Bremner v French (No 4); Aesthete 101 Pty Ltd v Stone

1. [1]

   This judgment concerns the long-delayed sale of a portfolio of five co-owned properties in rural Victoria. The present dispute has arisen because third parties claim to have acquired the interest of one of the co-owners in three of the properties. I will refer to these third parties as the Purchasers. The Purchasers are not trying to prevent the sale from taking place at all, but they do seek to be registered as co-owners of the three properties in question prior to the sale, and they also seek orders altering previous orders and directions made by the Court about the mechanics of the sale and the distribution of the proceeds.

2. [2]

   The sale is being conducted by Mr Jason Stone, who was, by orders made by the Court on 31 October 2019, appointed as trustee for the sale of the properties pursuant to Part IV of the Property Law Act 1958 (Vic). Although a question has been raised in these proceedings as to whether Mr Stone is, strictly speaking, a trustee, I will refer to him as the “Sale Trustee” for convenience.

3. [3]

   There are actually two separate proceedings before the Court. The first was commenced in 2014. The order appointing Mr Stone as trustee for sale was made in the second cross-claim in those proceedings, and it is only that second cross-claim with which the Court is now concerned. The other proceedings were commenced this year by the Purchasers. As I will describe in more detail, relief was eventually sought in both proceedings and the two matters were heard together. I will refer to the two proceedings as the “2014 proceedings” and the “2024 proceedings” respectively.

4. [4]

   The hearing took place on 6 June and continued on 20 June. On that date, I announced my conclusions and the orders I proposed to make. In doing so, I delivered a brief oral summary of my reasoning, and indicated that I would deliver formal reasons in due course.

5. [5]

   In the end, I did not formally make orders disposing of the proceedings. I was asked to adjourn the proceedings so that an application could be made for an injunction pending an appeal, I adjourned the proceedings to 28 June to allow any such application to be made. In this judgment, I set out my reasons for the conclusions which I announced on 20 June.

Background and procedural history

1. [6]

   The five properties were purchased, and remain registered, in the names of Christopher Piers Julian Bremner and Andrew Boyd French as tenants in common in equal shares. Dr Bremner was the cross-claimant in the second cross-claim in the 2014 proceedings, and Mr French was the first cross-defendant. Dr Bremner also made a claim against a second cross-defendant but that claim failed and is of no ongoing relevance.

2. [7]

   I have already delivered three judgments in relation to the 2014 proceedings. The first was delivered in August 2019 following a lengthy trial of the first cross-claim and the second cross-claim: French v Bremner [2019] NSWSC 1033 (“J1”). In that judgment, I set out my conclusions on the merits of the parties’ claims and directed the parties to bring in minutes of order reflecting those conclusions.

3. [8]

   There were some issues about the form of the orders. On 31 October, I delivered a supplementary judgment dealing with those issues and making orders disposing of the first cross-claim and (as it then appeared) the second cross-claim: French v Bremner (No 2) [2019] NSWSC 1504 (“J2”). As already noted, those orders included orders in the second cross-claim appointing Mr Stone as trustee for sale of the five properties, with effect from 18 November, and making provision for the conduct of the sale. I will refer to those orders as the “Sale Orders”

4. [9]

   The properties remain unsold. Last year, an application was made by notice of motion in the 2014 proceedings which resulted in the Sale Orders being varied. In December, I published my judgment on that motion: Bremner v French (No 3) [2023] NSWSC 1488 (“J3”).

5. [10]

   In February 2023 (that is, several years after the Sale Orders were originally made, but while the properties remained unsold), Mr French entered into a Personal Insolvency Agreement (“PIA”) under Part X of the Bankruptcy Act 1966 (Cth). The Agreement provided for him to make available his “interests” in three of the five properties to be distributed among participating creditors. Those participating creditors did not, under the terms of the Agreement, include Dr Bremner. I was told that Dr Bremner voted against the Agreement, but it was approved by the requisite majority of Mr French’s creditors and Dr Bremner has (at least as yet) made no application to have it terminated or set aside.

6. [11]

   The trustee nominated under the Agreement was Mr Frank Lo Pilato. I will refer to him as the “PIA Trustee”. Mr Lo Pilato was represented at the hearings which took place on last year’s motion, and in the course of the hearings, I made orders formally joining him as a respondent to the motion and as the third cross-defendant to Dr Bremner’s cross-claim.

7. [12]

   How the parties to the 2014 proceedings became involved in those proceedings is explained at J3 [3]-[6]. The course of the proceedings up to the making of the orders in October 2019, and the associated factual background, is summarised at J3 [7]-[18]. As already noted, I am now concerned solely with the second cross-claim. J3 [19]-[23] summarises the conclusions which I reached on that cross-claim and the reasons for my orders on it. The present judgment assumes familiarity with these passages of my earlier judgment.

8. [13]

   The course of events from the making of the orders on 31 October through to the hearing of last year’s motion are set out at J3 [34]-[88]. There is no need to say anything more about those events for the purposes of this judgment.

9. [14]

   In their original (October 2019) form the Sale Orders provided, broadly, as follows. The Sale Trustee was empowered to sell the properties either at public auction or by private treaty. The sale was to be effected within 12 months of the date on which his appointment became effective (that is, by 18 November 2020). The costs of the sale, and other expenses associated with disposing of the properties, together with the Sale Trustee’s fees, were to be deducted from the proceeds. The balance was to be divided equally between Dr Bremner and Mr French.

10. [15]

    Last year’s motion was brought before the Court by Dr Bremner because the properties remained unsold, and the time specified in the Sale Orders for their sale had long expired. An extension of time was sought for a further year. Although there was some resistance of this from Mr French, I granted an extension for a further year (order 5(a)). I also made orders requiring the parties to execute documents required to complete the sale and to provide vacant possession when required by the Sale Trustee (order (6A)).

11. [16]

    Questions also arose as to the adequacy of the orders providing for deductions for payments of costs and expenses out of the sale proceeds, and the division of the proceeds. Three particular issues emerged.

12. [17]

    The first was that Mr French (who had been in occupation of the properties throughout the 2014 proceedings, and had remained in occupation following the appointment of the Sale Trustee) asserted that he had contributed to the maintenance and upkeep of the properties without any reimbursement or remuneration. In particular, he alleged that he had defended the properties from bushfires during the severe 2019-2020 fire season which followed the appointment of the Sale Trustee. He claimed that some sort of allowance should be made in his favour for expenditure incurred and services provided which should be paid out of the sale proceeds in priority to the division of the proceeds between Dr Bremner and himself.

13. [18]

    The second issue arose out of Mr French’s entry into the PIA. Counsel for the PIA Trustee sought variations to the Sale Orders to provide for the proceeds of the three properties, which were the subject of the PIA, to be distributed directly to the PIA Trustee.

14. [19]

    The third issue concerned the provision in the Sale Orders authorising the Sale Trustee to deduct his fees and disbursements from the sale receipts. Criticisms were made of the way in which the Sale Trustee had gone about the sale process and the level of costs (including legal costs) that he had incurred. It was suggested that, at the very least, further scrutiny should be required before the Trustee’s costs were paid out of the sale receipts.

15. [20]

    In order to accommodate these points, I made a number of variations to the Sale Orders.

16. [21]

    On the first issue, I broadened the scope of the sale and holding costs which were to be deducted from the sale receipts, so as to include reimbursement or remuneration of Mr French for expenses incurred, after the making of the orders, which had preserved or enhanced the value of the properties. This would allow Mr French, if he wished to pursue such a claim, to do so in due course (J3 [118]-[128]).

17. [22]

    On the second issue, I declined to make orders apportioning the proceeds of the three PIA Properties to the PIA Trustee. In part, this was because there might be a question, which had not been fully argued, as to how the Sale Trustee’s fees and disbursements were to be apportioned between the properties. The Sale Trustee was however prepared to keep records of the disbursements and fees incurred in a form which would facilitate a later application by the PIA Trustee for apportionment. I made that order, effectively by consent (J3 [135]-[140]).

18. [23]

    On the third issue, I varied the orders providing for deduction of the Sale Trustee’s fees and the distribution of the residue to Dr Bremner and Mr French in equal shares. As I explained at J3 [129]-[134], I did not make these variations because I intended to cast any doubt on the idea that disbursements and fees properly incurred by the Sale Trustee would be reimbursed to him, but simply to ensure that the question of his fees could be addressed at a later stage, but before the residue was paid out.

19. [24]

    I made the variations in question at different stages of the hearing of the motion. Ultimately, the Sale Orders were left in the following form:

20. [25]

    The Purchasers are three companies, named Aesthete 101 Pty Limited, Aesthete 102 Pty Limited and Aesthete 103 Pty Limited. They came into this matter earlier in the year. The background was as follows.

21. [26]

    The Purchasers are controlled by a solicitor, Mr Farshad Amirbeaggi. He is the principal of a law firm named Yates Beaggi Lawyers (“YBL”).

22. [27]

    One of YBL’s clients was a company named Harris Healthcare Pty Limited (“HHC”). To secure payment of its fees, YBL obtained a charge over HHC’s assets and undertaking. In 2021, YBL appointed Mr Dominic Calabretta as receiver and manager of HHC pursuant to the charge, there being unpaid costs and disbursements owed (or allegedly owed) to YBL by HHC.

23. [28]

    One of the assets of HHC, which was the subject of the charge, was a debt owed to HHC by Mr French in the sum of $450,000. In 2022 Mr Calabretta obtained, on behalf of HHC, a judgment against Mr French for this amount. In November of that year, again on behalf of HHC, Mr Calabretta filed a creditor’s petition seeking to have Mr French made bankrupt.

24. [29]

    Soon afterward, in December 2022, Mr Lo Pilato was appointed as controlling trustee of Mr French’s estate. The PIA was formally executed on 16 February last year, following approval by the requisite majority of the creditors.

25. [30]

    The PIA was in conventional form, providing that Mr French (“the Debtor”) would make available specified property for distribution among his creditors, leaving any other property owned by him free of any claims by them. The property made available was defined as the “Debtor’s Property”, in the following terms:

26. [31]

    Clauses 3.2 and 4.1 relevantly provided:

27. [32]

    On the same date, Mr French executed a power of attorney in favour of the PIA Trustee. The instrument authorised the PIA Trustee to do “all things reasonably necessary in respect of [Mr French’s] interest” in the three properties.

28. [33]

    Over the following twelve months, Mr Calabretta negotiated with the PIA Trustee to buy the Trustee’s interest in the three properties. The negotiations were fractious and apparently resulted in litigation, the details of which are not clear on the evidence. But following a mediation, in late March this year, agreement was reached and a formal contract, styled the “Sale Agreement”, was executed.

29. [34]

    The parties to the Sale Agreement included the PIA Trustee, Mr Calabretta, HHC, Mr Amirbeaggi, YBL and the Purchasers. The Agreement was structured so that the Purchasers were to pay the consideration (the actual amount has been treated as confidential in these proceedings) to the PIA Trustee immediately on execution of the Agreement, but the funds were to be held in escrow until “Completion”. This was defined as “the date upon which [the Purchasers] obtain the Transfer or the Declaration whichever is the earlier”. In the meantime, the parties agreed to do “all things reasonably necessary and or [sic] execute all documentation required to carry into execution the Transfer and or [sic] to assist [the Purchasers] in seeking and obtaining of [sic] the Declaration”.

30. [35]

    For the purposes of the Agreement, the “Transfer” was defined as “the transfer of [Mr French’s] title to [the three properties] to [the Purchasers]”. The “Declaration” was defined as “a Declaration made by [this Court] that [the Purchasers] are the owner[s] of all legal and/or beneficial title and interest in [Mr French’s] interest in [the three properties]”.

31. [36]

    Meanwhile, following my decision in December last year, the Sale Trustee had taken steps to proceed with the sale of the five properties. This included the appointment of agents to handle the sales. Auction dates were fixed for 8 and 9 May.

32. [37]

    A few days after executing the Sale Agreement, on 2 April, Mr Amirbeaggi wrote directly to the Sale Trustee with an offer to acquire the three properties. He began by stating that he had been informed by the agent that the properties were expected to fetch $1.6 million in total. The letter continued:

33. [38]

    Correspondence ensued between Mr Amirbeaggi (apparently acting for Mr Calabretta as Receiver of HHC as well as for the Purchasers), solicitors acting for the PIA Trustee, solicitors acting for the Sale Trustee and solicitors acting for Dr Bremner. The correspondence in evidence (which appears incomplete) shows that the solicitors for the Sale Trustee sought a copy of the Sale Agreement. This was refused by Mr Amirbeaggi, although he provided a summary of the Agreement which stated that the interest acquired by the Purchasers under the Sale Agreement included Mr French’s “right title and interest in” the three properties. Mr Amirbeaggi stated that the Purchasers sought Mr Stone’s consent to be registered on title to the three properties “to perfect” their interest.

34. [39]

    Although continuing to pursue their request for a copy of the Sale Agreement, the solicitors for the Sale Trustee provided a response to the offer. That offer had proceeded on the basis that, as a result of the Sale Agreement, the Purchasers had already acquired a half interest in each of the properties. The solicitors reserved the Sale Trustee’s position on whether this was correct. The solicitors also pointed out that the offer cut across the Sale Orders, which were of course binding on the Sale Trustee. In particular, the Sale Orders obliged the Sale Trustee to sell the whole of the properties, and did not authorise the sale of Dr Bremner’s half share only. The offer also cut across the provisions in the Sale Orders for the proceeds to be deposited in a bank account under the control of the Sale Trustee while any claims by Mr French or Dr Bremner for allowances, and the quantum of the Sale Trustee’s remuneration, were worked out.

35. [40]

    The Sale Trustee’s solicitors nevertheless indicated that he was prepared to consider an alternative to going ahead with the sale of the three properties. But this was conditional on agreement from Dr Bremner and on satisfactory provision being made for the payment of the Sale Trustee’s costs.

36. [41]

    The correspondence with Mr Amirbeaggi continued, but the Sale Trustee’s position remained firm and was reiterated in a letter dated 11 April. There is no further correspondence in evidence from the period before the 2024 proceedings which were commenced by the filing of a summons on 1 May.

37. [42]

    The summons named the Purchasers as plaintiffs. Mr Stone was named as the first defendant, Dr Bremner as the second defendant, and the PIA Trustee as the third defendant.

38. [43]

    I will describe the final orders sought in the summons in more detail later in this judgment. For present purposes, it is enough to say that the summons sought declarations to the effect that Mr French’s “interest” in the three properties had passed to the Purchasers, and orders for the registration of the Purchasers as co-owners of the three properties in Mr French’s place.

39. [44]

    A notice of motion was also filed in the 2024 proceedings for the Purchasers as applicants and naming the three defendants as respondents. The notice of motion began by seeking “leave to intervene” and “leave to re-open” the 2014 proceedings. It went on to seek the variation of the Sale Orders. One variation was to provide for the proceeds of sale of the three properties to be paid directly to the Purchasers. Other orders sought included directions which would permit the Purchasers, if they were to buy the properties from the Sale Trustee, to be relieved of any obligation to pay a deposit, and to be credited for the purposes of the settlement with half of the purchase price.

40. [45]

    Following the filing of the summons in the 2024 proceedings, discussions continued between the parties’ legal representatives. On 6 May, the Purchasers and the PIA Trustee reached agreement on, and signed, a minute of consent order providing for the Court to make the declarations sought in the summons. But no agreement was reached with the Sale Trustee and Dr Bremner.

41. [46]

    In the course of the debate, the auction dates for 8 and 9 May were postponed. The proceedings were brought before me on 31 May. I was asked to deal with them on an expedited basis and I fixed them for hearing on 6 June. The auction dates are currently fixed for 3 and 4 July.

42. [47]

    Mr French was not joined as a party to the 2024 proceedings. The question of his involvement was raised in correspondence but resisted by Mr Amirbeaggi on the basis that he had “no standing” and was “a cantankerous individual”. Following the mention on 31 May, copies of the originating summons and notice of motion were emailed to Mr French, but he was never formally joined or served and he did not participate.

43. [48]

    At the hearing on 6 June, the Purchasers, the Sale Trustee, Dr Bremner and the PIA Trustee were all represented by counsel. Affidavits were read from Mr Amirbeaggi, the Sale Trustee’s solicitors, and Mr Lo Pilato. Strictly speaking, the hearing was a final one insofar as it concerned claims for substantive relief in the summons, but no point was taken about the admissibility of the affidavits for the purposes of a final hearing, nor was any cross-examination sought.

44. [49]

    At the mention on 31 May, I raised a question with counsel for the Purchasers about whether the matter was being advanced in a properly constituted form. I suggested that if, as appeared to have been accepted, it was agreed between the PIA Trustee and the Purchasers that the Purchasers had succeeded to the PIA Trustee’s rights, the appropriate course might be an application to have the Purchasers joined as cross-defendants to Dr Bremner’s cross-claim in the 2014 proceedings, in place of the PIA Trustee. Once joined as parties to that cross-claim, the Purchasers could make their claims for orders and directions against the Sale Trustee and Dr Bremner, and for variation of the Sale Orders, by way of motion in those proceedings.

45. [50]

    At the hearing on 6 June, I repeated the point. Counsel thereupon sought leave to have the Purchasers joined as cross-defendants to Dr Bremner’s cross-claim in the 2014 proceedings, and to file a notice of motion seeking the relief which had been sought by way of notice of motion in the 2024 proceedings (to the extent still pressed). I granted the necessary leave, which was not opposed.

46. [51]

    The PIA Trustee however remained a cross-defendant to Dr Bremner’s cross-claim. The Purchasers were joined as additional (fourth, fifth and sixth) cross-defendants. As I understood it, this was because counsel took the view that the PIA Trustee could not be replaced until the Purchasers had obtained transfer of the title to the three properties.

47. [52]

    In due course, the foreshadowed notice of motion was filed for the Purchasers in the 2014 proceedings. The Sale Trustee, Dr Bremner and the PIA Trustee were named as respondents. Mr French was not joined as a party to the motion. The notice of motion, which had been filed in the 2024 proceedings, was, in effect, superseded.

2024 proceedings

1. [53]

   The declaratory relief sought in the summons consisted of three declarations. The first declaration concerned the purchase by the first of the three properties. The declaration sought was that the first of the Purchasers had become the “owner of right, title, and interest in [Mr French’s] legal and beneficial interest as tenant in common as to one of two equal shares in” the property. The other two declarations concerned the other two properties and were in equivalent form.

2. [54]

   The summons went on to claim the following further orders concerning registration:

3. [55]

   The declaratory relief in [1]-[3] of the summons was not pursued. In written submissions prior to the hearing on 6 June, counsel accepted that an order could not be obtained directly against the Registrar and abandoned [4], as well as other consequential orders. The only issue presented for determination in the proceedings was whether the Court should make the orders sought in [5] requiring the Sale Trustee and Dr Bremner to do all things necessary to assist the Purchasers to be registered as the proprietors of Mr French’s half share of the three properties.

4. [56]

   The first question for consideration is whether the Court has jurisdiction to entertain the proceedings. The question arises because of the potential effect of federal legislation concerning bankruptcy jurisdiction.

5. [57]

   A similar question was considered by Gleeson JA in Re Galtari Pty Ltd [2018] NSWSC 917 and can be dealt with in the present case by reference to that decision.

6. [58]

   His Honour’s analysis establishes the following.

   1. (1)

      Under s 27 of the Bankruptcy Act 1966 (Cth) (“BA”), jurisdiction “in bankruptcy” is exclusively conferred on federal courts: at [26]-[28].

   2. (2)

      Despite s 27, the Court is not deprived of jurisdiction in a matter which arises “in bankruptcy”. Such jurisdiction is conferred by s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). But such a matter is a “special federal matter” for the purposes of cross-vesting legislation and must be transferred to the Federal Court unless there are “special reasons” for the Court determining the matter itself. These “special reasons” do not include the wishes or convenience of the parties: at [37]-[44].

   3. (3)

      For the purposes of BA s 27, jurisdiction “in bankruptcy” is generally taken to include matters involving claims which have the effect of declaring for or against the title of a trustee in bankruptcy: at [57]-[61].

   4. (4)

      On the other hand, a distinction has been recognised between exercising jurisdiction “in bankruptcy” and merely recognising the effect that the BA has for the purpose of State matters: at [51]-[56], [62].

7. [59]

   The question of jurisdiction was raised by the Court. Counsel for the Purchasers submitted, with a brief reference to Galtari, that there was no special federal matter. None of the other counsel demurred. Nevertheless, it is the first duty of the Court to satisfy itself of its jurisdiction, and I have considered the question as best I can in the absence of any contradictor.

8. [60]

   In the present case, there is no dispute that Mr French has, at least in equity, assigned whatever interest he had in the three properties, or in the proceeds of those properties, to the PIA Trustee. Nor is there any dispute that that interest has now been assigned to the Purchasers. The question in the proceedings is what the interest was.

9. [61]

   It seems to me that in these circumstances there can be no question of the Court in these proceedings declaring for or against the title of the PIA Trustee. There is simply no controversy in the proceedings about that matter which the Court is being asked to quell. Indeed, Mr French is not even a party to the proceedings.

10. [62]

    The same conclusion may be supportable by broader reasoning. In the case of a bankruptcy, the vesting of the bankrupt’s property in the trustee is effected by statute, and the distribution of the property among the bankrupts’ creditors is prescribed by statute. A Part X arrangement is different. The arrangement itself involves an assignment by the debtor of property for the benefit of creditors which operates according to ordinary principles of contract law and trust law. Likewise, the distribution of the proceeds, and the payment of the trustee’s costs, is dealt with in the arrangement itself and is not statutory.

11. [63]

    There are of course statutory provisions which apply to Part X arrangements. Among other things, they make a PIA binding on all creditors and bar them from taking enforcement action on provable debts (BA s 229). They also provide for the release of provable debts by the PIA (BA s 230). In Galtari, Gleeson JA held that a defence to an action for damages or compensation for breach of director’s duties which merely recognised the effect of s 230 did involve the exercise of jurisdiction “in bankruptcy”. The present case is arguably one step further removed. It does not relevantly involve the effect of the BA at all.

12. [64]

    For these reasons, I am satisfied that this is not a special federal matter. Therefore, the Court is entitled (and bound) to proceed with making orders disposing of the proceedings.

13. [65]

    The Sale Orders were, as already mentioned, made pursuant to Part IV (ss 221-234I) of the Property Law Act 1958 (Vic) (“PLA”). Those provisions date back to 2005, when they replaced the previous Part IV. Generally speaking, jurisdiction under Part IV, in its post-2005 form, is conferred on the Victorian Civil and Administrative Tribunal (“VCAT”). There are however exceptions which resulted in this Court having jurisdiction (cross-vested from Victoria) in the present case: see J1 [470]-[471].

14. [66]

    PLA s 228 provides generally for the orders which VCAT can make:

15. [67]

    VCAT has express power, in PLA s 231, to make an order for the appointment of trustees for sale. It was under this section that the order appointing the Sale Trustee was made in the present case. The section relevantly provides:

16. [68]

    PLA s 232 conveys power to make various specific types of order. It provides:

17. [69]

    PLA s 233 gives VCAT power to make orders for compensation, accounting or adjustment as between co-owners.

18. [70]

    The 2005 version of Part IV replaced a previous version which had been enacted with the rest of the Act in 1958. Under the former version of the provisions, orders concerning the partition or sale of co-owned land were made by the Supreme Court or the County Court.

19. [71]

    The critical provision, so far as sale was concerned, was PLA s 222 which provided:

20. [72]

    Part IV also made express provision authorising any of the existing parties interested in the property to bid at the sale on such terms as to non-payment of deposit or as to setting off or accounting for the purchase money “as to the Court seem reasonable” (s 225).

21. [73]

    PLA s 227 dealt with the proceeds of the sale. It relevantly provided:

22. [74]

    PLA s 226 provided that s 57 of the Trustee Act 1958 (Vic) (“TA”) should “extend and apply” to cases in which the Court directed a sale under Part IV. The effect was to bring the provisions of the TA, which concerned vesting orders (Part IV, Division 2; ss 51-62), expressly into play.

23. [75]

    TA s 51(2) provided that the Supreme Court might make a vesting order in various cases, including where new or replacement trustees have been appointed under an existing settlement. But the power to make a vesting order was also extended to other cases, including:

24. [76]

    TA s 58 dealt with the effect of such a vesting order. It relevantly provided:

25. [77]

    The Court was given an alternative power to appoint a person to convey the relevant property. TA s 60 provided:

26. [78]

    Against this background, s 57 of the TA relevantly provided:

27. [79]

    The Transfer of Land Act 1958 (Vic) (“TLA”) made specific provision for registration which dovetailed with TA s 58(3). TLA ss 58 and 59 provided:

28. [80]

    The 2005 amendments were the product of a recommendation from the Victorian Law Reform Commission. The Commission’s Report (Victorian Law Reform Commission, Disputes Between Co-owners: Report, (December 2001) shows that it considered, as a possible model for the new legislation, the corresponding statutory provisions in New South Wales (Conveyancing Act 1919 (NSW) (“NSW CA”), Part 4, Division 6, ss 66F-66I) and Queensland (Property Law Act 1974, (Qld) Part 5, Division 2, ss 37-43). Those provisions were in similar terms, and it is only necessary to refer to the New South Wales legislation for present purposes.

29. [81]

    The key provision in the NSW Act was s 66G. It relevantly provided:

30. [82]

    The “statutory trust for sale” was defined in s 66F(2)(a) as follows:

31. [83]

    NSW CA s 66G did not contain an equivalent to PLA s 226 which expressly made the TA provisions on vesting orders applicable. But it was clear from NSW CA s 66G(3)(b) that vesting orders made under s 66G would be covered by the relevant New South Wales trustee legislation, the Trustee Act 1925 (NSW) (“NSW TA”).

32. [84]

    The NSW TA provisions were in very similar, and in some cases, exactly the same, form as the corresponding provisions of the TA. The circumstances in which trustees could be appointed were similar, including the circumstances specified in TA s 51(2)(i) and (m) (NSW TA s 71(2)(i) and (m)). The effect of the vesting order as set out in TA s 58 was effectively the same (NSW TA s 78) as was the alternative provision for the appointment of a person to convey property set out in TA s 60 (NSW TA s 79). There was also an equivalent to TA s 57 giving power to the Court to make a vesting order in cases of specific performance, partition or sale in lieu of partition, or the exchange of land (NSW TA s 77).

33. [85]

    Under New South Wales legislation, the provisions relating to the vesting of Torrens title land were also substantially the same. NSW TA s 78(3), corresponded with TA s 58(3), providing that land would not vest until the necessary entries were made in the Register. The New South Wales Torrens title legislation (Real Property Act 1900 (NSW) (“NSW RPA”)) contained provisions for registration in equivalent terms to TLA s 58 (NSW RPA s 86).

34. [86]

    The Commission’s Report was preceded by a Discussion Paper (Victorian Law Reform Commission, Disputes Between Co-owners: Discussion Paper, (June 2001)). In the Discussion Paper, the Commission identified (at [4.09]-[4.12]) three main reasons for replacing the 1958 version of PLA Part IV.

    1. (1)

       The language of the 1958 version of Part IV was derived from earlier legislation going back to partition laws in the sixteenth century, which had been amended in the nineteenth century to permit sale rather than partition in some circumstances. The language was described by the Commission as “archaic”, with some provisions, at least, using terms which were no longer current and likely to be understandable only by “very few lawyers”.

    2. (2)

       Originally partition had been the usual remedy, consistent with the main field of operation of the previous legislation being agricultural land. But in modern times the desirable remedy was to be sale. The Commission noted that, under the 1958 version of Part 4, this might not always be available.

    3. (3)

       The existing procedure was characterised by the Commission as “expensive, time consuming and rigid”. Proceedings had to be brought in the Supreme Court or the County Court which was likely to be expensive and might involve considerable delay. Court proceedings could not be avoided through the use of alternative dispute resolution, or at least there was no formal process for doing so. In some cases, for example where there was a lack of capacity to agree, a court order would be essential.

35. [87]

    The Commission went on to consider two alternative methods of reform, based on approaches in other jurisdictions. One was the approach in New South Wales (and Queensland) of appointing a trustee for sale, the other was the approach in British Columbia, which was essentially the same as the approach ultimately recommended by the Commission.

36. [88]

    In making the comparison, the discussion paper stated, at [4.16]-[4.17] (citations omitted):

37. [89]

    By comparison, the British Columbia approach was seen as even simpler, and lacking any obvious disadvantages. In particular, if all co-owners were adults of full legal capacity, the Commission stated that it was “cumbersome” to require the appointment of trustees for the sale or division of the property. The British Columbia approach was also seen as more flexible. The Discussion Paper suggested that giving a court or tribunal a broad power to divide the proceeds as it saw fit was “likely to lead to a fairer outcome”: at [4.19]-[4.20].

38. [90]

    The Report by the Commission essentially confirmed the preliminary views which had been expressed in the Discussion Paper and made recommendations accordingly. But the Commission did refer (at [4.49]) to a submission that in certain situations, such as where there was a risk of violence, “the NSW approach would be preferable”. Appointment of a trustee would provide a mechanism which, in such a case, would avoid direct contact between the co-owners and remove the possibility of coercion. The Commission added that other situations where it would be “necessary” to appoint a trustee included situations in which some of the co-owners were minors or were incapable of looking after their own affairs.

39. [91]

    The Report commented, at [4.50]:

40. [92]

    In his second reading speech (Victorian Legislative Assembly, Parliamentary Debates (Hansard), 14 September 2005 at 878)), the then Attorney General in substance repeated the conclusions of the Commission. Concerning the appointment of trustees he said:

41. [93]

    Case law in New South Wales establishes that trustees for sale appointed under NSW CA s 66G have all the ordinary duties and obligations of trustees, including to get the best price, to make appropriate enquiries and to take expert advice and act on it if they consider it appropriate: Harb v Harb [2010] NSWSC 1251 at [11]. It is also established that, at least once the trustees have been registered as the proprietors of the property in question, the co-owner’s rights of occupation cease. In Harb, at [15]-[19], Brereton J discussed the case law, concluding that after trustees have been appointed pursuant to s 66G, the rights of the owners of the property become rights to have the trust for sale performed and to share in the proceeds of sale. They no longer have a beneficial interests in the real property itself.

42. [94]

    One of the cases to which his Honour referred was Abbott v Pegler (1980) 1 BPR 9267. Trustees for sale of a property were appointed under s 66G but one of the co-owners (Mr Abbott) maintained that they were not entitled to sell the subject land until determination of earlier proceedings in which Mr Abbott had claimed an interest in that land. Powell J stated, at 9270:

43. [95]

    I referred to this line of authority in last December’s judgment. In distinguishing between the circumstances which obtained prior to the making of the sale orders and the circumstances which obtained thereafter, I stated (J3 [124]):

44. [96]

    Later in the judgment, when addressing problems which had arisen from the fact that one of the five properties had never been registered in the names of Dr Bremner and Mr French, but had remained registered in the name of the vendor, who had later died, I stated (J3 [136]):

45. [97]

    Counsel for the Purchasers accepted that these passages in the judgment would have been an accurate statement of the position if the Sale Orders had been made under NSW CA s 66G. But counsel contended that they were not applicable in the present circumstances where the Court’s power to appoint the Sale Trustee derived from the post-2005 version of PLA Part IV. Counsel pointed out that provisions for vesting of the property in question in the trustee (s 66G(1) and (3)) and for conversion (s 66G (7)(b)) were absent from Part IV.

46. [98]

    Counsel developed this contention by pointing to the changes made in 2005 and the justifications put forward by the Victorian Law Reform Commission, and picked up in the second reading speech, for those changes. In particular, counsel pointed out that the Parliament in 2005 had adopted a statutory regime giving VCAT wide powers to direct the sale of co-owned property (by the parties) and the division of the proceeds without the need for the appointment of a trustee. In the ordinary course the property would be sold by the parties. It was clear, in counsel’s submission, that this regime had been chosen in order to avoid technicality and rigidity.

47. [99]

    Counsel acknowledged that Part IV provides for the appointment of trustees for sale had been included in some cases. But counsel submitted that this did should not skew its interpretation. Counsel suggested that a trustee appointed under PLA s 231 should be seen as an “agent” for the owners rather than a fully-fledged independent trustee. In this regard, counsel referred to my discussion in Rookwood General Cemeteries Reserve Land Manager v Attorney-General NSW [2022] NSWSC 1763 at [183]-[211] of the case law distinguishing between statutes which create a trust in the strict sense, on the one hand, and “statutory trusts” on the other. Counsel submitted that PLA s 231 fell into the latter category.

48. [100]

    The usual practice in New South Wales is, I understand, that, following the making of a s 66G order, the appointed trustee is registered as the proprietor of the property in question (presumably under NSW RPA s 86). At the pre-trial hearing on 31 May, I asked Mr Stone’s legal representatives why this had not happened in the present case. By way of explanation, an affidavit was filed and read at the hearing on 6 June from Mr Michael John Clements, a solicitor employed by the firm acting for Mr Stone. Mr Clements has 17 years’ experience of practice as a solicitor in Victoria, primarily in property law. He deposed, based on his own experience as well as “research” that a person appointed, under PLA s 231, as trustee for the sale of co-owned land is not ordinarily registered on title following his or her appointment.

49. [101]

    Mr Clements attributed this practice to TLA s 37, which provides:

50. [102]

    Mr Clements also deposed to a discussion with Mr Khoi La who works with the Victorian Land Registry Services. Mr La’s title is “Principal Expert (Registrations)”. Mr La’s opinion, as recounted by Mr Clements, is that:

51. [103]

    According to Mr Clements, Mr La added that a trustee appointed under PLA s 231 cannot lodge a caveat because (in Mr La’s opinion) such a trustee does not have a caveatable interest in land.

52. [104]

    In the course of their submissions, counsel for the Purchasers invited me to accept the opinions expressed by Mr Clements and Mr La as expressing the correct understanding of the effect of PLA s 231.

53. [105]

    Counsel for the Sale Trustee and counsel for Dr Bremner contested these submissions. There was some difference in emphasis between them, but no actual disagreement.

54. [106]

    Neither the Sale Trustee nor Dr Bremner was a party to the Sale Agreement which is the source of the Purchasers’ claim in the 2024 proceedings. One might ask what jurisdiction the Court has to order them to assist the Purchasers in obtaining the benefit of that Agreement. They have no obligation to do so under the BA, and it is hard to identify any legal or equitable doctrine which could give rise to such an obligation either. The Court, of course, has power under PLA Part IV to give directions to them associated with effecting the sale of the properties under the Sale Orders, but that jurisdiction can be invoked by way of motion (provided the Purchasers have standing, a topic to which I will return below) in the 2014 proceedings, and did not require the institution of fresh proceedings. This point was not, however, explored in the submissions by counsel for the parties and I will say no more about it.

55. [107]

    I accept that in the usual case a sale under the post-2005 version of PLA Part IV is undertaken by the parties themselves pursuant to orders and directions made by VCAT. But the present case is not of that character. I have in fact made an order appointing Mr Stone as trustee for sale of the five properties. The question for determination is what, as a matter of interpretation of PLA s 231, the effect of that order was. How the interests of the parties should be characterised in the usual case, where no trustee is appointed, does not arise for decision and does not need to be considered.

56. [108]

    The starting point is that PLA s 231 refers to the appointment of a “trustee”. In deciding between a trust in the strict sense and a statutory trust, such terminology is not decisive, but it is relevant.

57. [109]

    It is also relevant that PLA Part IV is concerned with private rights (namely, the realisation of the property in question and the determination of the parties’ rights to the proceeds) rather than the discharge of public functions (Registrar of Accident Compensation Tribunal v Commissioner of Taxation (1993) 178 CLR 145 at 163-164). This point is reinforced by the broader history. Conveyancers originally devised trusts for sale centuries ago: Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015) (“MGL”) at [35-125]. When, in the nineteenth century, statutes began to be enacted providing for the appointment of trustees for sale, those statutes were only adopting a well-established private law institution for other private law purposes.

58. [110]

    If the argument by counsel for the Purchasers were correct, co-owners of a property the subject of an order under PLA s 231 would, despite the order, remain fully entitled to deal with their interests in the property. That would include disposing of their interests to third party purchasers. Any interest thus disposed of would cease to be saleable by the trustee. Indeed, on the Purchasers’ argument in the present case, the trustee would be obliged to assist the rival transaction.

59. [111]

    Such a consequence would defeat the whole purpose of appointing an independent person to effect the sale. The trustee’s efforts would be liable at any point prior to sale to be rendered irrelevant, with a consequent wastage of costs. Counsel for the Sale Trustee submitted, and I agree, that this is a most unlikely intention to attribute to the Parliament. It is particularly unlikely where one of the co-owners may be subject to pressure or coercion, which is the very type of case in which the Commission considered a trustee would usually be appointed.

60. [112]

    I do not think that it answers these points to say that the trustee is an agent rather than a trustee in the strict sense. Subject to any contrary terms of the contract of agency, an agent must act in accordance with the principal’s instructions and the agent’s authority may be terminated at any time by the principal, at which point the agent must account to the principal for any property entrusted by the principal to the agent. In the present case, the Sale Trustee’s authority and instructions come from orders of the Court, which may be directly contrary to the wishes of one or other of the co-owners. If it is correct to see the Trustee as the representative or agent of someone else, that someone would be the Court, not the co-owners.

61. [113]

    The Commission’s Discussion Paper and Report, and the second reading speech, do not displace these conclusions. Indeed, I think that they support them.

62. [114]

    It needs to be borne in mind that the regime which was replaced in 2005 was the regime under the 1958 version of PLA Part IV. That regime did not include the appointment of trustees for sale; rather, the sale of property was dealt with by way of directions made by the Supreme Court or the County Court, as the case might be (s 222). Trusteeship was only a feature of the 1958 regime once the property had been sold and it became necessary to receive and distribute the proceeds (s 227). The Commission expressly acknowledged the utility of the trustee procedure, so far as sale was concerned, in that, in the ordinary case, there is no need for the Court to be concerned with these matters at all.

63. [115]

    In this context it would be wrong to see the enactment of the new PLA Part IV as a wholesale rejection of the “NSW approach” reflected in s 66G. Rather, as counsel for Dr Bremner submitted, the Commission accepted that such an approach would an improvement on the 1958 Part IV, and effectively adopted that approach for cases which needed it.

64. [116]

    For these reasons, I reject the submissions by counsel for the Purchasers. In my view, a trustee for sale appointed under PLA s231 is a trustee in the ordinary sense. This leads me to three conclusions.

65. [117]

    First, the Sale Trustee is entitled, if he wishes, to be registered as the proprietor of any or all of the five properties the subject of the Sale Orders. This does not depend upon a vesting order being made. It is simply a consequence of the order appointing Mr Stone as trustee for sale.

66. [118]

    A trustee’s function is to hold the legal title to the trust property, and exercise the rights which that legal property confers, for the benefit of the beneficiaries under the terms of the trust. One of the trustee’s most basic duties is to get in the trust property by ensuring that the title is, if not in their names, at least in their control: Heydon JD, Leeming MJ, Jacobs’ Law of Trusts in Australia (2016, 8th ed, LexisNexis Butterworths) at [17-02]. A vesting order is one, but only one, way in which that can occur. The trustee’s status as trustee does not depend upon getting in the legal title, it is the other way around.

67. [119]

    It should be noted that NSW CA s 66G(2) does not provide for vesting where the appointed trustee is already trustee of the property. In the usual case, the trustee would already have got in the legal estate, but it still reinforces the point that the critical step in clothing the trustee with responsibility for effecting the sale is appointment, not vesting.

68. [120]

    So far, Mr Stone has not found it necessary to go onto the title himself. Instead, he has proceeded in accordance with what the evidence indicated is the usual Victorian practice of obtaining directions from the Court obliging Dr Bremner and Mr French to deal with the legal title in accordance with his requirements.

69. [121]

    But clearly trustees appointed under PLA s 231 are entitled to obtain the legal title if they want it. This can be achieved in various different ways. If co-owners fail to comply with a request for transfer by a trustee, an application may be made for a vesting order under TA s 51(2). And, although the express picking up of TA s 57 has been deleted from the post-2005 version of PLA Part IV, a s 231 order would appear to answer the description of a “judgment…. for partition or sale in lieu of partition” for the purposes of that section, so that it would still be available. Once a vesting order has been obtained, the trustee can proceed to registration under TLA ss 58 or 59. Indeed, TLA s 59 would appear to be directly available even without the making or a vesting order.

70. [122]

    An even simpler course would be to apply for an order under PLA s 232(i) requiring the co-owners to transfer the title to the trustees, or for an order under PLA s 232(j) directly providing for registration. I have no doubt that, if required to facilitate the sale or safeguard the property in the meantime, such orders would be made as a matter of course.

71. [123]

    In these circumstances, the Court would not have tolerated Mr French delaying or frustrating the discharge of Mr Stone’s duties under the Sale Orders by transferring his share of the properties to the PIA Trustee (or the Purchasers). For this reason alone, the Court would not now make any order which would result in the transfer of the title to the properties out of Mr French’s name prior to the sale. Nor is there any basis on which the Sale Trustee or Dr Bremner could be required to assist with any such transfer.

72. [124]

    My second conclusion, which may only be a broader way of expressing the first conclusion, is that, upon the making of the Sale Orders, Mr French no longer had any interest in the five properties apart from a bare legal title to the properties. The beneficial interest in those properties, which Mr French previously held, was replaced by an entitlement to receive a distribution from the proceeds in accordance with the Sale Orders, or such further orders which the Court might make in that regard. In substance, I consider that the propositions in Harb are equally applicable to a trustee appointed under PLA s 231.

73. [125]

    With all respect to those who may be of the contrary opinion, I do not see TLA s 37 as justifying any departure from those propositions. TLA s 37 is not unique to Victoria; it has an equivalent in other States and Territories (in New South Wales, RPA s 82). It, and its equivalents elsewhere, reflect a basic principle of the Torrens system, namely that the Register is made up of defined legal interests and does not include equitable interests: see Edgeworth B, Butt's Land Law (7th ed, 2017, Thomson Reuters) at [12.670].

74. [126]

    The idea that a person who becomes a trustee is entitled to be registered as the legal title holder is entirely consistent with this principle. There is no basis for a concern of the type attributed to Mr La that upon registration Mr Stone would be free to deal with the properties. That is exactly what he is supposed to do under the Sale Orders.

75. [127]

    Nor is it relevant that PLA s 231 contains no reference to conversion similar to that found in NSW CA s 66G(7)(b). In the first place, the circumstances of this case do not require any consideration of the equitable doctrine of conversion. That doctrine is concerned with the rules of succession law which distinguish between realty and personalty. Under the doctrine, personalty may be treated as if it was realty, or vice versa. The doctrine is related to, or is perhaps a particular application of, the maxim that equity regards as done that which ought to have been done. To say that a statutory trust for sale changes the co-owners’ interest from ownership of realty to an entitlement to the proceeds of sale does not require recourse to the doctrine. It is no more than a statement of how the statute operates: see MGL at [35-005, [35-125]. In any event, it seems that for the purposes of the doctrine s 66G(7)(b) is only declaratory of the general law: Burgess v Booth [1908] 2 Ch 648; Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 657-658.

76. [128]

    The third conclusion concerns the consequence of the assignment from Mr French to the PIA Trustee having covered only three of the five properties which were the subject of the Sale Orders. Counsel for the Purchaser submitted that, as a matter of construction of the Orders, I was wrong to say that there was one trust rather than five. In support of this submission, counsel relied on the chapeau to order 5 which refers to “each of” the three properties.

77. [129]

    I do not accept this submission. The critical order is order 2, and that refers to the appointment of Mr Stone as trustee for sale of all five properties, rather than each of the five properties individually. The position, I think, is put beyond doubt by order 5(e)(i), which expressly permits the receipts from one of the properties to be applied towards holding, maintenance or sale expenses associated with the other properties.

78. [130]

    It follows, in my view, that Mr French’s beneficial interest in the proceeds of sale was an interest in the fund as a whole, that is, the proceeds of all five properties. When Mr French purported to transfer his interest in three of the five properties to the PIA Trustee that was not an assignment which could take effect at law, entitling the PIA Trustee to make a claim to a share of the proceeds in his own name. It could only take effect as an assignment in equity: Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 29-30. The PIA Trustee was only entitled to a share of the proceeds received by Mr French upon the completion of sale of all five properties.

79. [131]

    If I am wrong in thinking that the effect of the Sale Orders was to create a trust in the strict sense, and instead it created only a “statutory trust”, then none of the conclusions which I have stated would be affected. The line between a statutory trustee and a trustee in the strict sense is a very fine one. In most situations, the classification will make no practical difference to the relief which can be obtained by, or against, the trustee: cf Rookwood at [263]-[264]. In particular, if Mr Stone were only a statutory trustee, the Court would still recognise him as being entitled (and indeed obliged) to proceed with the sale of the properties, and for that purpose to obtain or control the legal title to those properties, and the Court would still see the Purchasers interest as limited to a share of the eventual proceeds.

80. [132]

    Finally, if I am wrong in these conclusions, I would still not make the orders which the Purchasers seek. That is because Mr French has not been joined as a party to the proceedings. The orders are designed to obtain the transfer of the legal title from Mr French, who now holds it, to the Purchasers. In my view, Mr French clearly had an interest in opposing those orders and was entitled, as of right, to be heard: John Alexander’s Clubs Pty Ltd v White City Tennis Club (2010) 241 CLR 1 at [131].

81. [133]

    I have not overlooked the fact that notice was given to Mr French of the proceedings. That notice was belated; it was given only after the proceedings had been fixed for final hearing only a few days later. But, in any event, the entitlement is to joinder, not merely notice: John Alexander’s Clubs at [140]. Mr French was entitled to ignore the notification and to treat any resulting order as a nullity.

2014 proceedings

1. [134]

   In their final submission, counsel for the Purchasers produced a revised and expanded list of orders which they sought to have the Court make. The application was a bold one. The Court was asked to vacate paragraphs 2(a)(b)(c) and 5 of the Sale Orders. In place of a sale of the three properties by public auction, orders were sought for valuations of the properties to be obtained and for the Purchasers to be entitled to buy Dr Bremner’s 50% interest in the properties at the prices so obtained.

2. [135]

   If the Purchasers chose not to buy Dr Bremner’s share of any of the properties, the properties in question were to be sold at public auction. The sale was to be conducted by a nominated real estate agent (who, I understand, is one of the agents retained by the Sale Trustee) and a solicitor jointly instructed by Dr Bremner and the Purchasers, with the costs of sale to be paid out of the proceeds and the balance to be divided equally between the Purchasers and Dr Bremner, but with Dr Bremner’s share being paid into Court until further order.

3. [136]

   The effect of these orders would be to remove Mr Stone from any ongoing involvement in the sale of the three properties. Counsel for the Purchasers proposed consequential orders that Mr Stone’s remuneration and costs be paid by Dr Bremner and Mr French equally for the period up to the date of the Sale Agreement (28 March 2024) and, thereafter, equally by Dr Bremner and the Purchasers. But the amount payable by the Purchasers was not to include Mr Stone’s remuneration for the period after the Sale Agreement or his costs of these proceedings.

4. [137]

   The remaining two properties were to be left to Mr Stone to sell, with the proceeds to be applied, in each case, towards costs and expenses associated with the holding, maintenance (including defence against bushfires), or sale of the property and the trustee’s remuneration “in respect of” the sale of that property.

5. [138]

   The Sale Orders, in their current form, reserve two questions for further consideration (order (6B)). But, leaving aside for the moment any question of standing, the application by the Purchasers goes far beyond asking the Court to make further orders on those reserved questions. Rather, it is a wholesale attempt to rewrite the Sale Orders so that they accord with the Purchasers’ wishes, presumably based on their perceived commercial advantage.

6. [139]

   In last December’s judgment, I raised a question as to the application of the principle in Woods v Sheriff of Queensland (1895) 6 QLJ 163 which prevents the Court from entertaining an application to amend or discharge orders previously made, whether interlocutory or final (J3 [141]). For the purposes of that principle, it is necessary to distinguish between two types of order. There seems to me to be no difficulty with an application to vary orders which might be classified as mechanical, such as orders prescribing the mode or method of sale. But orders which I referred to as “substantive” orders, which determine the rights of the parties (including, for present purposes, Mr Stone) to the proceeds are another matter. I expressed the view that the Woods principle would seem to prevent such orders being reconsidered.

7. [140]

   As the application is now presented, the Purchasers seek orders which would:

   1. (1)

      interpose a new method of realising the three properties, involving a change to the nature of the property being realised (that is, Dr Bremner’s half share rather than the property as a whole), to be determined in accordance with a valuation rather than a sale on the open market (cf J3 [112]-[117]);

   2. (2)

      deprive Mr French (and Dr Bremner) of their entitlement to make a claim for expenses incurred and services provided in maintaining those properties since the Sale Orders were made (cf J3 [118]-[128]);

   3. (3)

      deprive Mr Stone of his entitlement to have his remuneration and disbursements paid out of the costs of sale and, in the case of his costs and disbursements of these proceedings, deprive him of recoupment of such costs and disbursements entirely;

   4. (4)

      at the same time, deprive Mr French and Dr Bremner of the opportunity to require Mr Stone to justify his remuneration and disbursements (cf J3 [129]-[133]); and

   5. (5)

      override the reservation of how Mr French’s share of the net proceeds are to be apportioned, replacing it with a formulation based on “costs in respect of the sale”, the content of which is unclear (cf J3 [134]-[140]).

8. [141]

   These features of the proposed orders are substantive rather than mechanical in nature. I acknowledge that I have already varied the Sale Orders once, but further reflection only serves to reinforce the conclusion I tentatively reached last December that this was impermissible. The Orders stand because there has been no appeal against them. But that is no reason to make the same mistake again. In my view, the Woods principle prevents me from entertaining the Purchasers’ application.

9. [142]

   If I am wrong in this view, I would still, as a matter of discretion, decline the application. The Sale Orders were exhaustively reconsidered last year. The Purchaser’s predecessor in title (the PIA Trustee) participated in that hearing. The sale process is well advanced and, if I were to make the orders sought, that could well result in further delay and expense. As a matter of discretion, the proper course would simply be to leave the orders in their current form to allow the sale to complete and then to deal with any reserved matters in the way contemplated by the Sale Orders.

10. [143]

    Finally, the same problem arises as arose in the 2024 proceedings: Mr French has not been joined. Even more clearly, the orders sought affect his interests. As the present motion was not filed until after the hearing took place on 6 June, Mr French has not even been notified of it. Even if I were wrong on other questions, the application would have to be refused for that reason alone.

11. [144]

    Strictly speaking, as a result of my earlier conclusions, the PIA Trustee probably had no entitlement to be joined as a cross-defendant in the 2014 cross-claim. However, as I have stated, I reserved an issue for determination as between the PIA Trustee about the division of the proceeds and that, I think, is sufficient to give the PIA Trustee ongoing standing. However, the same cannot be said for the Purchasers. At present, they have been joined as additional cross-defendants, that is, additional to the PIA Trustee. If they are not to be substituted for the PIA Trustee then the appropriate order might be for them to be removed as cross-defendants and for the further determination of the reserved issue to be dealt with by the PIA Trustee, but I leave that question for the parties to consider.

12. [145]

    It must be borne in mind that I only reserved determination of two specific issues. In last December’s judgment I dealt finally with all other questions of entitlement. And, as I have pointed out, neither the PIA Trustee nor the Purchasers, as the assignee of the PIA Trustee, has sought to take advantage of my reservation of that issue for further consideration. On the conclusions I have stated above, neither the PIA Trustee nor the Purchasers would have standing to address any other issue.

Orders

1. [146]

   Counsel for the Purchasers accepted that, given my conclusions, the 2024 proceedings and the Purchasers’ motion in the 2014 proceedings should be dismissed. Counsel also accepted that there should be orders for costs in favour of the Sale Trustee and Dr Bremner. But, as already noted, counsel then asked me not to make orders disposing of the proceedings, so that an application could be made for orders to preserve the position pending an appeal, and I acceded to that request.

2. [147]

   The orders of the Court on 20 June were:

   1. (1)

      Adjourn the proceedings to 28 June 2024 at 2pm before Parker J.