Noelle Elizabeth Hillman v Lynda Box, Debrah Box and Skye Box as Executors of the Will of Graeme William Box

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 18 February 2011
• Court: Supreme Court of ACT
• Date: 18 February 2011
• Docket Number: No. SC 564 of 2010

[2011] ACTSC 24

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SC 564 of 2010

Between:

Noelle Elizabeth Hillman

Plaintiff

and

Lynda Box, Debrah Box and Skye Box as Executors of the Will of Graeme William Box

Defendants

Counsel for the plaintiff: Dr D Hassall

Counsel for the defendants: Dr C Ward

Hillman v Box and Ors as Executors of the Will of Box (No 2) [2011] ACTSC 10

Hillman v Box and Ors as Executors of the Will of Box [2010] ACTSC 153

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 4(3)

Civil Procedure Act 2005 (NSW), s 94

Court Procedures Rules 2006 (ACT), s 782

Trustee Act 1925 (ACT), s 79

REAL PROPERTY — sale by the Court — whether to attach copy of order to contract — not necessary — no issue of principle.

COSTS — whether acceptance of submission entitles party to costs — turns on its own facts.

1 On 31 January 2011, I delivered reasons for proposing certain orders to permit the sale of certain properties said to be part of the Estate of the deceased Graeme William Box, but claimed by the plaintiff, or in which she claimed to have an interest or other entitlement. See Hillman v Box and Ors as Executors of the Will of Box (No 2) ACTSC 10 (at [79]), where the proposed orders are set out.

2 I then gave the parties leave to file written submissions on those orders and on the costs of the proceedings which have led to the orders I make today. I proposed then to make the orders in chambers unless there was need to relist the matter for further submissions.

3 Both parties made brief submissions dated 7 February 2011. Having read them, I do not need to list the matter for further submissions, and will now make the relevant orders in chambers.

4 It does seem to me appropriate, however, to publish brief reasons for making the orders I make.

The orders

5 Neither plaintiff nor defendants submitted that I should vary the proposed orders except in one way. The only variation proposed was for the deletion of a proposed provision that a copy of the order relevant to the sale of what was called the Spence property should be attached to the contract of sale for that property, which should also include in it a statement that it was made under the order.

6 Although the draft minutes originally submitted by the defendants had proposed such a provision, their subsequent submissions now proposed its deletion. They described the rationale as that they ‘are unable to see any legal or formal requirement [for it]’ and that ‘there may be the incorrect perception of a “fire sale” on the part of prospective purchasers.’

7 The plaintiff agrees to the deletion of that provision.

8 I accept that there is no legal requirement for it, and will not include it in the formal orders made. The order will, however, still be required to be filed with the Registrar-General, and this should meet all legal requirements sufficiently.

9 Accordingly, with that variation, I will make the orders as I otherwise proposed with a minor clarification to the amended 4 (d).

Costs

10 The defendants submitted that they should have their costs since the orders to be made closely reflected the short minutes filed by them save for the reliance on s 79 of the Trustee Act 1925 (ACT).

11 It is true that I made some minor amendments to the other orders in accordance with proposals made by the plaintiff, who cannot be said to have ‘failed entirely,’ but it is fair to say that on the main issues, none of the substantive proposals of the plaintiff were accepted.

12 The plaintiff, on the other hand, submitted that the costs should be costs in the cause. This seems to be submitted on the basis that the court, recognising that the parties would not accept alternatives discussed by me (see Hillman v Box & Ors as Executors of the Estate of Box (No 2) (at [7] to [23]), had to draft its own proposals.

13 I do not accept that characterisation. It seems to me that I had to include that in order to explain why there was a difference between the approach of the two parties to be resolved in the variation that had to be made to my original orders (see Hillman v Box and Ors as Executors of the Estate of Box [2010] ACTSC 153). It is also true that neither party provided the answer to an important question of how I could, within jurisdiction, order that the Registrar of the Supreme Court execute the contract and transfer, and I had to decide that for myself.

14 Basically, however, I rejected completely the plaintiff's proposals in relation to the Spence property and broadly adopted the defendants' proposals. The amendments in relation to the order about the property at Queanbeyan, NSW, that I made as submitted by the plaintiff, were not insignificant but were quite minor and, primarily, drafting matters.

15 In those circumstances, it seems to me that the defendants should have their costs. There is one modification to that. Since the variation of the order proposed about the Spence property was made necessary because of its inclusion...