Micallef v Ofria [2000] NSWSC 750

New South Wales Supreme Court

CITATION : Micallef v Ofria [2000] NSWSC 750 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4597 of 1997 HEARING DATE(S) : 2 March, 7 April, 29 June 2000 JUDGMENT DATE : 2 August 2000

Gerald Micallef (First Plaintiff) PARTIES : Normal Micallef (Second Plaintiff) Roland Ofria (First Defendant) Marlene Ofria (Second Defendant) JUDGMENT OF : Windeyer J at 1

LOWER COURT Supreme Court (Master) JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Acting Master Berecry JUDICIAL OFFICER :

COUNSEL : Mr L. de Vere Tyndall (Plaintiffs) Mr R.W. Cameron (Defendants) SOLICITORS : John Burrell Solicitors (Plaintiffs) Tony Vella (Defendants) CATCHWORDS : APPEAL from decision of Master - enquiry by Master into accounts on order for sale of property - whether rents received by plaintiffs - whether allowance should be made for improvements carried out by the defendants - no evidence of cost of improvements or of increase in value of the property - appeal allowed in part CASES CITED : Avard v EH Harrison & Son Pty Ltd (unreported McLelland CJ in Eq 13 August 1989) Pollicino v Pollicino (unreported, Windeyer J 14 August 1997) DECISION : See paragraph 20

1 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

WEDNESDAY 2 AUGUST 2000

4597/97 Gerald Micallef & Normal Micallef v Roland Ofria & Marline Ofria

JUDGMENT Outline 1 This is an appeal from a judgment of Acting Master Berecry which resulted in a certificate under which he found that the defendants owed the plaintiffs $24,481.99. The certificate is dated 22 October 1999. 2 The proceedings between the plaintiffs, Mr and Mrs Micallef and the defendants, Mr and Mrs Ofria, related to premises 431 Gardiners Rd Mascot. Mr and Mrs Micallef owned a one half interest in those premises as tenants in common with Mr and Mrs Ofria as to the other half interest. It was an investment property. 3 On 4 December 1997 an order was made by consent for sale of the property and for an account to be taken of the income, expenditure and transactions concerning the property. There was no order for a Master to conduct an enquiry on the account but it was obviously assumed that it would happen and in fact it did. It was that account which was the subject of the certificate in question. One of the orders which was made was that the defendants pay to the plaintiffs the amount if any found due to them on the taking of the account together with interest thereon. As far as I can ascertain from the file, judgment has not been entered and it is not clear how this was to be done without some further consideration. The learned Acting Master did not consider the question of interest and he was not directed to enter judgment on his certificate. I have expressed the view before that in matters such as this it is more appropriate to bring the matters back before a judge on motion for further consideration and variation of the Master's certificate rather than by appeal. There is a significant difference between a Master's determination of an enquiry ordered by the judge as part of proceedings as delegate of a judge, and a decision of a Master exercising the powers of a court under jurisdiction given pursuant to the rules where an appeal is an appropriate procedure. However this matter was discussed by McLelland CJ in Equity in Avard v EH Harrison and Son Pty Ltd (unreported, 13 August 1989) and I expressed my views on this in Pollicino v Pollicino (unreported, Windeyer J, 14 August 1997). Appeal 4 The appeal concerns two parts of the judgment which gave rise to the certificate. The first related to rent received from the property and ordinary outgoings on the property, the Acting Master dividing this part of the enquiry into three periods, namely 27 Jan 1986 to 31 May 1987; 1 June 1987 to 1 July 1990; and 2 July 1990 to June 1998. The appeal relates to the second period only. The acting Master found in relation to that period that the defendants owed to the plaintiffs $30,222. The second complaint about the judgment giving rise to the appeal is that the Master made no allowance for the costs of renovation and maintenance which the defendants claimed the first defendant had carried out on the property. It is necessary to deal with these matters in turn.