88%. 3. Dissolve the stay on Orders (4) to (11) inclusive of the orders made on 17 December 2021, as and from 17 March 2022, noting that Orders (4) to (11) were as follows: "(4) Order that in light of the joint ownership in equity of the Nowra property Paul Gordon Falzon, Solicitor of Falzon Legal, and Stefan Psaltis, Solicitor of Praxis Lawyers, be appointed trustees ("the trustees") of the land described in prayer for relief (2) of the defendants' Motion filed on 19 June 2020 ("the Nowra property"). (5) Order that the Nowra property be vested in the trustees subject to any encumbrances, if any, affecting the entirety of the said land but free from encumbrances effecting any undivided share or shares therein to be held by the trustees upon the statutory trust for sale under the Conveyancing Act 1919, Part IV, Division 6. (6) Order that the trustees cause the Nowra property to be sold either by private treaty or by auction, but before any such sale the trustees shall ascertain with the Shoalhaven Council whether the Nowra property has approval for occupation and if it is not so approved the trustees are authorised to take all steps necessary to obtain approval for its occupation. (7) Order that the trustees may at their discretion appoint a real estate agent for the sale of the Nowra property. (8) Order that any party to these proceedings is entitled to purchase the Nowra property, whether at auction or otherwise without the payment of a deposit. (9) Order that Paul Gordon Falzon and Stefan Psaltis are authorised to charge at a rate not exceeding $400 per hour, and in the total sum not exceeding $2,000, exclusive of Goods and Services Tax, for professional fees and disbursements and that the trustees are authorised to deduct all such expenses from the proceeds of sale. (10) An order that the trustees may retain as required independent legal representation in their capacity as trustees for the sale of the land as may arise and that such costs be paid out of the proceeds of sale of the Nowra property. (11) An order that the trustees pay out the following from the proceeds of sale of the Nowra property: (a) The trustees' professional fees and disbursements; (b) Council rates, water rates, vendor's duty, land tax and any other statutory duties or charges if any; (c) The real estate agent's commission and charges; (d) Legal fees; (e) The amounts owing to any person having a secured interest; (f) Any other fees, charges, expenses or disbursements of or incidental to the sale of the Nowra property; and (g) Account to the parties for their portion of the balance as directed by the Court." 1. Enter judgment for possession of the Nowra property in favour of the trustees, Paul Gordon Falzon and Stefan Psaltis but stay such judgment until 17 March 2022 and such stay will be dissolved at the same time as the dissolution of the stay in Order (2) of these orders. 2. Grant a Writ for Possession of the Nowra property to the trustees and such writ: (a) shall issue upon the dissolution of the stay in Order (2) of these orders; but (b) shall not be executed before 21 April 2022. 3. Grant liberty to the first plaintiff to make an application with regard to the issue and execution of any writ for possession in respect of the Nowra property or any other variation to these orders by filing and serving any application and affidavit in support thereof by 5:00pm on Monday, 7 March 2022, and if so filed it may be made returnable at 9am on 10 March 2022. 4. Grant liberty to the trustees for sale of the Nowra property to approach the Court for directions in relation to the sale as required, upon the dissolution of the stay in Order (2) hereof. 5. Note that for the purposes of this order the costs of the proceedings will be divided into two parts, namely, the costs of the preparation for and hearing of the proceedings before Pembroke J, including the consequential orders made by him and the costs of the reference to the referee (called "the costs before Pembroke J"). And further note all other costs incurred after the costs before Pembroke J, including the costs of the defendants' motion filed on 14 June 2020 will be referred to as "the post Pembroke J costs". Using this terminology the Court makes the following orders in relation to costs: 1. make no order as to costs before Pembroke J, to the intent that each party will bear his and her own costs of that portion of the proceeding; and 2. order the plaintiffs shall pay 80 per cent of the defendants' post Pembroke J costs. 1. Direct the defendants to file and serve by 7 March 2022 any evidence and submissions upon which they seek to rely for orders under Civil Procedure Act 2005, s 98(4)(c) for a specified gross sum instead of assessed costs. 2. Direct the plaintiffs to file and serve by 21 March 2022 any evidence and submissions in reply on the making of a specified gross sum costs order instead of assessed costs. 3. Dismiss the plaintiffs' motion of 26 January 2022 with costs and such costs will be included in the costs order 8(b). 4. Otherwise grant the parties liberty to apply. ********** Amendments 25 February 2022 - defendant's to defendants' throughout judgment cases referred to in body of judgment added in the judgment coversheet [15] "Microsoft Teams" to "MS Teams" [19] "from the correspondence to him" to "previous correspondence sent to him" [22] second last line, "opportunity so that amount are" to "opportunity; so, that amount is" [23] third line, delete full stop before comma [33] first line, "evidence that a" to evidence of a" [34] last line, "percentages" to "percentage" [48] second last line, "awar" to "award" [52] "Such sum" to "Such a sum" [54] fourth line, "period to allow plaintiff" to period to allow the plaintiff" [55] second last line, "Such motion" to "Such a motion"; returtnable" to returnable" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2022