New South Wales Supreme Court CITATION : Hillston v Bar-Mordecai [2000] NSWSC 1091 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3240 of 1998 HEARING DATE(S) : 23 November 2000 JUDGMENT DATE : 23 November 2000 PARTIES : Allan David James Hillston (Plaintiff) Michael Jacob Bar-Mordecai (Defendant) JUDGMENT OF : Windeyer J at 1 LOWER COURT Supreme Court (Master) JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Master McLaughlin JUDICIAL OFFICER : COUNSEL : Mr J Whittle SC with him Mr B Burke (Plaintiff) in person (Defendant) SOLICITORS : Shaw McDonald (Plaintiff) in person (Defendant) CATCHWORDS : REAL PROPERTY - trustees for sale under s66G of Conveyancing Act - appeal from orders of Master ordering appointment of trustees for sale and refusing adjournment - no grounds to interfere with discretionary decisions - PROCEDURE - stay of proceedings on orders - application for leave to appeal to the High Court from decision upon which co-ownership entitlement based - stay refused LEGISLATION CITED : Conveyancing Act 1919 s66G DECISION : See paragraphs 20, 23, 25-28 1 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J THURSDAY 23 NOVEMBER 2000 3240/98 ALLAN DAVID JAMES HILLSTON v MICHAEL JACOB BAR-MORDECAI JUDGMENT 1 HIS HONOUR: This is an appeal from orders of Master McLaughlin of 16 April 1999 under which he ordered that trustees for sale be appointed of the land known as 30 Eastbourne Avenue Clovelly, being the land in Certificate of Title Volume 3295 Folio 140, such order being made pursuant to s66G of the Conveyancing Act 1919. 2 There is also an appeal from the Master's refusal to grant a stay of the proceedings before him. Both matters can be dealt with at the same time because in fact the same matters were involved in the Master's decisions. 3 On the application before the Master, the claim for co-ownership was brought by Mr Hillston on the basis that he, as administrator, of the will annexed of the estate of Evelyn Hillston deceased was entitled to a two thirds interest in the subject property, with the appellant, Dr Bar-Mordecai, being entitled to the other one third interest. I am told that the present proceedings try to reclaim for the estate of the deceased that one third interest but that is not an issue with which the appeal is concerned. 4 The Master made his orders on the basis of the evidence before him, namely that the property in question was held in co-ownership; that in ordinary circumstances that would entitle a co-owner to the appointment of trustees for sale and that circumstances did not exist where it would be proper to refuse such an order. 5 It is right to say, as the appellant who has appeared in person before me today has made quite clear, that decisions of this Court which gave rise to the right to claim the order are not accepted as by him. Those decisions are a decision of Justice Einstein in proceedings in the Probate Division number 120009 of 1994 and the decision of the Court of Appeal in proceedings number CA40568 of 1998 dismissing the appeal from the decision of Justice Einstein. 6 In essence in the original probate proceedings the question at issue was whether or not Dr Bar-Mordecai was the defacto husband of the deceased Mrs Hillston at the date of her death and whether, in any event, the deceased died without having revoked a will previously made by her. 7 His Honour found that the plaintiff's case as to the defacto relationship he claimed failed. He also found that a will made by the deceased had not been revoked and in the circumstances ordered that letters of administration with a copy of that will annexed be granted to Mr Hillston. As I understand it, that second finding was to the advantage of Dr Bar-Mordecai who took some benefit under that will. 8 Had there been an intestacy and had Dr Bar-Mordecai succeeded in his claim to have been the defacto husband of the deceased at her death, then, as I understand, it in the events which had happened he would have become entitled to the whole of her estate on intestacy. 9 In the proceedings before the Court of Appeal there was an attack made on the findings of the trial judge as to the acceptability of the evidence of a number of witnesses whom Dr Bar-Mordecai claimed committed perjury. That claim was dealt with in the Court of Appeal and was found not to have substance. 10 There is one other matter to which I should refer as considerable reliance has been placed on it by the appellant. That is that proceedings were taken against him by the representative of the Health Care Complaints Commission of New South Wales in the Medical Tribunal of New South Wales. It is not necessary to go into that matter and in fact the only matter of relevance which is an admitted fact is that the Tribunal in its judgment stated that there was no doubt in its mind: And indeed it is common ground between the parties that there was a very close personal relationship between the respondent and Mrs Hillston. There is evidence to support the respondent's contention that at least for some part of the time it was a sexual relationship. 11 The Tribunal went on to state that the proceedings before it required a finding of a different kind from that which arose on the issue in the probate proceedings. 12 It is accepted that the appellant before me has applied for special leave to appeal for leave to appeal to the High Court of Australia from the decision of the Court of Appeal. What is argued is that as it is accepted that one of the complaints before the Medical Tribunal, namely that Dr Bar-Mordecai had given false evidence before Justice Einstein, was withdrawn then on the basis of that fact and on other matters which the appellant would seek to put before the High Court of Australia to establish that witnesses as to his relationship with the deceased themselves committed perjury, it would be highly likely that his application for leave to appeal would succeed and that ultimately his appeal would succeed or perhaps that a new trial would be ordered. 13 The notice of appeal goes to those matters and also makes what I will describe here in a neutral way as a strong attack on the decision of Justice Einstein. 14 The question then before the Court is whether or not the Master in the exercise of his discretion in two matters before him misapplied the law or otherwise came to decisions which could not stand. The two matters before him can really be coalesced into one because what he was deciding on the motion for a stay and on the application for the appointment of trustees for sale was whether or not the fact that at the time he made the decision there was an appeal to the Court of Appeal pending was a proper ground either to stay the motion for the appointment of trustees or not to appoint those trustees. In the first instance, he found that having regard to the decision of Justice Einstein which would stand unless some contrary order were made by the Court of Appeal, there was no basis to look behind that. I should add that although when he dealt with the matter, the Court of Appeal's decision had not been handed down and was not handed down until 16 May 2000, the reasons which he then gave received further support from the later decision on appeal. 15 The second matter which perhaps was a matter for consideration in the exercise of the discretion was whether or not there was some ground to consider that there might be no jurisdiction or there might be found to be no jurisdiction to make an order under s66G of the Conveyancing Act because it might have been found, if the appeal to the Court of Appeal was successful, that there was no entitlement in Mr Hillston as co-owner to seek such an order because he, Dr Bar-Mordecai, would have been entitled to the whole of the estate of the deceased. 16 I can see no basis on which it could be said that the Master misdirected himself in the decision to which he came and I think it is right to say that as a result of the Court of Appeal decision, further support would be given to his reasoning. 17 It would follow that the appeal ought to be dismissed. In my view it is right to take into account on the appeal before me the new evidence I admitted, namely the admitted fact that there is an application for leave to appeal to the High Court of Australia. In my view that takes the matter no further than the position before the Master when there was an appeal to the Court of Appeal which was undecided at that time. All it means is that there remains a finding based on fact which the appellant has failed to upset in one court and which the likelihood of his upsetting it in a higher court could not be said to be strong. In fact such evidence was really only relevant to a further application for stay. 18 In all the circumstances I consider that the decision of the Master was a decision properly available to him and that the appeal should therefore be dismissed and I propose to make that order. 19 I should add that the entitlement to any monies arising as the result of a sale will not be finally determined by the trustees at least until further order of the Court as that is provided for in the orders of Master McLaughlin which is in itself somewhat unusual but at least relieves the appellant here from any concern that the administrator might distribute or dissipate those monies if they were paid to him by the trustees for sale. 20 The orders are therefore that the appeal from the orders of Master McLaughlin of 16 April 1999 be dismissed with costs. The exhibits can be returned at this stage. 21 An application has been made, consequent upon my finding dismissing the appeal, by the appellant for a stay of proceedings on the order for sale pending the determination of the proceedings in the High Court of Australia. 22 For much the same reasons as I have already given on the appeal, it is my view that a stay should not be granted here where there is an application for leave to appeal based on findings of fact, and an appeal has been already dismissed by the Court of Appeal. It could be said that the prospects of success are not great and that the respondent applicant for the appointment of trustees for sale is entitled to have those orders put into effect. Thus I do not consider that it is appropriate for me to grant a further stay, the present stay granted by Master McLaughlin is only until the determination of the appeal. 23 In those circumstances, I refuse that application but I would like to point out to the appellant that this does not preclude him from making that application, either to the Court of Appeal or to the High Court of Australia. 24 There is now before the Court a notice of motion under which the trustees for sale seek possession of the subject property. It is clear that they are entitled to that order as against Dr Bar-Mordecai. There is no basis for refusal of an order for possession, nor for refusal of leave to issue a writ of possession. However, I have stated that I consider Dr Bar-Mordecai should be given a short period of time in case he wishes to apply to some other court for a stay of proceedings on the order for sale, any judgment for possession, of course, follows the orders on that application for appointment of trustees for sale and the dismissal of the appeal against those orders. I therefore propose to enter judgment for possession. 25 I will order that the applicants have leave to issue a writ of possession postponed to give the respondent an opportunity of applying for a stay. 26 In relation to the notice of motion filed on 14 August 2000, I make the orders as sought in paragraph 1. 27 I give judgment for possession for the defendant on the notice of motion. I give leave to the applicants to issue a writ of possession after 15 December 2000. 28 I order that the respondent pay the applicant's costs of the notice of motion for possession. ********** Last Modified: 12/01/2000 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.