Harvey v Barton (No. 4)

1. [1]

   Two motions are before the Court in these proceedings. First, the trustees the Court appointed for the sale of a property in Woolooware, a southern Sydney suburb, seek payment of their professional costs and disbursements for the sale of the property from the sale proceeds. Secondly, the plaintiff seeks orders that the defendant’s share of the sale proceeds bear certain of the costs associated with the sale.

Background

1. [2]

   This is my fourth judgment in these proceedings; the earlier judgments being Harvey v Barton [2014] NSWSC 1422; Harvey v Barton (No. 2) [2014] NSWSC 1478; and Harvey v Barton (No. 3) [2014] NSWSC 1724. It is the Court’s sixth judgment in the proceedings, Robb J having given judgment in both Harvey v Barton [2013] NSWSC 1779; and Harvey v Barton [2014] NSWSC 303.

2. [3]

   On 6 December 2013, Robb J made declarations and orders in the proceedings after a hearing in July, August and October 2013: Harvey v Barton [2013] NSWSC 1779. In that judgment Robb J declared that the defendant, Ms Barton, held her interest in the subject land at Woolooware (“the Property”) on resulting trust for the plaintiff, Ms Harvey. His Honour also appointed trustees for sale of the Property (“the Trustees”), Mr Barnden and Mr Geoff Reidy of Rodgers Reidy Chartered Accountants. The Court vested the Property in the Trustees and made consequential orders to effect the sale, including orders for the Trustees to charge their usual professional fees for this work. His Honour also declared that the amount of any loans secured by any mortgage or charge over the title to the Property should be discharged out of the 65 per cent remaining interest in the Property held beneficially by Ms Barton.

3. [4]

   His Honour’s orders did not entirely dispose of the matter. A conversion claim remained outstanding. His Honour ultimately resolved this on 21 March 2014. His Honour ordered that Ms Harvey’s motion against Ms Barton be dismissed: Harvey v Barton [2014] NSWSC 303.

4. [5]

   The matter then came before me in the Equity Duty List in October 2014. On that occasion the Trustees had a motion returnable before the Court for Ms Barton to vacate the Property, for an order for possession, and for the issue of a writ of possession against Ms Barton. The Trustees also sought orders for increases in their fees above their ordinary fees, occasioned by unexpected delays associated with the sale of the Property. The Court did not make the orders sought that day, because Ms Barton was not in attendance, she having sent a medical certificate to my Associate. The proceedings were adjourned to 27 October 2014: Harvey v Barton [2014] NSWSC 1422.

5. [6]

   The matter came back before the Court on 27 October 2014. Ms Barton appeared on that occasion. She sought to pursue her motion to remove the Trustees and to deny them any remuneration as trustees for sale. The result of a contested hearing in the Equity Duty List that day was that the Court granted judgment for possession to the Trustees and allowed a writ for possession to issue, but temporarily stayed those orders. The Court also made extensive orders for Ms Barton to provide information to the Trustees and to grant reasonable access to the Trustees to enable the sale of the Property to take place.

6. [7]

   The Court made these orders for Ms Barton to vacate the Property, to allow the orderly marketing of the Property at particular times and to allow the Trustees to undertake repair work on the property. The extensive orders made on 27 October were necessary because of a difficult contest that had already emerged between Ms Barton and the Trustees as to whether this sale would proceed.

7. [8]

   Whether because of discontent at the outcome of the proceedings before Robb J or because of a continuing dispute between Ms Barton and Ms Harvey, Ms Barton’s mother, Ms Barton has presented throughout the proceedings before me as a person who has been prepared to take, and has taken steps to obstruct the orderly sale of the property. She has done what she undoubtedly believes is necessary to reserve her interests. But viewed objectively she has significantly increased the costs of the sale of the Property for no apparently good reason.

8. [9]

   The Trustees were tasked with the sale of an ordinary suburban property in what could be described as a strong property market. Their task should have been completed without any court hearings. But their work has resulted in appearances before this Court on 7 November 2014, 21 November 2014, 28 November 2014, 7 April 2015, 12 May 2015, 10 June 2015 and today, 17 June 2015. To understand the present issues a short procedural history of this matter before the Court is necessary.

Recent Procedural History – November 2014 to June 2015

1. [10]

   On 7 November 2014, the Trustees were required to serve on Ms Barton a report as to what works they had been able to undertake on the Property to enable it to be marketed. The Court also noted the parties’ agreement that day as to a schedule of works to be completed on the Property. The parties’ appearance on 21 November 2014 was unremarkable. But on 28 November 2014 Ms Barton was directed to provide a written list to the Trustees clearly identifying any trades works that she alleged had been carried out incompletely or in a less than workmanlike manner, such as might have risked the Property achieving less than its full market value on sale. On that day, the Court also ordered that from 27 March 2015 the stay for the writ of possession would be lifted; it being anticipated that the planned marketing programme would allow the sale to take place in early 2015.

2. [11]

   The matter was then adjourned to three occasions before the Court this year prior to today: 7 April, 12 May and 10 June 2015. Although Ms Barton appeared last year in these proceedings, despite being given adequate notice, she has not appeared on any of those dates this year.

3. [12]

   On 7 April 2015, the Court ordered the Trustees to file affidavit evidence in respect of the professional charges and disbursements that they proposed to deduct from the proceeds of sale. The Court directed the Trustees to serve that material at the email address for service which Ms Barton had provided in the proceedings.

4. [13]

   On 12 May 2015, the Court made detailed orders about the packing, removal and auditing of Ms Barton’s goods. By that date the Trustees had exchanged contracts for the sale of the Property and wished to complete the sale. But they could not do so without Ms Barton’s cooperation in removing her possessions, which were still at the Property. On 12 May the Court ordered the Trustees to engage solicitors to prepare an inventory of the furniture and other goods at the Property, to photograph them at the premises and then to serve those photographs on Ms Barton in order to give Ms Barton an opportunity to pack and remove her goods. If Ms Barton did not take that opportunity, the Trustees were authorised to appoint a solicitor, Mr Mathew Jessup, to oversee the packing and removal of Ms Barton’s furniture, and its transfer into storage.

5. [14]

   Those orders also noted that Ms Barton would be given notice of the location of the storage facility together with a notice that the goods would be disposed of by public auction should she not collect them within three months of the date that she had been notified the goods were being stored. Ms Barton was notified of the whereabouts of the goods at Kennards Storage in Caringbah and that the three month period had commenced to run.

6. [15]

   The matter came before me again on 10 June 2015. The Court was then informed that Ms Barton’s goods had been removed and the sale of the Property was ready for completion. The Court made orders to bring this matter to finality. The Trustees had leave to file motions returnable for today and the time for service of those motions was abridged. I directed that the motions be served on Ms Barton’s address for service by 5pm last Friday 12 June 2015. This was done. If Ms Barton wished to raise any further issues about the conduct of the Trustees, she could have done so before today.

7. [16]

   The Court has received affidavits of service of the plaintiff Ms Harvey’s motion and an affidavit in the Trustees’ motion. Those affidavits satisfy the Court that Ms Barton was served with notice of these proceedings by the afternoon of 12 June 2015 in accordance with the Court’s orders. Neither the Court nor the other parties have had any communications from Ms Barton since then.

8. [17]

   The matter was called outside court today. Ms Barton did not appear. But an email was received from her in the course of the Court giving this judgment. This resulted in the Court considering the contents of Ms Barton’s email, mid-judgment, about 11.50am. The Court adjourned for morning tea at half past 11. My Associate informed me at that stage she had received an email from Ms Barton (Exhibit D). This email was as follows:

9. [18]

   Both Mr Lipp for the Trustees and Ms Critchley for Ms Harvey submit the Court should proceed now despite this email. I agree with those submissions. Ms Barton has been given adequate notice of these proceedings. She must take responsibility for keeping the email address for service that she has provided in proper working order. I am satisfied that the Court's orders were complied with on Friday by service of materials to Ms Barton's email address in the proceedings, [Ms Barton’s email address].

10. [19]

    The Court is content to proceed with this matter for a number of reasons. Firstly, Ms Barton’s email address has been used as the address for service of orders under the Court's orders on 27 October 2015 (order 15), on 7 November 2014 (orders 3 and 15) and on 12 May 2015 (orders 3 and 8). It is quite apparent from the correspondence the parties and the Court has received from Ms Barton since the making of these orders, that this email address has worked satisfactorily. But it is also evident that Ms Barton has been well aware of these proceedings were listed today as the recent history will demonstrate.

11. [20]

    On 9 June at 1.40am, Ms Barton sent the following email to all the parties and to my Associate:

12. [21]

    Mr Downey then sent an email of 9 June 2015 to my Associate and the other parties at 3.15pm on 9 June:

13. [22]

    My Associate then sent an email to all the parties and the Trustee at 3.54pm on 9 June:

14. [23]

    On the following day, 10 June, Mr Downey and Ms Critchley appeared and the Court made the following orders:

15. [24]

    I am satisfied that these orders have been complied with. I am satisfied that if Ms Barton really wished to seek an adjournment on proper grounds, she had sufficient notice to do so. The warning from my Associate together with the service of documents from the other parties is quite sufficient to alert her to the fact the matter would proceed in her absence today. Her email communication this morning is insufficient for the proceedings to be adjourned.

The Trustees’ Motion

1. [25]

   There are two motions before the Court today, the trustees’ motion and Ms Harvey’s motion. The Trustee’s motion seeks the following relief:

2. [26]

   It is not possible to provide in this short judgment a full account of the history of the difficulties of the Trustees in selling the Property. But on the material read in the proceedings, the Trustees have executed their task in a thorough and professional manner despite an immense quantity of correspondence and other communications from Ms Barton about the quality of their work. The Trustees have been as economical in their task as possible, given the difficulties that Ms Barton placed in their path which slowed the sale of the Property. Their preparation of the Property for sale, their marketing of it and their overall work has meant that the Property, which was auctioned with a reserve price of $1.1 million, was sold for $1.4 million. The Trustee’s work resulted in increased sale proceeds, which will be shared by both Ms Harvey and Ms Barton.

3. [27]

   The Trustees’ claims divide into a number of general categories: the Trustees’ own professional costs and disbursements, the Trustees’ solicitors’ costs and the Trustees’ expenditure on repairs and minor improvements.

4. [28]

   The Trustees’ have given evidence as to their costs and disbursements through Mr Barnden, who had principal charge of the matter for the Trustees, and through Mr Downey, the solicitor engaged on behalf of the Trustees. That evidence has helpfully set out what would be the normal costs of the Trustees and the normal costs of the solicitor for the Trustees in executing a task such as this in uncontroversial circumstances, compared with the actual costs that were incurred in this case.

5. [29]

   In summary, the Trustees say, and I accept, that their own ordinary costs associated with the sale of a suburban property such as this by them as trustees for sale would have been $22,388.25. Their evidence is that their actual costs have been much higher than that. They have given detailed evidence showing that their total costs have, in fact, been $70,345.69, excluding certain tradesmen’s outgoings (considered later in these reasons), but including actual costs to date, actual disbursements to date and a small sum of anticipated costs and disbursements to cover today’s hearing and matters consequent on today’s hearing.

6. [30]

   Ms Barton has not appeared today to answer any of the material filed against her about the Trustees’ professional costs and disbursements. She had adequate notice of the hearing today. In addition, she has had ample notice of the existence of these proceedings and of her right to appear. The Court has on many occasions extended to her the invitation to put on such evidence by motion and affidavit as she might wish, to challenge the contentions of the Trustees.

7. [31]

   I regard the Trustee’s professional costs and disbursements as reasonable. The Trustees are entitled under either Trustee Act 1925, ss 59 or 93, and also by general principle, to an indemnity out of the trust estate for their costs: see Octavo Investments Pty Limited v Knight (1979) 144 CLR 360, at 371. I see no basis in the Trustees’ conduct, which would justify the Court not ordering that the Trustees be indemnified for whole of their costs out of the proceeds of the Property’s sale, and I will so order. I do so noting that the actual costs are $50,000 more than the ordinary costs the Trustees would have incurred on such a sale. But the Court is not at all surprised that the costs have escalated far above ordinary costs, given Ms Barton’s conduct. The mere fact the costs are above ordinary costs is not a reason to deny the Trustees a full indemnity, considering all the circumstances.

8. [32]

   The Court now turns to the Trustees’ solicitor’s costs, the costs of Mr Downey. Mr Downey’s firm, Downeys Lawyers Pty Limited, has been the solicitors on the record since the Trustees were appointed. Mr Downey also said that his costs have increased because of Ms Barton’s opposition to the Trustees’ sale of the Property. I accept Mr Downey’s evidence that this has occurred. That the costs of the Trustees’ solicitors should have increased is equally unsurprising. This is not just because of the increased appearances that Mr Downey has had to make as earlier detailed. But the Court has made extensive orders to contain the fractious relationship between Ms Barton and the Trustees, which orders Mr Downey has executed on behalf of the Trustees. This alone would have considerably increased the Trustees’ legal costs.

9. [33]

   I accept that the conveyancing costs for the sale of a property by trustees for sale in these circumstances will usually be higher than those associated with an ordinary private sale. I accept Mr Downey’s evidence, that the slightly elevated ordinary costs of sale involving trustees for sale would in these circumstances be $7,763.42. Instead, the actual solicitor’s costs the Trustees have incurred are much higher. They are $57,275.72, including Mr Downey’s professional costs and disbursements associated with attendances at court in these proceedings.

10. [34]

    I accept Mr Downey’s evidence that the higher costs incurred in this case were not at all surprising. For a start, Mr Downey has had to attend Court on every one of the occasions the Court has identified above, together with some occasions in September last year before the matter came to me.

11. [35]

    The essential reason for this increase in costs is Ms Barton’s conflict with the Trustees. Ms Barton has made a variety of accusations against the Trustees. She alleged they: incurred unnecessary fees, did not market the Property correctly, withheld information from her, did not take proper care of her goods, and appointed the wrong real estate agents. This is not the limit of her allegations. Ms Barton has criticised almost every aspect of the Trustee’s conduct of the sale, without now advancing evidence to support her allegations.

12. [36]

    Of the $57,275.72 Mr Downey claimed in legal costs and disbursements on the sale of the Property for the Trustees, the table below shows the extent to which those costs exceeded ordinary conveyancing costs. It also shows how these costs are to be borne by Ms Harvey and Ms Barton, as will be explained later in these reasons.

13. [37]

    How are Mr Downey’s costs to be assessed? I have reviewed the materials provided by Mr Downey. The Trustees seek an order that Mr Downey’s costs be paid out of the trust estate on an indemnity basis in an amount that the Trustees ask in their motion (prayer 6) for the Court to assess under Civil Procedure Act, s 94(4) by way of a gross sum costs order instead of assessed costs. In my view, this is an appropriate case for that to be done.

14. [38]

    Civil Procedure Act, s 98(4) provides as follows:

15. [39]

    The Court may make such an order at “any time before costs are referred for assessment”. I will order that the Trustees’ costs, including their legal costs, be paid out of the trust estate on the indemnity basis. The costs order I will make today has not yet been referred for assessment. So the Court has power now to exercise its discretion under s 98(4) to make an order for costs of a specified gross sum. And Ms Barton has had notice that this application would be made today on the materials that have been served upon her.

16. [40]

    Specified gross sum costs orders, or as I will call them in these reasons “lump sum costs orders” are a well-established feature of the Court’s costs jurisdiction. A lump sum costs order under s 98(4)(c) can be fixed broadly having regard to all of the information available to the Court: C2C Investments Pty Limited v Commonwealth Bank of Australia (No 4) [2013] NSWSC 761. What is required is the Court take a “logical, fair and reasonable” approach to the assessment of the costs, and the Court should only exercise the discretion when the Court considers it can do so “fairly between the parties and this includes sufficient confidence at arriving at the sum on the materials available”: per Giles JA in Harrison v Schipp [2002] NSWCA 213 at [22].

17. [41]

    There are two lump sum costs order questions for consideration. One is, whether this is an appropriate case for ordering a lump sum costs order instead of assessed costs? And secondly, what is the appropriate amount of lump sum costs to be ordered in this case?

18. [42]

    This is an appropriate case for ordering lump sum costs. It is highly desirable, given the acrimonious nature of these proceedings, for this final part of the proceedings to be brought to a conclusion as rapidly as possible.

19. [43]

    The costs orders against Ms Barton that Robb J made in December 2013 were the subject of a later costs assessment but were not paid. As a result, the Legal Aid Commission was required to place a writ of attachment for those costs on the title to the Property. The writ was only satisfied when the Property was sold.

20. [44]

    The course of these proceedings to date gives the Court reason to believe that any further costs assessment is likely to be unnecessarily and unreasonably protracted and difficult. It is important that the Trustees, Ms Harvey and Ms Barton be able to conclude their involvement in these proceedings without any of them incurring further unnecessary costs. It seems to me this is an appropriate case therefore for the making of a lump sum costs order. The immediate history of this application is that Ms Barton has not appeared this year to provide any evidence to support her serious allegations of misconduct against the Trustees, despite raising many difficulties about the Trustees’ conduct. It is on the cards that if this matter now went to a costs assessment, a similar pattern of events is likely to occur.

21. [45]

    The next question is what is an appropriate lump sum costs order? The context here that the Trustees should be indemnified under the Trustee Act and at general law for their costs if the Trustees have incurred the sum of costs claimed by Mr Downey, a sum of $57,275.72. I do not see why they should not be fully indemnified for those costs provided incurring of the costs is established as proper and reasonable. If I do not make an order for them to be indemnified, then the Trustees would have to bear the shortfall between their actual costs and their indemnity for those costs out of their own pocket.

22. [46]

    I approach the matter this way. It is appropriate that the Trustees be indemnified by having all of their legal costs paid. Having reviewed the whole of Mr Downey’s memoranda of costs, I am satisfied that they are all reasonably and properly incurred and should be recoverable on an indemnity basis. I will make a gross lump sum costs order in that amount.

23. [47]

    But I am also prepared to assess the quantum of those costs now under Civil Procedure Act, s 94(4). Mr Downey has explained in detailed evidence all the expenditure incurred in professional legal costs and disbursements. This has allowed the Court to make a judgment about the amounts concerned, and the purposes for which they were incurred. In view of how this case was conducted, the costs claimed do not appear unreasonable. In my view they should be approved in the form of a lump sum costs order.

24. [48]

    In lump sum costs order cases it is common for the Court to discount the lump sum being ordered to a degree from what is claimed. But that is not appropriate in this case. First, the order is being made on an indemnity basis. Secondly, having looked through the materials I regard this as a case where the lump sum costs order should reflect the full fees charged on ordinary principles in any event: all the fees were incurred and were necessary.

25. [49]

    That deals with the professional costs and disbursements of the Trustees and their solicitors.

26. [50]

    Much of the Trustees’ work in repairs and improvements to prepare the Property for sale would have had to be done despite the many differences between Ms Barton and the Trustees. The Property needed to be prepared for sale with repairs and minor improvements, by painting and decorating, and by the work of plumbers, locksmiths, landscapers and other repairers to make the Property as presentable as possible. Ms Barton was critical of some of this expenditure. Ms Barton has real estate expertise. She said the Property would be best sold to a developer so that this expenditure would be avoided.

27. [51]

    But the Trustees’ expenditure on all these items was entirely reasonable. The Trustees were ensuring the Property was marketable to the broadest number of potential purchasers, not just to developers, but also to general residential buyers. The table set out below, supplied by the Trustees and Ms Harvey, summarises all this third party expenditure. It also indicates the Court’s view as to how the cost of reimbursing the Trustees for the third party expenditure should ultimately be borne between Ms Harvey and Ms Barton, an issue relevant to Ms Harvey’s motion, considered later in these reasons.

28. [52]

    There are three main matters to be dealt with on Ms Harvey’s motion. The first is the allocation of the burden of costs between Ms Harvey and Ms Barton including with respect to the costs which the Trustees have incurred to tradesmen. The second is the costs associated with removal of Ms Barton’s goods from the property and their storage and insurance at Kennards Storage at Caringbah. The third is how the Court should deal with the proceeds of sale in the event of further disagreement. All of these three matters are to a degree associated with Ms Harvey’s motion in the proceedings.

29. [53]

    Ms Harvey’s motion seeks the following orders:

30. [54]

    Some of the orders sought in the Trustees’ motion have already been the subject of action. The sale of the Property settled on Monday and that payments were made on settlement. These were as follows:

31. [55]

    The orders of Robb J envisaged that the amount secured by mortgage over the property to Westpac Banking Corporation ($461,726.05) would be paid out of Ms Barton’s 65 per cent share of the interest in the Property. It is evident from the above figures that Westpac has been paid at settlement. It is equally evident from the above figures that the costs orders Robb J made and, which have been assessed at $92,606.71, have been satisfied on settlement of the property. Robb J expressly decided that the mortgage amount should be discharged out of Ms Barton’s share. In the final accounting that is what must occur. As to Ms Harvey’s costs in the proceedings, I see no reason why they too should not be dealt with consistently with the effect of Robb J’s orders. Ms Harvey’s legal costs, deducted at settlement, will therefore be borne by Ms Barton’s 65 per cent of the net proceeds of sale of the Property.

32. [56]

    The first issue for analysis is the first order which Ms Harvey seeks in her motion: that the costs incurred by the Trustees, including their legal costs, be deducted from Ms Barton’s share of the proceeds of sale of the Property.

33. [57]

    The logical approach to this question is that the parties should bear the ordinary cost of the sale of the Property in the ratio of their sharing in the proceeds of sale. If the sale process had not been lengthened by Ms Barton’s conduct, then these ordinary sale costs would still have been incurred. These costs are respectively for the Trustees, $22,338.25 and for Mr Downey, $7,763. In my view 35 per cent of those ordinary costs should be borne by Ms Harvey, and the remaining 65 per cent by Ms Barton. But the costs over and above those sums are Mr Barnden’s and Mr Downey’s professional costs and disbursements caused by Ms Barton’s conduct in obstructing the Property’s sale. These should be borne by Ms Barton. I see reasonable no basis for costs that have been wholly occasioned by Ms Barton’s conduct being borne in any degree out of Ms Harvey’s share of the sale proceeds. The Court will order that the difference between the total costs and what I call the ordinary costs of both Mr Barnden and Mr Downey be borne out of Ms Barton’s share of the net proceeds of sale.

34. [58]

    That does not deal with all the outgoings. The Trustees have also incurred a figure of approximately $49,453.27 in the payment of various tradespeople who performed work to prepare the Property for sale, in addition to their normal disbursements. These various tradespeople’s figures have been detailed in paragraphs 18, 22, 23, and 37 of Mr Barnden’s affidavit of 12 June. And they are set out in the table at paragraph [52] of these reasons. It seems to me that these expenses should also be borne in the ratio of 35 to 65 between Ms Harvey and Ms Barton. They are expenses that would have had to have been incurred for the sale of the property in any event, namely, the interior painting, timber, carpentry works, plumbing works, carpeting, general packing, preparation for locksmiths and landscaping.

35. [59]

    Ms Barton did not supply the Trustees with details of any current insurance policies, it is not clear there was a current insurance policy. It seems to me to be a precaution in the interests of all the parties that this outgoing should also be borne in the ratio of 35 to 65.

36. [60]

    The remaining expenditure concerns the removal of Ms Barton’s goods to the facility at Kennards Storage at Caringbah. The removal and the inspection and inventory taking, the supervision of the removal process by the solicitor Mr Jessup, should all be to Ms Barton’s account, and I will so order. These are all items specifically related to the removal of her goods. The evidence shows she did not cooperate at all in their removal. Therefore all this additional expenditure became necessary. These items of expenditure appear above in the table of the Trustees’ costs in paragraph [52] of this judgment.

37. [61]

    Other matters remain in relation to the storage and disposal of Ms Barton’s goods, after their removal from the Property. The Court’s orders on 12 May indicate they can be stored for a further three months. The Court ordered on 12 May in relation to Ms Barton’s goods as follows:

38. [62]

    It is incidental to the Trustees’ power of sale of the Property to dispose of these goods, which had to be removed from the property in order for it to be sold. I will therefore direct the Trustees to sell these goods subject to the order of 12 May 2015 by public auction unless they are collected within three months from the date of service of the orders of 12 May.

39. [63]

    The Trustees now seek recourse to the funds resulting from the sale of Ms Barton’s property to recover their costs of storage of that property for three months in the amount of $1,036 per month. That order should be made. The Trustees also seek recourse for an amount of $850 in respect of their costs of insuring Ms Barton’s property. That order also should be made. Those costs will be incurred only because of Ms Barton’s failure to cooperate in removing her goods from the Property, and should therefore be to her account.

40. [64]

    Further costs can be anticipated in the sale of Ms Barton’s goods. The Court has authorised the Trustees to sell those goods, if they are not claimed. Ms Barton’s costs of storing and insuring them have now been covered. But there may yet be further correspondence with Ms Barton about disposal of these goods. And there may be unexpected costs associated with their sale. I will authorise a sufficient sum to be set aside from the proceeds of sale to cover the auction of these goods or to cover reasonable costs associated with the collection of the goods from the storage facility. I authorise the Trustees to meet their reasonable costs out of a sum of $10,000 that will be set aside in respect of the final disposal of these goods. This sum should come from Ms Barton’s share, as these expenses all relate to the disposal of her goods.

41. [65]

    That then leaves the question of distributing the proceeds of sale. There will probably be no difficulty with Ms Harvey co-operating in receiving her share of the proceeds of sale. Her solicitor, Ms Critchley has attended most of these directions hearings. No doubt Ms Harvey will cooperate with the Trustees for the transmission of her share of the proceeds of sale.

42. [66]

    But it is not yet clear whether Ms Barton will accept what the Trustees calculate is her share of the proceeds of sale. There should be a completely open exchange of information about the Trustees’ final payment. Ms Barton and Ms Harvey should both see the Trustees’ final accounting. When the Trustees have completed their duties I direct them to provide an accounting to both parties and to the Court of how the Trustees calculate the final net balance payable to Ms Harvey and Ms Barton. I do not expect the Trustees to provide any more of the underlying evidence to justify this accounting than has already been explained in the affidavits filed in these proceedings. But there are still a fairly significant number of unknown figures that have still to be ascertained after this judgment has been given. It is desirable Ms Barton and Ms Harvey have the calculation explaining the final figure reached for each of them. The direction will only require that they be shown how the final figure was calculated after this judgment.

43. [67]

    If Ms Barton fails to cooperate with the Trustees concerning the net proceeds of sale, the Trustees can, if they are so minded, take advantage of Trustee Act, s 95(1) to pay the money into Court. Trustee Act, s 95(1) provides as follows:

44. [68]

    To avoid the Trustees being locked in future conflict with Ms Barton the appropriate course then seems to be the following. When the Trustees calculate the final figure, I direct them to write to Ms Barton offering to pay her the sum which the Trustees calculate is due to her and to ask Ms Barton whether she wishes to accept that sum within fourteen days. If there is no clear answer to that correspondence within that time, I will direct the Trustees to pay Ms Barton’s sum into court and to inform Ms Barton that they have done so. She can then apply for payment out to her.

Conclusion and Orders

1. [69]

   Accordingly for these reasons, the Court makes the following orders and directions:

2. [70]

   The sale of (the Property) by Andrew James Barnden and Geoffrey Philip Reidy (Trustees) resulted in gross sale proceeds of $1,400,000 (Sale Proceeds).

3. [71]

   Pursuant to the orders of Robb J made in these proceedings on 6 December 2013 that the respective interests of the parties in the Sale Proceeds is:

4. [72]

   35% as to the plaintiff (Plaintiff’s Share); and

5. [73]

   65% as to the defendant (Defendant’s Share).

6. [74]

   Noting that the defendant (a) is liable for the payment of the loan secured by mortgage to Westpac over the title of the Property (see Robb J’s orders (1) of 6 December 2013), and (b) liable for the payment of the costs owing to the Legal Aid Commission of NSW (the Commission) in the sum of $92,606.71, which were deducted at settlement of the sale of the Property pursuant to the Commission’s writ of attachment, order that both amounts shall be paid from the Defendant’s Share.