SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
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JD & KJ ZOHS PROPERTIES PTY LTD v FERME & ANOR
[2014] SASC 146
Judgment of The Honourable Justice Stanley
26 September 2014
EQUITY - TRUSTS AND TRUSTEES
CONVEYANCES AND TRANSFERS
-
VESTING
ORDERS,
REAL PROPERTY - GENERAL PRINCIPLES - OTHER MATTERS
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA
- PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
The plaintiff brings an application for summary judgment. It seeks an order for specific
performance of a contract for the sale of land.
A contract for the sale of land was entered into between the defendants, as executors of a
deceased estate, (as vendors) and Jason Zohs and Kim Zohs (as purchasers). Mr and Mrs
Zohs assigned their right, title and interest in the contract to the plaintiff by a Deed of
Assignment. The plaintiff then executed a Memorandum of Transfer. The Memorandum of
Transfer was executed by the second defendant. The plaintiff, by letter, required the first
defendant to execute the Memorandum of Transfer. The Memorandum of Transfer has not
been executed by the first defendant.
The plaintiff seeks a declaration that the contract is valid and enforceable and orders for
specific performance of the contract, together with damages and costs. The plaintiff makes
an application for summary judgement pursuant to 6SCR 233.
Plaintiff: JD & KJ ZOHS PROPERTIES PTY LTD Counsel: MR T COX SC - Solicitor: VOUMARD
LAWYERS
First Defendant: MURRAY ROBERT FERME (IN HIS PERSONAL CAPACITY) Counsel: MR S
OWER - Solicitor: KELLY KELLY LEGAL
Second Defendant: REBECCA JENNETTE CRAWFORD Counsel: MR G EDMONDS-WILSON Solicitor: MELLOR OLSSON
Non-Party: PAMELA JOY PILKINGTON Counsel: MR J WHITE - Solicitor: ANDERSONS
SOLICITORS
Non-Party: GEOFFREY RAYMOND SMART
Counsel: MR J WHITE - Solicitor: ANDERSONS
SOLICITORS
Non-Party: REGISTRAR-GENERAL Counsel: MS C MURPHY - Solicitor: CROWN SOLICITOR FOR
THE STATE OF SOUTH AUSTRALIA
Hearing Date/s: 04/09/2014
File No/s: SCCIV-14-1039
B
2
Whether the second defendant should be appointed pursuant to s 40 of the Trustee Act 1936
(SA) to execute the Memorandum of Transfer on the first defendant’s behalf.
Held (making orders effecting the general relief sought by the plaintiff):
1. The plaintiff has demonstrated the need for the relief sought.
2. The circumstances would justify the making of a vesting order.
3. It is more convenient, in the circumstances, to make an order pursuant so s 40 of the
Trustee Act appointing the second defendant to convey the land.
Supreme Court Rules 2006 (SA) r 233; Trustee Act 1936 (SA) s 37, s 40; Real Property Act
1886 (SA) s 64; Trustee Act 1925 (NSW), referred to.
Re Purkiss [1999] 3 VR 223; Meier v Dorzan Pty Ltd [2010] NSWSC 664, considered.
JD & KJ ZOHS PROPERTIES PTY LTD v FERME & ANOR
[2014] SASC 146
Civil
STANLEY J:
Introduction
1
The plaintiff brings an application for summary judgment. It seeks an order for
specific performance of a contract for the sale of land. On 4 September 2014 I
made orders effecting the general relief sought by the plaintiff. I did so on the
basis that I would provide reasons at a later date. These are my reasons.
The facts
2
On 20 June 2014 a contract was entered into between the defendants, Murray
Robert Ferme and Rebecca Jenette Crawford, as the executors of the estate of
Mavis Jean Smart, deceased (as vendors) and Jason Denis Zohs and Kim Jane Zohs
and/or nominee (as purchasers) for the sale and purchase of land comprised in
Certificates of Title Volume 5442 Folio 579, Volume 5532 Folio 238 and Volume
5532 Folio 402 (the land). The purchase price was $1.4 million. The purchasers
paid the vendors a deposit of $15,000.
3
On 4 July 2014 Mr and Mrs Zohs assigned their right, title and interest in the
contract to the plaintiff by a Deed of Assignment of the same date.
4
At all times since 4 July 2014 the plaintiff has been ready, willing and able to settle
under the contract. The defendants have not settled under the contract.
5
On 9 July 2014 the plaintiff executed a Memorandum of Transfer. The
Memorandum of Transfer has been executed by the second defendant, Ms
Crawford. By letter dated 18 July 2014 from its solicitors, the plaintiff required
the first defendant, Mr Ferme, to execute the Memorandum of Transfer by 5 p.m.
on 23 July 2014. The Memorandum of Transfer has not been executed by the first
defendant.
6
The plaintiff seeks a declaration that the contract is valid and enforceable and
orders for specific performance of the contract, together with damages and costs.
The plaintiff has applied for summary judgment pursuant to 6SCR 233(1) on the
question of whether or not the declaration should be made and specific
performance granted.
7
There is evidence before the Court that the health of the first defendant is such as
to prevent him from executing the Memorandum of Transfer. He has indicated
that he is prepared to consent to an order that he execute the transfer.
Stanley J
[2014] SASC 146
2
Section 40 of the Trustee Act 1936 (SA)
8
The plaintiff seeks an order that in these circumstances the second defendant be
appointed pursuant to s 40 of the Trustee Act 1936 (SA) to execute the
Memorandum of Transfer on behalf of the first defendant transferring the first
defendant’s estate and interest in the land to the plaintiff for the purposes of the
Real Property Act 1886 (SA) and to execute all other instruments on behalf of the
first defendant and take all other steps required to transfer and convey the land to
the plaintiff pursuant to the contract.
9
Section 40 provides:
Power to appoint person to convey
In all cases where a vesting order can be made under any of the foregoing provisions
the Supreme Court may, if it is more convenient, appoint a person to convey the land
or release the contingent right, and a conveyance or release by that person in conformity
with the order shall have the same effect as an order under the appropriate provision.
10
The exercise of the power conferred upon the Court pursuant to s 40 to appoint a
person to convey land is conditional upon two factors. First, the Court must be
satisfied a vesting order could be made pursuant to the Trustee Act. Secondly, the
Court must be satisfied it is more convenient to make an order pursuant to s 40
than to make a vesting order.
11
Section 37(1)(f) of the Trustee Act provides that where a trustee jointly or solely
entitled to or possessed of any land, has been required, by or on behalf of a person
entitled to require a conveyance of the land, to convey the land, and has wilfully
refused or neglected to convey the land or release the land for 28 days after the
date of the requirement, the Court may make an order, called a vesting order,
vesting the land in any such person in any such manner and for any such estate as
the Court may direct. A vesting order is a remedy to overcome circumstances
where a transaction or transfer cannot be effected and it is necessary that an order
be made to rectify an otherwise uncertain and unjust set of circumstances. 1
12
The question of convenience in s 40 of the Trustee Act does not erect a high
threshold. It merely requires the Court to be satisfied in a relative sense that it is
more convenient to make one form of order over another. That is to say that there
is an advantage to making an order pursuant to s 40 rather than a vesting order. In
Meier v Dorzan Pty Ltd2 Slattery J considered the test was met on the basis that the
plaintiff had structured the order she sought pursuant to the equivalent provision
in the Trustee Act 1925 (NSW) and had made arrangements for that conveyance.
1
2
Re Purkiss [1999] VSC 386 at [17], [1999] 3 VR 223 at 228.
[2010] NSWSC 664 at [71].
[2014] SASC 146
Stanley J
3
Consideration
13
The first defendant holds the land on trust as an executor of the estate of Mavis
Jean Smart, deceased. I am satisfied that the first defendant has neglected to
convey the land for a period in excess of 28 days since the plaintiff required him
to do so in accordance with the contract by 5 p.m. on 23 July 2014. The first
defendant, who is jointly entitled to or possessed of the land, has been required by
or on behalf of the plaintiff, who is entitled to require a conveyance of the land, to
convey the land and has neglected to do so for more than 28 days. Accordingly,
the Court is empowered in those circumstances to make a vesting order, or if it is
more convenient, appoint a person to convey the property. The order sought
pursuant to s 40 will have the same effect as a vesting order.
14
On consideration of the evidence, which has been thoroughly assembled by the
plaintiff, I am satisfied that the plaintiff has put forward a proper case for the
making of an order pursuant to s 40 of the Trustee Act. I am satisfied the plaintiff
has demonstrated the need for the relief sought given the circumstances set out
above. While the mechanism sought to effect the conveyance of the land in
accordance with the contract is not necessarily the only remedy available, I am
persuaded that it is appropriate to make the order pursuant to s 40. I am satisfied
that the circumstances would justify the making of a vesting order. I am further
satisfied that, in combination with the making of a number of ancillary orders, it is
more convenient to appoint the second defendant to convey the land rather than to
make a vesting order.
15
The circumstances of this case are not dissimilar to Meier v Dorzan.3 There is no
opposition by the second defendant to the making of the order pursuant to s 40.
Counsel for the Registrar-General submitted that the orders sought pursuant to s 40
of the Trustee Act would be sufficient to enable the registration of the transfer if it
was executed in accordance with the terms of the order sought.
16
The ancillary orders I propose to make require the plaintiff to pay the balance of
the purchase price together with any allowance for the adjustment of rates and
taxes or other outgoings in respect of the land on or before 25 September 2014 and
the second defendant to deliver to the plaintiff a Memorandum of Transfer in
registerable form which has been executed by the second defendant. Should the
second defendant fail to produce the duplicate Certificates of Title pursuant to the
order, then upon payment into Court by the plaintiff of the balance of the purchase
price, together with any allowance for the adjustments referred to, I order that any
person in possession of the duplicate Certificates of Title should deliver up the
same to the Registrar within seven days of the date of service of this order upon
that person. Otherwise the plaintiff and the second defendant are to execute all
such instruments and do all such things as may be necessary to carry into effect
the terms of this judgment. Upon lodgement of the Memorandum of Transfer and
the duplicate Certificates of Title and any other instruments required with the
3
[2010] NSWSC 664.
Stanley J
[2014] SASC 146
4
payment of all necessary fees, the Registrar-General is directed pursuant to s 64 of
the Real Property Act to register the transfers on the Certificates of Title for the
land notwithstanding that the Memorandum of Transfer shall only have been
executed by one of the executors of the estate of the late Mavis Jean Smart and one
of the registered proprietors of the land; provided further that in the event that the
duplicate Certificates of Title are not produced to the Registrar-General with the
Memorandum of Transfer, the Registrar-General is directed pursuant to s 64 to
cancel the Certificates of Title and issue new original and duplicate Certificates of
Title in the name of the plaintiff as the registered proprietor of the whole of the
land.
Conclusion
17
18
I am satisfied that the Court’s power pursuant to s 40 of the Trustee Act has been
enlivened. I am satisfied it is more convenient to make an order pursuant to s 40
of the Trustee Act than to make a vesting order. I do so.
I will adjourn to a later date the hearing in relation to damages and costs