Anthony John Warner as the Trustee of the Bankrupt Estate of Stephen Scott v Roslyn Lawford [2012] NSWSC 1055

Supreme Court New South Wales

Medium Neutral Citation: Anthony John Warner as the Trustee of the Bankrupt Estate of Stephen Scott v Roslyn Lawford [2012] NSWSC 1055 Hearing dates: 5 September 2012 Decision date: 05 September 2012 Jurisdiction: Equity Division Before: Lindsay J Decision: Trustees appointed. The Defendant to pay the Plaintiff's costs of the proceedings Catchwords: REAL PROPERTY - Sale of Land - Appointment of Trustees Legislation Cited: Conveyancing Act 1919 (NSW) Category: Principal judgment Parties: Anthony John Warner as the Trustee of the Bankrupt Estate of Stephen Scott (Plaintiff) Roslyn Lawford (Defendant) Representation: S Clemmett (Plaintiff) Leonard Legal (Plaintiff) File Number(s): 2011 / 317302

Judgment - EX TEMPORE 1The plaintiff is the trustee of the bankrupt estate of Mr Stephen Scott. Mr Scott was made bankrupt on 15 December 2009. 2The defendant, apparently, is the de facto partner of Mr Scott. 3What is clear, though, is that the plaintiff (as the trustee of Mr Scott's bankrupt estate) and the defendant are registered as proprietors of an estate in fee simple in land contained in certificate of title folio identifier 1/502705, being the property known as x xxxxxxx xxxxxx, Hornsby in the State of New South Wales. 4A search of the title obtained by the plaintiff's solicitors yesterday shows that the plaintiff and the defendant are registered as proprietors as tenants in common in equal shares, and the property is the subject of a mortgage interest in favour of Westpac Bank. 5These proceedings were commenced by summons filed on 5 October 2011. 6On 18 November 2011 the plaintiff filed an amended summons. That is the process that is before the Court for final hearing today. By the amended summons the plaintiff seeks, in substance, an order under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale in relation to the subject land. 7Although the defendant has been represented in the proceedings, successively, by two different firms of solicitors, both have ceased to act for her and, so far as the plaintiff is aware and the evidence establishes, she no longer has legal representation. 8The defendant has not appeared before the Court today. 9The plaintiff has adduced evidence that establishes that she is in fact aware of today's hearing. That evidence includes evidence of a telephone conversation, yesterday, between the defendant and a solicitor (Kellie Van Munster) in the employ of the solicitor for the plaintiff. That telephone conversation included an exchange in which the defendant answered in the affirmative a question whether she was aware of the hearing, and in the negative a question about whether she had instructed another solicitor. It also included a statement on the part of the defendant to the effect that she had no intention of instructing another solicitor. 10Because of evidence about that telephone conversation, and the non-appearance of the defendant at the commencement of today's hearing, I adjourned the proceedings for a short time to enable Ms Van Munster to ascertain whether she could speak to the defendant by telephone to clarify whether the defendant's attendance before the Court might be expected. 11At this point I should mention that, before court this morning, my associate received a telephone call from a male person who identified himself as "Stephen Scott" (presumably, the bankrupt). The caller said that he had sent a fax to the Court about today's hearing; but no fax has been located. The purpose of the call, apparently, was to notify the Court that the caller did not propose to attend the court in answer to a subpoena addressed to him issued at the request of the plaintiff. 12After a short adjournment of the proceedings, Ms Van Munster gave evidence of a telephone conversation between herself and Mr Scott, during the adjournment, in which Mr Scott, in substance, advised that the defendant did not intend to appear before the Court today and that she was seeking legal advice. 13In light of the history of the proceedings, including the fact that the defendant has had the benefit of legal advice from two separate firms of solicitors, I determined that the appropriate course was for the amended summons to be heard without further delay notwithstanding the absence of the defendant. 14I have been fortified in that determination by the absence of any statement by or on behalf of the defendant providing, even in outline, a reasoned case in opposition to the relief sought in the amended summons. 15No cross-claim has been filed on behalf of the defendant asserting that the beneficial ownership of the subject land differs from the legal ownership. 16At one stage, it appears, the defendant, through solicitors then retained by her, did contemplate filing a cross-claim. As it happens, however, no cross-claim has been filed. 17I am satisfied that, as one of two registered proprietors of the subject land, the plaintiff is entitled to an order for the appointment of trustees for sale under s 66G. I am satisfied that, before the commencement of these proceedings, and since their commencement, the plaintiff has taken reasonable (but unsuccessful) steps to secure the agreement of the defendant to a sale. 18On the evidence adduced in support of the amended summons, there appears to be no impediment to a grant of relief similar to that sought, more particularly, in paras 4, 5, 6 and 7 of the amended summons. That relief focuses upon s 66G. 19In the course of today's hearing, counsel for the plaintiff indicated that the plaintiff had, before today, notified the defendant that the plaintiff would not be seeking any relief in terms of paras 1, 2 and 3 of the amended summons. Those paragraphs contain prayers for relief designed, ultimately, to obtain vacant possession of the subject land and orders to compel the defendant to aid the process of selling the land. 20If there is any necessity for court process to permit vacant possession of the land to be obtained to facilitate a sale, that process should prima facie, in the fullness of time, be pursued by the trustees for sale to be appointed rather than by the plaintiff. 21The plaintiff has nominated two trustees for sale. One is Nicholas James David Crouch. The other is Shabnam Amirbeaggi. The requisite consents and affidavits of fitness have been placed in evidence before the Court. 22Accordingly, I propose to make orders substantially to the effect of those sought in paras 4, 5, 6 and 7 of the amended summons. The precise form of the orders will need to deviate from the form of those sought in order to accommodate the facts of the case. 23I make the following orders: (a) Order that the land contained in certificate of title folio identifier 1/502705 vest in Nicholas James David Crouch and Shabnam Amirbeaggi, subject to any encumbrances affecting the entirety thereof and free from any encumbrances affecting any undivided shares therein upon the statutory trust for sale created pursuant to division 6 of part 4 of the Conveyancing Act 1919 (NSW). (b) Order that the defendant be at liberty to purchase the land whether at auction or by private treaty. (c) Order, subject to any further order of the Court, that upon completion of the sale of the land the trustees disburse the proceeds of sale as follows: (i) discharge of any registered mortgage secured against the land. (ii) payment of any real estate agent's commission upon sale. (iii) payment of any ordinary rates, outgoings and sales duties payable to the Office of State Revenue. (iv) payment of the trustees' remuneration and expenses, and any other legal costs incurred in the conduct of the sale. (v) payment of residual proceeds of sale into a controlled money account for the benefit of the plaintiff and the defendant, subject to any further order of the Court. (d) Order that the trustees and the parties have liberty to apply for directions relating to the conduct of the sale of the land, or the further conduct of the proceedings generally. (e) Order that the defendant pay the plaintiff's costs of the proceedings.