Supreme Court New South Wales Medium Neutral Citation: Angius v Salier; Angius v Angius [2016] NSWSC 1622 Hearing dates: 15 November 2016 Date of orders: 15 November 2016 Decision date: 15 November 2016 Jurisdiction: Equity Before: Kunc J Decision: Stay of s 66G sale refused Catchwords: PRACTICE – Stay of orders for sale – No issue of principle – Case management of complex family dispute – Conveyancing Act 1919, s 66G Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Category: Procedural and other rulings Parties: 2016/14294 proceedings: John Angius (Plaintiff) Gordon A Salier AM (First Defendant) Angius Hotel Investments Pty Ltd ACN (Second Defendant) Togumi Pty Ltd ACN 003 089 281 (Third Defendant) J & L Angius Pty Ltd ACN 000 803 510 (Fourth Defendant) 2012/396544 proceedings: Giovanni (John) Angius (Plaintiff) Gordon A Salier AM as the Executor of the Estate of the late Laura Angius Salier (First Defendant) Robert Angius (Second Defendant) Representation: Counsel: 2016/14294 proceedings: S Galitsky (Plaintiff) M S Willmott SC and N Simpson (First Defendant) 2012/396544 proceedings: S Galitsky (Plaintiff) M S Willmott SC and N Simpson (First Defendant) V Culkoff (Second Defendant) Solicitors (both proceedings): George Loupos & Associates (Plaintiff) Teece Hodgson & Ward (First Defendant) File Number(s): 2016/142494 and 2012/396544 Publication restriction: No EX TEMPORE Judgment 1. The Court has before it motions in proceedings 2012/396544 (the "2012 proceedings") and 2016/142494 (the "2016 proceedings"). In both sets of proceedings the first defendant is Mr Gordon A Salier AM, the administrator of the estate of the late Laura Angius. The plaintiff in the 2016 proceedings and the applicant on a motion in the 2012 proceedings is Mr Giovanni (John) Angius ("Mr Angius"), the estranged husband of the late Laura Angius. Also appearing today was the second defendant in the 2012 proceedings, Robert Angius, who is the principal beneficiary of the estate of the late Laura Angius (the "deceased"). Mr Salier was represented by Mr M S Willmott of Senior Counsel with Mr M Simpson of Counsel. Mr S Galitsky of Counsel appeared for Mr Angius, and Ms V Culkoff of Counsel appeared for Mr Robert Angius. 2. The motions in the 2016 proceedings seek to strike out certain parts of Mr Angius' statement of claim and ask the Court to make directions generally. The Court has decided that some paragraphs of the statement of claim should be struck out, albeit with leave to re-plead some (but not all) of those paragraphs. The parties have indicated that they do not require reasons in relation to the Court's disposition of that motion. 3. In relation to the motion for directions, while it is unnecessary for me to record reasons in support of the specific directions that I will ultimately make, I should record the Court's overall intention and approach to these matters. 4. The deceased died in 2012. The administration of the estate has been mired in litigation for some five years. Very little has been able to be done. Some of that litigation was inevitable. There were proceedings heard by Hallen J concerning what documents should be admitted to probate. There were then proceedings heard by Ball J in relation to the proper construction of the informal will that was ultimately admitted to probate. 5. Mr Angius then brought further proceedings, which were settled. There are now three sets of outstanding proceedings. There are the 2016 proceedings in which Mr Angius is the plaintiff. There is a set of family provision proceedings, currently being managed in the Family Provision List, brought by Ms Jenny Angius, one of the deceased's daughters. There is also a building claim being brought against various Angius interests in relation to a property development which also features in the 2016 proceedings. 6. The building claim can be left to one side. It involves quite discrete issues and third parties. However, the 2016 proceedings and Ms Angius' family provision proceedings are really two emanations of a larger family dispute between Mr Angius and other members of the Angius family. I have no doubt that, if left unchecked by stringent case management and the rigorous application by the legal advisors of their obligations under s 56 of the Civil Procedure Act 2005 (NSW), these family disputes have the potential to go on for years and consume a great deal of what is, on any view, a very large estate. 7. The approach I propose to adopt by way of case management is to manage the 2016 proceedings and, subject to the views of the Family Provision List judge, Ms Angius' family provision proceedings with a view to getting them sufficiently ready so that the Court can order a mediation involving all parties to both sets of proceedings. Whether or not the expectation of a successful mediation is a triumph of hope over experience is a matter that remains to be seen. Nevertheless, it seems to me entirely consistent with contemporary case management principles that every effort should be made to facilitate the resolution of these proceedings by agreement before the Court's time (and the parties' money) is further consumed by extensive hearings. 8. Turning to the 2012 proceedings, Mr Salier sought orders for possession of Mr Angius' property at Coogee (the "Property"). Mr Angius filed an opposing motion for stay of the orders of possession. 9. In order to understand the Court's decision it is necessary to say something about the history of the Court's earlier orders in relation to possession of the Property. In yet another set of proceedings between the parties (proceedings 2011/00290751), Registrar Musgrave made orders on 18 November 2011 which, relevantly, exercised the Court's jurisdiction under s 66G of the Conveyancing Act 1919 (NSW) and appointed Messrs George Vlahakis and Thomas Bombotas as trustees for sale of the Property. For reasons which it is unnecessary for me to repeat, those orders were then caught up in proceedings in the 2012 proceedings which had been brought by Mr Angius. 10. Ultimately, in the 2012 proceedings, a notation was made on 4 November 2015 as part of a series of orders made by Hallen J resolving those proceedings to this effect: "18. NOTE the agreement of the Cross Defendant [Mr John Angius] that he will provide the trustees for sale with vacant possession of the property at xxx Coogee within 28 days of the date of these orders." 1. At the same time as making the notation referred to in the preceding paragraph, Hallen J made orders setting aside the orders made by Registrar Musgrave, referred to in paragraph [9] above, and substituting them with these orders: "1. ORDER that order 2 made by Musgrave R on 18 November 2011 be set aside and the following orders be made: 2. The following orders shall apply: 2.1 That pursuant to s 66G of the Conveyancing Act 1919: 2.1.1 Two trustees shall be appointed to effect the sale of the property at xxx Coogee, being the whole of the property in Folio Identifier xxx ["the First Coogee Property"], by auction. 2.1.2 Gordon Albert Salier AM, Solicitor and Douglas John May of Chapman Gould be appointed joint Trustees of the First Coogee Property. 2.1.3 The said land be vested in such trustees subject to any encumbrances affecting the entirety of the said land but free from encumbrances, if any, affecting any undivided share or shares therein to be held by the said trustees upon statutory trust for sale under Division 6 Part IV of the Conveyancing Act 1919. 2.1.4 The First Coogee property vest in such trustees subject to the following direction: 2.1.4.1 the First Coogee property is to be listed for sale through such real estate agent experienced in the sale of similar properties in the Coogee region, at the discretion of the trustees; 2.1.4.2 upon the sale of the First Coogee Property, the proceeds of sale, after payment of costs and expenses be distributed as follows: (a) In payment of all amounts secured by any mortgage, security or encumbrances secured over the First Coogee Property; (b) To the appointed real estate agent in payment of its reasonable commission and expenses; (c) To the trustees for their reasonable costs of acting for the vendors on the sale of the First Coogee Property; (d) To Gordon Albert Salier AM as administrator of the Estate of the late Laura Angius and to the Second Defendant in equal shares. 2.1.5 An order that the trustees shall be at liberty to execute any and all necessary conveyance or other documents and to do all such things as are necessary in relation to the performance of these orders. 2.1.6 There be granted to the parties, and to the Trustees, liberty to restore on seven days' notice to obtain such other relief to enable effect to be given to these Orders or the discharge thereof. 3. Grants liberty to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing the orders made in these proceedings." 1. Notwithstanding the making of the orders set out in paragraphs [9] and [11] above on 4 November 2015, the Property has not been sold. The evidence was not entirely clear. However, by reference to statements from the bar table, it would appear that for at least some of the intervening time Mr Angius has been in residence at the Property and, at other times, he has not. His case, as presented today, was that he is in residence at the Property. It was put by Mr Galitsky that Mr Angius wants to stay in the Property, which was the family and former matrimonial home. There was evidence from Mr Angius, which was admitted without objection for the purposes of today's hearing, that the Property (which had formerly been owned by him and the deceased as joint tenants) was subject to a mortgage which Mr Angius has reduced by $2.476 million since the deceased's death. There was also evidence that Mr Angius currently owns a holiday home at Burradoo (which he says he does not go to because it is not in good condition and because of his poor health). He also has a daughter, with whom it was said he now has "strained" relations, who lives in the same street as the Property. 2. By reference to all of those matters, Mr Galitsky submitted that this was a somewhat unusual situation where the process of sale of the Property should abide the outcome, in particular, of the 2016 proceedings. The gravamen of this submission was that the amount of money which was owed to Mr Angius by the deceased's estate in respect of 50% of the mortgage reductions that he had made and the amount that he might recover in the 2016 proceedings would, in effect, equals or exceeds the value of the deceased's interest in the Property. Mr Galitsky's submission was that, if Mr Angius succeeded in the 2016 proceedings, there would be a basis to set aside the Court's orders for sale of the Property on the basis that if Mr Angius wanted to stay in the Property he should be allowed to do so after the amounts owed to him were set-off against amounts that he might owe the estate. 3. I am not satisfied that the prospect of the set-offs referred to by Mr Galitsky is sufficiently strong to justify interrupting the proper execution of orders which were originally made by the Court in 2011 and, in an altered form, re-made in November 2015. Moreover, at the time the orders were, as I have put it, re-made in 2015, it was on the express basis that Mr Angius had agreed to provide vacant possession of the Property. It is completely unacceptable that the administration of the estate and the execution of the Court's orders have been held up for a period of years. Mr Salier ought to be put in a position where he can call in this substantial asset of the estate and bring it to account in the administration of the estate. The Court does not doubt that, after payment of all proper expenses, whatever Mr Angius is owed out of the proceeds of sale of the Property will be paid to him. 4. The real difficulty in Mr Galitsky's submission, is that, apart from the payments which Mr Angius says he has made to reduce the mortgage over the Property, on the state of the material presented to me today, the prospect of Mr Angius receiving substantial sums from the estate as a result of the claims made in the 2016 proceedings is very weak. In saying that, I immediately emphasise that I am not expressing any final view on the viability of any claim that Mr Angius may ultimately litigate once he has propounded an amended statement of claim in accordance with orders which I will shortly make as a consequence of Mr Salier's strike-out application in the 2016 proceedings. All I have before me today are the claims made in the statement of claim, a large part of which I have struck out with leave to re-plead, and various assertions about possible claims which Mr Angius may have against the estate. It may be that in due course those claims are framed and proven in a way that results in a substantial debt from the estate to Mr Angius. I can only make the decision based on what is before me today. 5. To conclude, by way of summary, the weight to be given to the carrying through of the Court's orders and the need for the due administration of an estate, the affairs of which have been significantly held up over a number of years, in my opinion far outweigh the prospects of Mr Angius' success in the 2016 proceedings as they present themselves to me today. For these reasons the Court will make orders for possession, allowing a suitable time for Mr Angius to vacate the Property in order to enable it to be prepared and marketed for sale in the first quarter of next year. ********** 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: 17 November 2016