Supreme Court New South Wales Medium Neutral Citation: Angius v Salier; Angius v Angius [2017] NSWSC 198 Hearing dates: 6 March 2017 Date of orders: 07 March 2017 Decision date: 07 March 2017 Jurisdiction: Equity Before: Slattery J Decision: Stay granted on terms. Costs reserved. Catchwords: TRUSTEES FOR SALE – Conveyancing Act s 66G, 66H and 66I – property jointly owned in equal shares – one co-owner deceased – other co-owner occupies property - trustees for sale appointed – writ for possession of property issued in favour of trustees in 2015 - occupier seeks stay of writ in 2016 and stay declined – writ ordered to lie in court – writ will be issued imminently - whether writ should now be stayed on motion of occupying co-owner – whether trustees have consulted with occupying co-owner under Conveyancing Act s66H. Legislation Cited: Conveyancing Act 1919 s66G, 66H and 66I Cases Cited: Angius v Salier; Angius v Angius [2016] NSWSC 1622 Dixon v Rory (1991) 5 BPR 11, 655 George v McDonald (1992) 5 BPR 11,659 Penny Nominees Pty Limited v Fountain (No. 3) (1990) 5 BPR 11, 284 R v Secretary of State for Social Services; Ex Parte Association of Metropolitan Authorities [1986] 1 WLR 1 Re Dracup [1894] 1 Ch 59 Salier v Angius [2015] NSWSC 853 Category: Procedural and other rulings Parties: In 2012/396544 proceedings: Plaintiff: John Angius First Defendant: Gordon A. Salier AM Plaintiff: Giovanni (John) Angius First Defendant: Gordon A. Salier AM as the Executor of the Estate of the late Laura Angius Salier Second Defendant: Robert Angius Representation: Counsel: Plaintiff: D. Cook SC Second Defendant: V. Culkoff Solicitor: First Defendant: C. Birtles, Teece, Hodgson & Ward solicitors File Number(s): 2012/396544; Publication restriction: No Judgment 1. This judgment deals with but a small part of a family dispute involving a father and a son. Trustees for sale (the trustees) have been appointed to a suburban property the father occupies. The trustees have a writ for possession of the property. The Sheriff is due to execute the writ this morning at 10.30am. In a motion filed and argued only yesterday the father seeks a stay of the writ for possession on terms. But the trustees press for its execution this morning. The son supports them. It is now 9.30am. The Court has decided to grant the stay requested. 2. These reasons seek to summarise with necessary economy the bare essentials of a wide and already long-lived family conflict. This is the duty list. The Court is not giving judgment and making finding of fact as upon a final hearing. Inevitably much cannot be covered. 3. The Court has been assisted by the written and oral submissions of the solicitors and counsel on all sides to focus upon the real issues in contest. The background to the stay application, and then relevant aspects of the broader dispute must now be set out. Angius Family Disputes and Litigation - 2011 to 2016 1. Giovanni (John) Angius is a self-funded retiree of 80 years of age. He lives, and has lived on and off for about 20 years, at a residential property at Denning Street, Coogee ("the property"). He and his wife, Laura Angius purchased the property together in 1988. She died in January 2012, bitterly estranged from her husband. 2. The parties generally used the first names of members of the Angius family in their submissions. So for convenience and without intending any disrespect to any family members, in these reasons this Court will do the same. 3. John and Laura had two children. Their son Robert sided with his mother in the family's unhappy differences. The other child, a daughter Jenny, mostly sided with her father. Robert is the sole beneficiary of Laura's estate. After lengthy probate litigation the experienced New South Wales solicitor, Mr Gordon Salier AM, was ultimately granted administration of Laura's estate, with an informal testamentary document annexed: Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895. Even then, disputes broke out about the construction of the informal testamentary document, which Ball J resolved: Gordon Salier v Robert Angius [2015] NSWSC 853. 4. It is now accepted that Laura's estate and John each hold a half interest in the property. Trustees for the sale of the property had been appointed in November 2011 before Laura's death. But in 2014 John challenged their continuation in that role, seeking in these proceedings (No 2012/396544 - and referred to in these reasons as "the 2012 proceedings") that the trustees' appointment be set aside. After a part hearing of the 2012 proceedings in September 2015 before Hallen J, which included disputes about whether or not the proceedings had settled, on 30 September 2015 Hallen J made final orders upon the terms that counsel had told the Court were agreed: Angius v Salier [2015] NSWSC 1446. 5. Shortly afterwards, on 4 November 2015, Hallen J's 30 September orders were further noted in the same terms: in these orders, Hallen J replaced the existing trustees and appointed Mr Salier and Mr Douglas May as the joint trustees for the sale of the property. Hallen J vested the property in them both on the usual trusts for sale and ordered them to sell the property by auction, granting them liberty to apply for ancillary orders. John still occupied the property. 6. But John remained unco-operative with the new trustees. They had to file a motion to require him to transfer the property into their names and then a motion for contempt when he did not. The new trustees could not apply for writs for possession until until they were the registered proprietors. John finally transferred the property into the trustees' names in February 2016. 7. In June 2016 the trustees sought the Court's leave to issue a writ for possession of the property. But in July 2016 John applied by motion for a stay of Hallen J's 30 September orders. The competing motions came on for hearing before Kunc J on 15 November 2016, together with motions in other proceedings between these parties. 8. Kunc J dismissed the stay application and granted leave for the issue of the writ of possession, which was to remain in Court until 27 January 2017, which was then thought to be sufficient time for John to vacate the property: Angius v Salier; Angius v Angius [2016] NSWSC 1622. 9. As Kunc J acknowledged in his 15 November 2016 reasons (at [5] – [6]), the Court was dealing in the 2012 proceedings with only one of three sets of extant intra-family proceedings, with some involving parties other than John, Robert or the estate. There were family provision proceedings brought by Jenny. 10. And John had also brought what became known as the 2016 proceedings, seeking recovery of a large sum against the estate. Kunc J's orders on 15 November 2016 also struck out John's Statement of Claim in the 2016 proceedings but gave him liberty to replead. John had sought his stay of the writ for possession in the 2012 proceedings, in part on the basis that he had a claim against the estate that far exceeded the purchase price of his half share in the property. But the pleading was embarrassing in form and could not be sustained. 11. Kunc J (at [6] – [7]) took the 2016 proceedings and the family provision proceedings under his direct judicial management. As he explained he was, with respect, rightly concerned that without firm judicial control of their litigation these parties would never reach resolution of their disputes and would consume much of the estate with their battles. 12. Returning to the 2012 proceedings, on the application and evidence presented to Kunc J on 15 November 2016, his Honour was not moved to stay the writ for possession. First, his Honour was somewhat sceptical of John's claims that he had permanently been in residence at the property as there was evidence that at some times he had not. Indeed as Ms Culkoff, counsel for Robert points out by reference to Ball J's decision, there are already findings between these parties that Laura and John had separated from as early as 2010: Salier v Angius [2015] NSWSC 853 at [10]. 13. Kunc J also recounted the history set out above: that the Court had made orders with John's agreement to provide vacant possession of the property commencing in 2011, which orders had been repeated in 2015 (accepting Hallen J's findings that the 2015 orders had been made by consent). But Kunc J did consider in John's favour that he had reduced by some $2.476 million the mortgage over the property since Laura's death and that although the deceased owned a holiday home in Burradoo, it was not in good condition and was not readily usable because of the deceased's poor health: at [12] and [13]. 14. But Kunc J was ultimately not satisfied that the prospect of the set off which John was claiming in the 2016 proceedings was sufficiently strong to justify interrupting the proper execution of orders originally made by the Court in 2011, and in an altered form remade in November 2015, because as his Honour said, "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 into account in the administration of the estate": at [14]. On this basis his Honour dismissed John's motion and he ordered the writ to lie in court until 27 January, to allow John sufficient time to organise himself to vacate the property. John's March 2017 Stay Application 1. Represented by Mr D Cook SC, John now applies by motion to stay execution of the writ of possession. Both the trustees and Robert oppose any further stay on the writ of possession. The trustees put argument as the first respondents through Mr C Birtles, a senior associate at Teece Hodgson and Ward. The second respondent, Robert also appeared and put argument by his counsel, Ms V Culkoff. 2. Apart from the stay, John's motion seeks (prayers 2 and 3) to vary pursuant to Conveyancing Act, s 66I the directions in the orders made by Hallen J on 4 November 2015 so as to direct the sale of the property by way of private treaty by the trustees to John at a price to be determined by the Court and on the basis that the net proceeds otherwise due to John by reason of such sale be treated as part payment of the purchase price due by the Plaintiff pursuant to such sale. 3. But the argument on the motion to an extent depended upon events that had occurred between 15 November 2016 and 6 March 2017. There is something of a conflict of evidence about this period although the written communications between the parties are clear. 4. The Sheriff did not execute on the writ immediately after 27 January 2017. It appears probable that because the writ expired during the Court's vacation that the Sheriff's Office elected to set a further 35 days after the expiry of the period of stay before executing to vacate the Denning Street property. The Sheriff's Office issued notice to that effect in January 2017, specifying a vacation date of 7 March 2017. The parties disputed whether and when this Sheriff's notice was served, leading to their different perspectives on the events of January and February 2017 5. John changed solicitors in late November or early December 2016. Having examined the course of events in the last six weeks of last year and heard argument on both sides, in my view the new solicitors for John took up instructions on his behalf efficiently and thoroughly attended to the complex problems of this case with the assistance of Mr Cook SC. I am told from the Bar table, and accept, that the new solicitors were principally involved at the end of last year in re-pleading the Statement of Claim in the 2016 proceedings. That has been sufficiently successful that it appears that that re-pleaded claim is now going to proceed although claiming a far smaller sum ($2.975 million) than the original claim. 6. But John did not organise himself to vacate the property. His explanation for that is that he had not got formal notice to vacate from the Sheriff's Office. He says that the Sheriff's Notice to Vacate was sent to his solicitors by mail on about 21 February 2017 and faxed to him on that date. 7. The trustees and Robert ask the Court to infer that John was aware of the Notice to Vacate from approximately the date it bears, 20 January 2017. 8. But there are two quite different responses to the trustee's contention. In the first place, John's actual receipt of the Notice to Vacate may not matter greatly, in that as Kunc J's period of grace was expiring on 27 January 2017, prudence dictated that John should have been organising himself to get out of the property by approximately that time anyway. 9. But the other response is that, the Sheriff's Process Record of Service, concerning service of the 20 January 2017 Notice to Vacate (Exhibit A), does not clearly indicate that Notice was affixed to the premises on or about 27 January 2017, the first date that the Process Record mentions. Moreover the Process Record indicates that even on 9 February 2017 the Notice was left in the letterbox at the property rather than being affixed to the door or drawn more prominently to the attention of the occupier. 10. In my view the better inference is consistent with Mr Cook SC's solicitor's instructions, that in late January – early February the Notice efforts were being made to ascertain when the Notice to Vacate was issued and that it did not come to John's or his solicitor's attention until about 21 February 2017. 11. But what followed shows in my view an unacceptable sense of entitlement on John's part in the face of the Court's writ of possession. He simply commenced negotiations with the trustees to purchase the property. He had no Plan B in the event those negotiations failed. He took no steps to organise himself to vacate the property. This is an exercise in brinkmanship that sits ill with the picture of a frail and sickly eighty year old who wishes to avoid stress. 12. Despite that, on the advice of his solicitors and counsel, John did correspond reasonably with the trustees between 24 January 2017 and 21 February 2017. And he was faced with a puzzling lack of communication back from the solicitors for the trustees during this period. That makes some of his inaction in some of the last three weeks explicable. 13. The correspondence between 24 January 2017 and 24 February 17 may be shortly summarised. On 24 January 2017 Dettmann Longworth wrote on behalf of John to Teece Hodson & Ward on behalf of the trustees declaring that John "would like to retain the Coogee property" and offering to purchase it for the market value (based on an enclosed valuation) of $4 million, by paying a sum of $1.75 million to the administrator of Laura's estate. The lesser sum of $1.75 million was on account of various repairs that needed to the property and various sale expenses saved by a non-auction. 14. No reply was received to this letter. Dettmann Longworth wrote again on 13 February 2017, asking whether it was accepted or rejected. Teece Hodson & Ward still did not reply by 21 February 2017. So on that day Dettmann Longworth wrote once again, sweetening their offers lightly, offering to purchase the property but with the valuer to be chosen by the estate from a panel of three valuers put forward by John. But otherwise the structure of the sale in this offer is much the same, with John offering to purchase the estate's half share, paying a 10% deposit on exchange, but this time paying the full value of the half share. 15. This last letter finally evoked a response Teece Hodson & Ward on 24 February 2017. Mr Birtles rejected the offers contained in the 13 February 2017 letter and the 21 February 2017 letter and then said "s 66H of the Conveyancing Act 1919 entitles the trustees for sale to consult with the persons interested. Having done so, the trustees for sale decided that proceeding to auction is the most appropriate method of determining the best possible price". The letter then noted that the stay on the writ of possession had passed and sought to open discussions about "orderly arrangements for the handover of possession". 16. The final step in this history is that John has now put on evidence about his capacity to pay the purchase price of the property from his own resources, should the estate accept any of the offers he has made. Consideration of the parties' contentions 1. John seeks a further stay on the writ of possession pending the determination of the relief sought in prayers 2 and 3 of his motion. Those prayers seek orders under the Court's Conveyancing Act, s 66I jurisdiction to vary Hallen J's orders of 4 November 2015 so as to permit or require the sale of the property to John, by way of private treaty at a price to be determined by the Court and on the basis of the net proceeds otherwise due to John by reason of such sale being treated as part payment of the purchase price due by him to the trustees. 2. Parties in s 66G applications not infrequently take advantage of s 66I, although the practical consequences of its operation need to be carefully managed, so that other co-owners are not disadvantaged: Re Dracup [1894] 1 Ch 59 and Penny Nominees Pty Limited v Fountain (No. 3) (1990) 5 BPR 11, 284, at 11, 295. 3. Mr Cook SC wisely disclaims any further reliance upon the arguments that John advanced before Kunc J on 15 November 2016. Any argument now based upon John's capacity to set off monies owing to him in the 2016 proceedings has no prospect of success. Though decided on discretionary grounds as the facts then appeared, Kunc J has in substance already determined this issue against John. 4. Mr Cook SC then deploys two other arguments. He first submits the course of correspondence between 24 January and 24 February 2017 shows unconscionable conduct on the part of the trustees, or that they were acting for an improper purpose to disadvantage John, presumably at the urging of Robert. He cites their lack of consultation with John under the Conveyancing Act, s 66H as evidence of the improper purpose. 5. This first argument is not persuasive. More than this correspondence would be required to impute bad faith or any improper purpose to these experienced trustees for sale. Moreover, the better explanation for what has happened is that given by Mr Birtles: he did not think that the trustees needed to further consult with John about the offer of 24 January 2017 because both he and they understood exactly what John wanted from the terms of his written offer; all the trustees needed to do was to consult with Robert and get back to John with a response. In my view, this is a perfectly logical interpretation of the letters received and is wholly consistent with the trustees exercising their powers in good faith and for proper purposes. 6. Mr Cook SC deploys his second argument based on Conveyancing Act, s 66H. He submits that the trustees had misstated their s 66H obligations in their letter of 24 February, claiming that the section "entitles" them to "consult with the persons interested". I agree with Mr Cook SC's contention that this is a misstatement of their statutory duty. 7. But this misstatement has no consequences. The circumstances here did not require a further act of consultation by the trustees. In any context the essence of consultation is the communication (of the person obliged to consult) of a genuine invitation to give advice (from the person required to be consulted) and a genuine receipt of that advice (by the first person): R v Secretary of State for Social Services; Ex Parte Association of Metropolitan Authorities [1986] 1 WLR 1, at 4G. 8. The Conveyancing Act, S 66H duty to consult is context-specific. It is difficult to see what the trustees would be obliged to consult with John about in relation to the offers he had made. He can be presumed from their contents to have intended them to convey exactly what they said, and unless and until they were withdrawn they continued to the ground the reasonable view that they expressed his intent. It is difficult to see what other advice John could have given the trustees, had he been invited to do so. It could hardly have meant that the trustees should be required to ask him if he had any other variations on the offers he had already put. Whilst it is true as Mr Cook SC points out that the duty to consult will be enforced by injunction (Dixon v Rory (1991) 5 BPR 11, 655) and that is it is no excuse to consult that a trustee believes that a party is not inclined to cooperate in a sale (George v McDonald (1992) 5 BPR 11,659), the particular correspondence John had sent in this case did not create an occasion for further consultation. 9. But what is now to be done? Whilst Mr Birtles understood that John's correspondence did not require a response, I am also of the view that the lack of a response led to a misunderstanding on the part of John and his lawyers. They perhaps not unreasonably thought that their offers were gaining some traction and might soon perhaps result in engagement by the trustees. This inference is strengthened a little by their improving of their offers in the face of silence from the other side. But their lack of any Plan B is still troubling. 10. Subject to certain observations about the management of this case that are made below, in my view a last opportunity should be afforded to John to exercise his s 66I rights whilst he remains in the property. The immediate inconvenience in removing him before he exercises those rights is obvious. The estate has been delayed for too long in realising the property. But another 2 months is not material in 6 years' delay. The discretionary balance of convenience in this situation dictates that he should be put on a strict timetable to exercise those rights for a limited period during which he can remain on the property. 11. But what happened here must not be allowed to happen again. I have decided to follow the model used by Kunc J in the 2016 proceedings and the Family Provision proceedings and take control of this aspect of this matter. The Conveyancing Act, s 66I application will be listed before me at a date agreed between the parties. The objective declared by Kunc J that the property should quickly be realised in some way for the benefit of the estate is even more important now than it was in November last year. I expect a period of no more than 2 months will be required to complete a hearing of the proposed s 66I application. In the meantime John is on clear notice that he must have a Plan B in place if he is unsuccessful on that application. This Court will ask for evidence of that plan before listing the s 66I matter for hearing. Conclusions and Orders 1. Accordingly, for the reasons given, provided the plaintiff gives his counsel the necessary instruction to give each of the undertakings set out below, the Court will make the following orders and directions on the plaintiff's motion: 1. Note the plaintiff by his counsel gives the following undertakings: 1. the usual undertaking as to damages which undertaking will be secured over the plaintiff's interest in the property at 2 Denning Street Coogee; and 2. a further undertaking to do all thing necessary on the plaintiff's part to bring prayers for relief (2) and (3) of his motion of 6 March 2017 to hearing (the Final Relief); 1. And upon the undertakings provided for in (1), stay the writ of possession issued on 30 December 2016 until 30 April 2017 or until the determination of the Final Relief, whichever is the later; 2. Order the parties, promptly after reading these reasons, to submit to the Court agreed directions to facilitate the determination of the Final Relief as soon as conveniently possible. 3. Adjourn the hearing of the balance of this motion, namely the Final Issues, for mention before me on Thursday 6 April 2017 for further directions with a view to fixing a hearing date shortly thereafter, once the Court has received evidence from the plaintiff of his plans to vacate the property if he is unsuccessful on the Final Issues. 4. Costs are reserved: and 5. Grant liberty to apply in relation to the implementation of these orders. 1. The parties then consulted about further agreed directions and the following additional directions were made: (7) The plaintiff is to serve all further lay and expert evidence upon which he proposes to rely on his s 66I application by 21 March 2017. (8) The defendants are to serve any reply lay and expert evidence by 5 April 2017. (9) The plaintiff is to allow any valuer appointed by any of the parties' access to the Coogee property on reasonable written notice given through the plaintiff's solicitor. (10) The matter is listed for further directions on 6 April 2017 before Slattery J with a view of fixing a hearing date. ********** Amendments 07 March 2017 - [17] last sentence, typographical error 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: 07 March 2017