FEDERAL COURT OF AUSTRALIA

Coshott v Coshott [2016] FCA 966

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application by Robert Coshott and Ljiljana Coshott dated 20 May 2016 and filed on 25 May 2016 be dismissed with costs.

2.    The determination made by the Registrar on 16 May 2016 be confirmed, subject to any updating of the amounts involved required as provided by order 3 below.

3.    By 4.00 pm on Friday, 3 February 2017, or such other date as may be fixed, the parties provide any written submissions and draft orders of no longer than three (3) pages in relation to:

(a)    any updating required of the amounts in the determination of the Registrar made 16 May 2016; and

(b)    any further orders that should be made in relation to the payment of the costs of this application.

4.    The parties may seek leave to file any further evidence upon which they seek to rely for the purposes of the submissions in order 3 above.

5.    The final orders on the review of the Registrar’s determination and on costs be made in Chambers, subject to any submission being acceded to that a further hearing needs to take place.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    The applicants in this interlocutory application for a review of a determination made by a Registrar of this Court brought under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) are Robert Gilbert Coshott and Ljiljana Coshott (the Coshotts), who are husband and wife. In a number of judgments the Coshotts have, for ease of reading and without any disrespect, been referred to by their first names. I will adopt that approach in these reasons. The respondents to this interlocutory application, Shabnam Amirbeaggi and Nicholas Crouch, were the Court-appointed statutory Trustees for Sale in respect of the Court-ordered sale of property in Bellevue Hill, Sydney.

2    The property was originally owned by the interlocutory applicants as joint tenants. By reason of declarations made by Buchanan J in the bankruptcy jurisdiction, that was changed to a tenancy in common shared by the trustee of Robert’s bankrupt estate, Maxwell Prentice, and Ljiljana. The property was required to be sold in order to meet certain costs associated with the administration of Robert’s now-discharged bankruptcy. The costs of and associated with that sale have themselves been very substantial, including dealing with a wide range of legal and practical impediments to the sale taking place.

3    The Coshotts seek to overturn a determination by a Registrar of this Court that the Trustees for Sale be paid $761,810.53 from the proceeds of the sale of the property. For the reasons that follow, the application must be dismissed with costs.

Overview

4    On 10 September 2013, Buchanan J made orders for appointment of a trustee for sale. His Honour originally appointed Mr Prentice and included orders as to his “expenses” and “reasonable legal costs and disbursements” associated with the sale of the land. I will refer to those and subsequent like orders as recompense orders. The orders of 10 September 2013 were partially overturned by the Full Court in Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450, although most grounds of appeal failed. The Full Court ordered Ljiljana and her co-appellant to pay 90% of Mr Prentice’s costs.

5    The part of the 10 September 2013 orders made by Buchanan J that was overturned by the Full Court concerned the appointment of Mr Prentice as trustee for sale because their Honours concluded (at 457 [20] and 479 [131]) that the statutory basis that needed to be relied upon to effect the appointment of a trustee for sale was not s 30 of the Bankruptcy Act 1966 (Cth), but rather s 66G of the Conveyancing Act 1919 (NSW) as applied as surrogate federal law by s 79 of the Judiciary Act 1903 (Cth). Section 66G(3)(a) required the appointment of at least two individual trustees (or a corporate trustee), such that the appointment of Mr Prentice alone as sole trustee for sale was not valid.

6    The Full Court also held (at 479 [133]-[134]) that payments to the appointed trustee for sale for professional and legal costs of the proceedings should be confined to being made out of the proceeds of sale from Robert’s share and should not be paid from the proceeds of the sale in priority to distribution to Ljiljana as a co-owner, because to do otherwise would have the effect of ordering security for costs against Ljiljana in respect of the proceedings. Their Honours made a substitute order accordingly in that limited respect. There was no such limitation imposed by the Full Court in relation to the recompense of the Trustees for Sale in the execution of that statutory trust.

7    The matter was therefore remitted to Buchanan J to make a fresh trustee for sale appointment. This necessarily entailed his Honour having responsibility for any ancillary orders that needed to be made. Apart from the varied order as to the professional and legal costs of the proceedings, no other restriction was imposed by the Full Court on the orders that could be made or changed by Buchanan J. Nor is it apparent that the Full Court would have had any reason to do so as that would entail going beyond the scope of the appeal and the limited changes required to be made to the orders made by Buchanan J.

8    On 19 September 2014, following the Full Court’s decision, Buchanan J made orders appointing the present respondents as Trustees for Sale. It was suggested that there was a slip in reference to the paragraph number of prior orders (a reference to paragraph 6 instead of paragraph 7 of the 10 September 2013 orders), but I am satisfied that is not so, and that the references made were intentional, as the reproduction of them below demonstrates. Buchanan J also varied the recompense orders so that the Trustees for Sale were “entitled to deduct their remuneration, costs and expenses of acting as Trustees for Sale”. That particular phrase is of some importance to the application brought by the Coshotts because they seek to read those words down to confine the entitlement to remuneration, legal costs and other expenses of the Trustees for Sale in respect of their conduct of the sale itself and nothing more.

9    Importantly, as discussed below, those additional and varied orders made by Buchanan J have never been the subject of any appeal or application for leave to appeal. Any such application would then and especially now have poor prospects of success. I therefore proceed upon the basis that those orders are final and valid, especially in light of the authority discussed below. The same approach must be taken to the finality of the orders subsequently made by Buchanan J on 16 October 2015 and 26 October 2015, referred to below, which similarly have never been appealed, or made the subject of any application for leave to appeal.

10    On 16 October 2015, Buchanan J made orders appointing a Registrar to determine the amounts to be paid to the Trustees for Sale pursuant to the prior orders for appointment and for recompense. As discussed below, that appointment was of constitutional significance because it was a delegation of powers by a judge which must be of limited scope in order to be valid, but was not of constitutional controversy because the authority to make such a delegation is well-established by long-standing authority. On 26 October 2015, Buchanan J varied the recompense orders made on 19 September 2014, not as to scope of entitlement, but so that the order referred to the proceeds of sale of the property rather than to timing of events described in the prior orders.

11    On 16 May 2016, following a hearing at which evidence was adduced, written submissions considered and oral submissions made on behalf of the Trustees for Sale (there being no appearance by the Coshotts and no submissions or evidence filed on their behalf in accordance with a timetable), a Deputy District Registrar of this Court (the Registrar) issued a costs determination in favour of the Trustees for Sale, ordering that they be paid a total of $761,810.53.

12    On 25 May 2016, the Coshotts filed an interlocutory application by which they sought the following orders (verbatim, including as to punctuation, except as indicated by square brackets):

1.    The orders made by [the Registrar] on 16 May 2016 be set aside

2.    Such further or other orders as to this court may seem appropriate

3.    Nicholas Crouch and Shabnam Amirbeaggi pay the costs of this interlocutory application and before [the Registrar]

13    At the hearing before me it was made clear by senior counsel appearing for the Coshotts that the application was brought under s 35A(5) of the Federal Court Act, and that the reference in paragraph 2 of the interlocutory application was a reference under s 35A(6) to the power to make additional orders on a review. For completeness it should be noted that under s 35A(6) the review power and thus additional orders power may also be exercised by the Court on its own motion.

14    The interlocutory application in terms seeks to have the Registrar’s determination set aside with costs of the proceedings both in this Court and before the Registrar. The nature of a review following such an application entails a judge conducting a de novo determination of the matters that were dealt with by the Registrar, effectively making the Trustees for Sale the moving parties on the review, as they were before the Registrar. However, the issues sought to be raised by the Coshotts are more wide-ranging than merely reviewing that determination. Having regard to the way in which this application was litigated, including the evidence and the written and oral submissions for both sides, the topics and thereby issues to be considered and determined came down to the following:

(1)    the scope of the orders by which the Trustees for Sale were appointed and ordered to be recompensed, including in particular as to the nature and scope of what they were entitled to be paid (Scope of Trustee for Sale orders);

(2)    the jurisdiction of this Court to make or give effect to orders for recompense of the Trustees for Sale, whether exercised by a judge or by delegation by a registrar (The jurisdiction or power to award recompense to the Trustees for Sale); and

(3)    the de novo review of the determination made by the Registrar on 16 May 2016 as to what the Trustees for Sale should be paid (De novo review of the Registrar’s determination).

15    By reason of the conclusions I reach below, I consider that only the third of those issues was properly before me in an application for a review of the Registrar’s determination under s 35A(5) of the Federal Court Act, with all the legal limitations that must entail. That application was not at any time sought to be amended, and no other process of review, leave to appeal or appeal was relied upon. This application was not brought as any wider ranging judicial review of the actions of the Registrar that might have been possible. Nor, as noted above, has there ever been any application for leave to appeal, appeal, or further appeal, from any of the various interlocutory orders made by Buchanan J on 10 September 2013 (except as already dealt with by a Full Court), 19 September 2014, 16 October 2015, or 26 October 2015. However the first two issues listed above, once raised, had to be and are addressed below.

Scope of Trustee for Sale orders

16    The orders made by Buchanan J on 10 September 2013 were as follows:

In respect of the application in this Court in NSD 1412 of 2009

THE COURT ORDERS THAT:

1.    The application filed in the Supreme Court of New South Wales on 24 June 2009, later transferred to this Court, is dismissed.

2.    The applicants in this Court are to pay the costs of the second respondent, as taxed, on an indemnity basis.

In respect of the further amended cross-claim in this Court in NSD 1412 of 2009

THE COURT DECLARES THAT:

3.    The property 1 Bunyula Road, Bellevue Hill being the whole of the land contained in Certificate of Title Folio Identifier 2/336490 (“the property”) was acquired by the second cross-respondent and the third cross-respondent beneficially as joint tenants.

4.    Upon the date of bankruptcy of the third cross-respondent, the joint tenancy between the second cross-respondent and the third cross-respondent in the property was severed and the ownership became:

4.1    the second cross-respondent as to an undivided one half share;

4.2    the cross-claimant as to an undivided one half share

as tenants in common.

5.    The half interest in the property registered to the third cross-respondent vested in the cross-claimant pursuant to sections 58, 115(1) and 116(1) of the Bankrupty Act 1966 (Cth) [sic], as and from the date of the commencement of the bankruptcy of the third cross-respondent.

THE COURT ORDERS THAT:

6.    The property vest in the cross-claimant as trustee for sale.

7.    The property be sold by the cross-claimant as trustee for sale, with all the obligations and privileges pertaining thereto (including signing for and on behalf of the second cross-respondent any contract for the sale of land and any transfer pursuant to the Real Property Act 1900 (NSW) and determining the price at which the property is to be sold) and the proceeds after payment of all expenses of and incidental to such sale to be divided equally between the cross-claimant and second cross-respondent, pursuant to order 11.

8.    For the purposes of giving effect to order 7, the second cross-respondent, by herself her servants and agents do all such things, acts and deeds and sign all documents to list for sale and sell the property, and for that purpose, including but not limited to the following:

8.1    maintain the property in a clean and presentable manner as required for the proper and effective marketing of the property;

8.2    allow and permit for an inspection of the property on 24 hours notice     of a request made by the cross-claimant or agent for sale.

9.    Each cross-respondent deliver up vacant possession of the property 42 days from these orders.

10.    Pending the sale of the property and to the extent to which she is able, the second cross-respondent shall continue to meet one half of the outgoings (including electricity, gas, telephone and council rates) in respect of the property.

11.    Upon completion of the sale of the property, the proceeds thereof be distributed in the following manner and priority:

11.1    Firstly, in discharge of any valid encumbrance over the title to the Property;

11.2    Secondly, in payment of agent’s commission, auctioneers and auction fees associated with the sale of the property;

11.3    Thirdly, expenses and reasonable legal costs and disbursements incurred upon the sale of the property;

11.4    Fourthly, in adjustment of council rates, water rates and other statutory imposts;

11.5    Fifthly, in payment of the cross-claimant’s professional and legal costs of the proceedings;

11.6    Sixthly, and subject to orders above, the remains to be divided equally between the cross-claimant and the second cross-respondent subject to any charge or lien.

12.    The cross-respondents are to pay the costs of the cross-claimant, as taxed, on an indemnity basis.

17    On 23 July 2014, the Full Court made the following orders in proceedings number NSD 2016/2013:

THE COURT ORDERS THAT:

1.    The appeal is dismissed subject to orders 2, 3 and 4.

2.    The appointment of the cross-claimant as the trustee for sale is set aside.

3.    Order 11.5 of the orders below is set aside and substituted by the following order:

“Fifthly, and from the proceeds of the sale of the half interest in the property vested in the cross-claimant, in payment of the cross-claimant’s professional and legal costs of the proceedings;”

4.    The matter be remitted to the primary judge to appoint a corporate trustee or individual trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) as applied by s 79 of the Judiciary Act 1903 (Cth).

5.    The question of costs be reserved.

6.    The parties notify the Court within seven days as to whether they wish to be heard on the question of costs or are content for the Court to make orders to the effect of those foreshadowed in these reasons for judgment.

18    The Full Court subsequently made orders on 23 September 2014 that the appellants (Ljiljana and Schlotzsky’s Nominee Company Pty Limited) should pay 90% of Mr Prentice’s costs of the appeal in NSD 2016/2013, as well as confirming the costs orders in NSD 1412/2009.

19    Subsequent to the Full Court’s substantive orders on 23 July 2014, orders were made by Buchanan J on 19 September 2014, 2 October 2015, 16 October 2015 and 26 October 2015. It is necessary and convenient to set out the orders made on those dates in order to be clear as to what transpired.

20    On 19 September 2014, Buchanan J made the following orders:

THE COURT ORDERS THAT:

1.    Matters NSD 1412/2009, NSD 916/2014 and NSD 917/2014 be hereafter and subject to any further order of the Court heard together.

2.    In substitution for order 6 made on 10 September 2013 and set aside by the Full Court of the Federal Court on 23 July 2014 the following order: -

“6.    That Shabnam Amirbeaggi and Nicholas Crouch both of Crouch Amirbeaggi, Suite 403, 55 Lime Street, King Street Wharf, Sydney NSW 2000 and both registered Trustees in Bankruptcy be appointed Trustees for Sale (“Trustees for Sale”) and they be entitled to charge their remuneration at the rate set out in the rates attached to their Consent filed in these proceedings.”

3.    Order 7 made on 10 September 2013 be amended by the deletion of the words “cross-claimant as trustee for sale” and insertion of the words “Trustees for Sale” in lieu thereof.

4.    As ordered by the Full Court of the Federal Court on 23 July 2014 order 11.5 is duly amended to read: -

“11.5    Fifthly, and from the proceeds of the sale of the half interest in the property vested in the cross-claimant, in payment of the cross-claimant’s professional and legal costs of the proceedings.”

5.    That, prior to the distribution in order 11.6 made 10 September 2013 the Trustees for Sale be entitled to deduct their remuneration, costs and expenses of acting as Trustees for Sale. [Subsequently vacated on 26 October 2015]

6.    That the Trustees for Sale have liberty to apply for directions in relation to the performance of their duties on 3 days’ notice.

7.    Costs are reserved.

8.    Liberty to apply on 3 days’ notice.

21    On 2 October 2015, Buchanan J made the following orders:

THE COURT ORDERS THAT:

1.    Order 11 made on 10 September 2013 be amended by the deletion of the word “Upon” and the insertion of the words “As soon as practicable following” in lieu thereof.

2.    The matter be listed for further directions at 9.30 am on 16 October 2015.

22    On 16 October 2015, Buchanan J made the following orders:

THE COURT ORDERS THAT:

1.    Ljiljana Coshott (and Robert Coshott if so advised) file and serve any further evidence and an outline of submissions in respect of the interlocutory application of Barry and Board on or before 27 October 2015.

2.    Barry and Board (and Prentice if so advised) file and serve any evidence in reply and an outline of submissions in respect thereof on or before 3 November 2015.

3.    The interlocutory application filed by Barry and Board be listed for hearing before Buchanan J at 10.15 am on 10 November 2015.

4.    The application for the relief sought in paragraphs 6, 7 and 8 of the interlocutory application filed on 8 July 2015 on behalf of the Trustees for Sale be listed for directions at 10.15 am on 10 November 2015.

5.    The Trustees for Sale would be justified in not taking any further steps to recover from Fewin Pty Ltd, their costs the subject of the orders of this Court made on 14 January 2015, being costs of and incidental to the interlocutory application filed by Fewin Pty Ltd on or about 17 December 2014 in these proceedings.

6.    A Registrar be appointed to determine the amounts to be paid to the Trustees for Sale pursuant to the orders of the Court made on 10 September 2013 and 19 September 2014, including:

(a)    in respect of the fees and disbursements (not including legal costs) payable to the Trustees for Sale pursuant to order 6 of the orders of the Court made on 10 September 2013 and substituted on 19 September 2014;

(b)    in respect of the legal costs of the Trustees for Sale (on a solicitor and own client basis) including pursuant to order 11.3 of the orders of 10 September 2013 and order 5 of the orders of the Court made on 19 September 2014.

7.    The proceedings be otherwise listed for directions at 10.15 am on 10 November 2015.

8.    The parties have liberty to apply on 3 days’ notice.

23    On 26 October 2015, Buchanan J made the following orders:

THE COURT ORDERS THAT:

1.    Order 11.5 (as amended on 19 September 2014), Order 11.6 as made on 10 September 2013 and Order 5 as made on 19 September 2014 all be vacated.

2.    From the proceeds of sale of the property, the Trustees for Sale be entitled to deduct their remuneration, costs and expenses of acting as Trustees for Sale.

3.    When reasonably practicable, the Trustees for Sale make interim and final distributions of the proceeds of sale to the cross-claimant and the second cross respondent, after taking account of any orders for the payment of money into Court, or the need to withhold money on account of any claim foreshadowed against the Trustees for Sale or on account of their further likely professional costs and disbursements.

4.    The cross-claimants’ professional and legal costs of the proceedings (including the costs of the former Trustee in Bankruptcy) be paid from the proceeds of the sale of the half interest in the property vested in the cross-claimant.

24    The final form of the orders made on the present topic of the recompense to which the Trustees for Sale were entitled was as follows, merging the relevant part of the original orders with the relevant amendments as demonstrated by the mark-up:

In respect of the application in this Court in NSD 1412 of 2009

THE COURT ORDERS THAT:

1.    The application filed in the Supreme Court of New South Wales on 24 June 2009, later transferred to this Court, is dismissed.

2.    The applicants in this Court are to pay the costs of the second respondent, as taxed, on an indemnity basis.

In respect of the further amended cross-claim in this Court in NSD 1412 of 2009

THE COURT DECLARES THAT:

3.    The property 1 Bunyula Road, Bellevue Hill being the whole of the land contained in Certificate of Title Folio Identifier 2/336490 (“the property”) was acquired by the second cross-respondent and the third cross-respondent beneficially as joint tenants.

4.    Upon the date of bankruptcy of the third cross-respondent, the joint tenancy between the second cross-respondent and the third cross-respondent in the property was severed and the ownership became:

4.1    the second cross-respondent as to an undivided one half share;

4.2    the cross-claimant as to an undivided one half share

as tenants in common.

5.    The half interest in the property registered to the third cross-respondent vested in the cross-claimant pursuant to sections 58, 115(1) and 116(1) of the Bankrupty Act 1966 (Cth), as and from the date of the commencement of the bankruptcy of the third cross-respondent.

THE COURT ORDERS THAT:

6.    The property vest in the cross-claimant as trustee for sale. That Shabnam Amirbeaggi and Nicholas Crouch both of Crouch Amirbeaggi, Suite 403, 55 Lime Street, King Street Wharf, Sydney NSW 2000 and both registered Trustees in Bankruptcy be appointed Trustees for Sale (“Trustees for Sale”) and they be entitled to charge their remuneration at the rate set out in the rates attached to their Consent filed in these proceedings. [Substituted 19 September 2014]

7.    The property be sold by the cross-claimant as trustee for sale Trustees for Sale [amended 19 September 2014], with all the obligations and privileges pertaining thereto (including signing for and on behalf of the second cross-respondent any contract for the sale of land and any transfer pursuant to the Real Property Act 1900 (NSW) and determining the price at which the property is to be sold) and the proceeds after payment of all expenses of and incidental to such sale to be divided equally between the cross-claimant and second cross-respondent, pursuant to order 11.

8.    For the purposes of giving effect to order 7, the second cross-respondent, by herself her servants and agents do all such things, acts and deeds and sign all documents to list for sale and sell the property, and for that purpose, including but not limited to the following:

8.1    maintain the property in a clean and presentable manner as required for the proper and effective marketing of the property;

8.2    allow and permit for an inspection of the property on 24 hours notice of a request made by the cross-claimant or agent for sale.

9.    Each cross-respondent deliver up vacant possession of the property 42 days from these orders.

10.    Pending the sale of the property and to the extent to which she is able, the second cross-respondent shall continue to meet one half of the outgoings (including electricity, gas, telephone and council rates) in respect of the property.

11.    Upon As soon as practicable following [amended 2 October 2015] completion of the sale of the property, the proceeds thereof be distributed in the following manner and priority:

11.1    Firstly, in discharge of any valid encumbrance over the title to the Property;

11.2    Secondly, in payment of agent’s commission, auctioneers and auction fees associated with the sale of the property;

11.3    Thirdly, expenses and reasonable legal costs and disbursements incurred upon the sale of the property;

11.4    Fourthly, in adjustment of council rates, water rates and other statutory imposts;

11.5    Fifthly, in payment of the cross-claimant’s professional and legal costs of the proceedings; [substituted to read as per the next paragraph 11.5 by orders 23 July 2014 and 19 September 2014]

11.5    Fifthly, and from the proceeds of the sale of the half interest in the property vested in the cross-claimant, in payment of the cross-claimant’s professional and legal costs of the proceedings; [Vacated 26 October 2015 and replaced by orders 2, 3 and 4 below]

11.6    Sixthly, and subject to orders above, the remains to be divided equally between the cross-claimant and the second cross-respondent subject to any charge or lien. [Vacated 26 October 2015 and replaced by orders 2, 3 and 4 below]

2.    From the proceeds of sale of the property, the Trustees for Sale be entitled to deduct their remuneration, costs and expenses of acting as Trustees for Sale.

3.    When reasonably practicable, the Trustees for Sale make interim and final distributions of the proceeds of sale to the cross-claimant and the second cross respondent, after taking account of any orders for the payment of money into Court, or the need to withhold money on account of any claim foreshadowed against the Trustees for Sale or on account of their further likely professional costs and disbursements.

4.    The cross-claimants’ professional and legal costs of the proceedings (including the costs of the former Trustee in Bankruptcy) be paid from the proceeds of the sale of the half-interest in the property vested in the cross-claimant.

12.    The cross-respondents are to pay the costs of the cross-claimant, as taxed, on an indemnity basis.

25    The orders for recompense of the Trustees for Sale and for the appointment of the Registrar to determine the amounts they should be paid, as in force at the time that the Registrar came to make that determination, were as follows in aid of considering the arguments of the parties below (emphasis added):

Order 6 made 10 September 2013, after being set aside by the Full Court and substituted by Buchanan J on 19 September 2014:

6.    That Shabnam Amirbeaggi and Nicholas Crouch both of Crouch Amirbeaggi, Suite 403, 55 Lime Street, King Street Wharf, Sydney NSW 2000 and both registered Trustees in Bankruptcy be appointed Trustees for Sale (“Trustees for Sale”) and they be entitled to charge their remuneration at the rate set out in the rates attached to their Consent filed in these proceedings.

Order 7 made 10 September 2013, after being varied on 19 September 2014:

7.    The property be sold by the Trustees for Sale, with all the obligations and privileges pertaining thereto (including signing for and on behalf of the second cross-respondent any contract for the sale of land and any transfer pursuant to the Real Property Act 1900 (NSW) and determining the price at which the property is to be sold) and the proceeds after payment of all expenses of and incidental to such sale to be divided equally between the cross-claimant and second cross-respondent, pursuant to order 11.

Order 6 made on 16 October 2015

6.    A Registrar be appointed to determine the amounts to be paid to the Trustees for Sale pursuant to the orders of the Court made on 10 September 2013 and 19 September 2014 [necessarily as varied since being made], including:

(a)    in respect of the fees and disbursements (not including legal costs) payable to the Trustees for Sale pursuant to order 6 of the orders of the Court made on 10 September 2013 and substituted on 19 September 2014;

(b)    in respect of the legal costs of the Trustees for Sale (on a solicitor and own client basis) including pursuant to order 11.3 of the orders of 10 September 2013 and order 5 of the orders of the Court made on 19 September 2014.

Orders 2, 3 and 4 made on 26 October 2015 in substitution for: order 11.5 originally made 10 September 2013 and varied on 23 July 2014 and 19 September 2014; and order 11.6 originally made on 10 September 2013

2.    From the proceeds of sale of the property, the Trustees for Sale be entitled to deduct their remuneration, costs and expenses of acting as Trustees for Sale.

3.    When reasonably practicable, the Trustees for Sale make interim and final distributions of the proceeds of sale to the cross-claimant and the second cross respondent, after taking account of any orders for the payment of money into Court, or the need to withhold money on account of any claim foreshadowed against the Trustees for Sale or on account of their further likely professional costs and disbursements.

4.    The cross-claimants’ professional and legal costs of the proceedings (including the costs of the former Trustee in Bankruptcy) be paid from the proceeds of the sale of the half interest in the property vested in the cross-claimant.

26    On 16 May 2016, after an oral hearing before the Registrar, during which evidence was read and submissions made orally and in writing on behalf of the Trustees for Sale, the Coshotts not participating, the Registrar made the following determination pursuant to his appointment:

THE REGISTRAR DETERMINES THAT:

1.    The amount to be paid to the Trustees for Sale pursuant to the orders of the Court made on 10 September 2013 and 19 September 2014 is $761,810.53 which is comprised as follows:

a.    $322,355.44 inclusive of GST in respect of the Trustees’ remuneration;

b.    $143,661.68 inclusive of GST in respect of disbursements (not including legal costs);

c.    $260,138.45 for professional fees payable to the Trustees’ solicitors; and

d.    $35,654.96 for disbursements incurred by the Trustees’ solicitors.

THE REGISTRAR NOTES:

2.    The amounts referred to in paragraph 1 include amounts for the Trustees’ remuneration, disbursements (other than legal costs), and legal costs which will be incurred after the date of this determination and which have been estimated as follows:

a.    $27,500.00 inclusive of GST in respect of the Trustees’ remuneration;

b.    $ nil amount in respect of disbursements (not including legal costs);

c.    $24,502.50 for professional fees payable to the Trustees’ solicitors; and

d.    $22,000.00 for disbursements incurred by the Trustees’ solicitors.

3.    The undertaking given to the Court by the Trustees for Sale that in the event the amounts actually incurred in respect of remuneration and disbursements, including legal costs, after the date of this determination is less than the amounts estimated in paragraph 2 above they will pay the difference between the amounts actually incurred and the amounts estimated in accordance with the orders of the Court of 10 September 2013.

27    The first point of interpretation taken by the Coshotts is that the orders made by Buchanan J on 16 October 2015 in relation to the appointment of the Registrar to determine the amounts to be paid to the Trustees for Sale pursuant to the orders made on 10 September 2013 and 19 September 2014 [as varied] needed to be read narrowly. Senior counsel for the Coshotts contended that the appointment did not include any referral to the Registrar in relation to any recompense for work done by the Trustees for Sale or on their behalf outside the ambit of executing the particular trust to which they had been appointed. It was submitted on behalf of the Coshotts that the referral was confined to determining the amounts to be paid to the Trustees for Sale in relation to selling the property, and not in respect of any other work or proceedings generally, nor for the taxation or assessment of any legal costs or disbursements of any applications or proceedings brought before this Court.

28    Counsel for the Trustees for Sale submitted that such a limited interpretation was not the correct way to read the orders made by Buchanan J on 16 October 2015 in relation to the appointment of the Registrar to determine the amounts to be paid to the Trustees for Sale pursuant to the orders made on 10 September 2013 and 19 September 2014 [as varied], particularly when regard is had to the chapeau of order 6 made on 16 October 2015, which refers to determination of the amounts to be paid and uses the non-exhaustive word “including” prior to the specific reference to fees, disbursements and legal costs. Counsel for the Trustees for Sale submitted that this interpretation is emphasised by the terms of the recompense order made on 19 September 2014 and varied on 26 October 2015, both of which refer to “remuneration, costs and expenses of acting as Trustees for Sale” (emphasis added). It was submitted that the words used in the orders as to recompense and as to the appointment of the Registrar are wide enough to encompass all ancillary matters and addressing all obstacles to carrying out the sale, and in fact extended to all aspects of work done in their capacity in acting as Trustees for Sale.

29    Secondly and alternatively, counsel for the Trustees for Sale argued that even if the appointment of the Registrar should be interpreted as constituting a referral limited in the way the Coshotts suggested, a judge of this Court is not so limited in the conduct of the de novo review.

30    Both of the arguments advanced by counsel for the Trustees for Sale were supported by a third public policy argument he advanced to the effect that not allowing for full and proper (and implicitly, reasonable) recompense for acting as a trustee would seriously undermine the efficacious exercise of the accepted jurisdiction to appoint trustees for sale in the first place, regularly exercised by judges of the Supreme Court of New South Wales and also to a more limited extent by judges of this Court in circumstances akin to the present. Such a finding at the level of either power, or of interpretation of the orders made, would make it difficult to find persons willing to act in such a role if they were at risk of not being paid properly and not being fully reimbursed as to the reasonable costs of doing so. This argument directly addresses both the reading down of the power exercised by Buchanan J to limit the scope of recompense that could be ordered to be paid as part of a statutory trust (discussed further below), and to limiting the effect of the orders that were in fact made.

31    I agree with all three arguments advanced on behalf of the Trustees for Sale (leaving the question of power for determination below in response to the second issue). As to interpretation of the orders that were made, informed by the policy arguments with which I agree, due weight must be given to the terms for recompense set out in the 19 September 2014 orders, and maintained in the 26 October 2015 variation, which are obviously and deliberately wider than the original orders made on 10 September 2013. Those orders should be read as encompassing the full, fair and reasonable “remuneration, costs and expenses of acting as trustees for sale”, not confined as urged by senior counsel for the Coshotts, which entails effectively reading into those orders words of limitation and restriction that were not in fact used so as to confine consideration of recompense to the act of sale itself. I therefore do not accept that the scope of the orders made by Buchanan J on 16 October 2015, as amended on 26 October 2015, should be read in the limited and impracticable way contended for on behalf of the Coshotts. That strained and illogical interpretation does not do justice to the breadth of the language used by Buchanan J, nor to his Honour’s obvious purpose and intent.

32    In case I am wrong about the above interpretation of the appointment orders made by Buchanan J, the practical effect of the review under s 35A(5) is that I am performing the function previously performed by the Registrar under delegation. In doing so I am constrained only by the ultimate power being exercised and not by the terms by which it was delegated to the Registrar. I do not consider myself to be limited by the language used in the orders by which that appointment took place. The review process operates as though the appointment had never taken place and the power is instead being exercised afresh by a judge.

33    The retention of such an unfettered power is an essential precondition to the constitutional validity of the delegation of such powers to non-judicial officers in the first place, as was explained in Harris v Caladine (1991) 172 CLR 84 at 95-6 and at 125.7. The Registrar is never more than a delegate, while the judge conducting a de novo review exercises original and not delegated power. Indeed, the very presence of an unfettered de novo review was plainly regarded by the High Court as an important indicator of constitutional validity, ensuring that litigants can avail themselves of judicial independence.

34    It follows that this issue must be determined adversely to the Coshotts. The terms of the recompense orders made by Buchanan J (which I do not see any need to vary in any way, even if I had power to do so) do not limit the amounts payable to the Trustees for Sale to those of and incidental to the sale process itself. Rather on a plain interpretation they extend to all activities which reasonably took place during their period of acting as Trustees for Sale in furtherance of the execution of the statutory trust to give practical effect to the sale ordered by this Court. The question of the ultimate scope and quantum of that entitlement to recovery was required to be the subject of the Registrar’s determination and thus of the de novo review itself, as detailed below in response to the third issue.

Limits on the jurisdiction or power to award recompense to the Trustees for Sale

35    This aspect of the Coshotts’ case essentially turns on an argument as to the limitation on the powers able to be exercised by this Court by surrogate federal law arrived at by the application of s 66G of the Conveyancing Act 1919 (NSW) in federal proceedings via s 79 (and perhaps s 80) of the Judiciary Act 1903 (Cth), following the Full Court decision referred to above which identified this as the correct pathway to the appointment of the Trustees for Sale.

36    The first and most obvious objection to this argument is that it is an attempt to attack collaterally the recompense orders made by Buchanan J, without the trouble or inconvenience of an appeal or even seeking leave to appeal, let alone having them set aside as would be required before they could be disregarded. It is an attempt to have a single judge of this Court exercise appellate jurisdiction by the back door. Orders made by this Court are not nullities even if invalid and are binding until set aside: Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 at 178 [23], 185-6 [53], 194-5 [88], 241 [232], 259 [284], 279 [344]. Further, once an interlocutory determination has been made which defines rights or interests, ordinarily that will be binding on the final trial and all subsequent processes, subject only to adjustment or further orders by the judge who made them or a successful appeal: Bass v Permanent Trustee Company Limited [1999] HCA 9; (1999) 198 CLR 334 at 359-60 [57].

37    Even if the orders made by Buchanan J were invalid, they stand and are binding unless and until set aside. For those reasons alone this argument on behalf of the Coshotts must fail. However for completeness and in case these issues fall for determination elsewhere, I should briefly state why I consider that the arguments are in any event without merit because the orders were within power and valid, so that the argument should also fail upon a legal basis.

38    The principal arguments advanced on behalf of the Coshotts were:

(1)    s 66G of the Conveyancing Act did not contain any express power to make orders for recompense of any kind in favour of a trustee for sale [not strictly speaking correct given the terms of s 66F(2)(a), but probably correct in relation to costs and expenses going beyond those of sale of the property and in relation to remuneration];

(2)    nor was any such power contained in the Trustee Act 1925 (NSW), which was usually the source of supplementary powers picked up by the Conveyancing Act concerning trustees when s 66G powers were exercised;

(3)    when the power under s 66G of the Conveyancing Act was exercised by a judge of the Supreme Court of New South Wales, any orders for recompense [at least going beyond costs and expenses of sale, and going to remuneration] were made pursuant to the inherent jurisdiction of that Court, giving rise to inherent powers of equivalent breadth; and

(4)    when s 66G of the Conveyancing Act was picked up and applied as surrogate federal law, the inherent jurisdiction and thus powers of the Supreme Court were not picked up, and accordingly a judge of this Court in making an order for the appointment of a trustee for sale had no power to make any orders for recompense.

39    During the course of argument, attention was drawn to s 23 of the Federal Court Act and the question posed from the bench as to why it was that, once this Court was seized of jurisdiction, including by way of surrogate federal law, that provision would not operate according to its terms to give a judge of this Court the necessary power in relation to such a matter by which jurisdiction was already bestowed, to make wider ranging recompense orders in order to make effective the surrogate federal law applied by the Judiciary Act. No satisfactory answer was given to that proposition. While such an incidental power is not to be lightly exercised, the jurisdiction bestowing such a power does not seem to be in doubt: Australian Securities and Investments Commission, Re Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 5) [2006] FCA 684; (2006) 58 ACSR 6 at 12 [19]-[20]; see also Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 616, 622 and 627. It is a complete answer to the notion that there was no power to make the wider recompense orders in favour of the Trustees for Sale that I have already found were made by Buchanan J, and a complete answer to the notion that the orders made by Buchanan J were in some way invalid by reason of being beyond power.

40    It follows that this issue must also be determined adversely to the Coshotts. There was no lack of power on the part of Buchanan J to make the recompense orders. Accordingly, both the Registrar in exercising delegated power, and a judge of this Court exercising such powers either in the first place, or upon review of the Registrar’s determination, is not in any way precluded from determining the outlays that should be paid either in concept or in quantum, provided they arose out of acting as the duly appointed Trustees for Sale, subject to the principles emerging from the authorities discussed below as to such matters as reasonableness, prudence, efficiency and proportionality.

De novo review of the Registrar’s determination

41    At the hearing of the Coshotts’ application, it was effectively suggested on their behalf that the determination by the Registrar be set aside by the de novo review process they initiated, but having activated that process, it should not be proceeded with to its conclusion. Rather, I was urged from the bar table to put in place a second delegated process of either determination or quantum assessment by way of taxation, effectively taking the process back to October 2015 when the appointment of a Registrar by Buchanan J to make this determination first took place, that date itself being the product of extensive delay. Although at a personal level that was an attractive option as I would not have to review the merits of the Registrar’s determination, I did not consider that should take place. Instead, I have approached this issue as follows.

42    Over three years have elapsed since the original orders of appointment were made. The property has been sold, certain distributions have been made from the proceeds and the balance is held awaiting determination of what recompense the Trustees for Sale should receive. The issues of appointment and the source of recompense for professional and legal costs of the prior legal proceedings have already been dealt with by the Full Court. There are no other outstanding appeals on that issue. It is not in the interests of justice that there should be further delay.

43    Nor is there any unfairness in proceeding to conclude the review process initiated by the Coshotts. They have had ample time to bring this review and to put such submissions and evidence as they wished in support. In addition to the timetable for evidence and submissions ordered by the Registrar that the Coshotts did not avail themselves of, a timetable was ordered in this Court on 1 June 2016 for evidence and submissions by 8 July 2016. On 26 July 2016, almost two months later, that timetable was extended until 9 August 2016 for evidence and 16 August 2016 for submissions, giving an aggregate of almost 11 weeks from the Coshotts’ filing of this application to furnish evidence, almost 12 weeks for submissions and more than one quarter of a year from the initial submissions timetable to the date of hearing.

44    In the result almost nothing of substance by way of evidence and only very limited submissions were advanced on behalf of the Coshotts in support of the substance of the review process they had sought. As a practical matter this left the process of de novo review to the onus falling on the Trustees for Sale to make good their claims upon the basis of the evidence that was before the Registrar and also placed before this Court.

45    Senior counsel for the Coshotts submitted that the Registrar failed to distinguish between work done in the execution of the particular trust for the sale of real property and other work, and failed to indicate whether or not any other moneys were more properly said to be the legal costs and disbursements of and incidental to collateral legal proceedings. In a factual sense that characterisation of what the Registrar did is accurate, in that the distinctions identified are not reflected in the determination that issued by the Registrar on 16 May 2016 which refer only to the final sums of money arrived at, broken down by broad category.

46    As noted above, the Coshotts did not appear on the date fixed well in advance for the hearing of the determination before the Registrar, and did not, as provided for, furnish any submissions or evidence. Nor was any attempt made before me to do much more. Instead global and general objections were taken, including as to an asserted shortfall in particulars as to what was claimed, essentially making it a matter of onus for the Trustees for Sale to prove their entitlement to payment. This was, on any view, a very high risk strategy. The Coshotts were ultimately well represented and must be taken to have considered this was the best approach to advance their interests in all the circumstances.

Evidence on the review

47    The Trustees for Sale relied upon a number of affidavits, to which objection was taken upon the ground that asserted issues as to the weight of the evidence without more made good a claim of unfair prejudice for the purposes of ss 135 and 136 of the Evidence Act 1995 (Cth). That argument was not accepted and that objection was therefore overruled. The affidavits of the following deponents were read for the Trustees for Sale:

(1)    Stephen Keith Mullette, solicitor for the Trustees for Sale, sworn 20 November 2015, setting out charge out rates at his firm for individuals who have worked on the matter, producing detailed time records for the periods 19 September 2014 to 30 June 2015 and 1 July 2015 to 16 October 2015 and summarising disbursements;

(2)    Stephen Keith Mullette, sworn 30 November 2015, proving service of the preceding affidavit and the affidavit of one of the Trustees for Sale upon the Coshotts, the substance of which is reflected in the next affidavit referred to, along with some updated disbursement figures;

(3)    Stephen Keith Mullette, sworn 26 April 2016, detailing legal work performed since his first affidavit, being from 16 October 2015 onwards and including:

(a)    Annexure “A”: a schedule of the issues to which remuneration expenses relate which identifies in considerable detail the various collateral matters that the Trustees for Sale had to deal with, cross-referenced to the time records;

(b)    Exhibit SKM1: detailed time records kept by the solicitors for the Trustees for Sale which have been cross-referenced to the entries in Annexure “A” to enable the different types of work done to be tracked, invoices for disbursements for the same tracking purpose, all of which relate to the legal costs incurred by the Trustees for Sale;

(c)    Exhibit SKM2: detailed time records kept by the Trustees for Sale of the work they had conducted, also cross-referenced to the entries in Annexure “A” to enable the different types of work done to be tracked and invoices for disbursements for the same tracking purpose, all of which relate to the remuneration sought by the Trustees for Sale;

(4)    Nicholas Crouch (one of the Trustees for Sale), sworn 6 September 2016, producing updated detailed time records and invoices for disbursements.

48    Both parties sought to rely on affidavits from asserted costs experts. Both affidavits failed to meet the requirements of s 79 of the Evidence Act as to identification and application of expertise. Both parties effectively conceded that they could not overcome these fundamental deficiencies. Both affidavits were rejected.

49    The Trustees for Sale also tendered the transcript of proceedings before Buchanan J on 16 October 2015, the transcript of the proceedings before the Registrar on 16 May 2016 and a distribution statement which set out the proceeds of sale of the property and how they had been thus far disbursed. I received the two exhibits provisionally into evidence and have now had an opportunity to consider them. The transcript before Buchanan J does not advance any fact or argument in issue and accordingly its provisional admission into evidence is not confirmed.

50    The transcript before the Registrar is relevant to the de novo review process and accordingly its provisional admission into evidence is confirmed. The distribution statement remains as a document marked for identification as an aide memoir and is not treated as evidence. There was no apparent dispute as to the fact of distributions being made, or their quantum, or the quantum of the sale proceeds and component received by the Trustees for Sale, being the figures relevant to the issue of proportionality.

51    Parts of the affidavit of the former solicitor for the Coshotts, Mr Bruce Hocking, were allowed to be read for the Coshotts, but in the end result that affidavit provided little assistance beyond recording the fact that more itemised bills and affidavits were sought from the Trustees for Sale and that he had been taken ill and was hospitalised not long before the hearing before the Registrar took place. Mr Hocking made no reference to the timetable for evidence and submissions leading up to that hearing. There was no evidence from either of the Coshotts on the topic of the hearing before the Registrar, nor on the topic of non-compliance with the timetable for evidence and submissions leading up to that hearing. A notice to produce addressed to the Trustees for Sale and seeking more information about the expenditure by them was not called upon before the Registrar and lapsed. I note that it was not renewed in this Court, despite the very lengthy period of time in which this could have taken place.

Submissions on the review

52    I was directed to a range of authorities by counsel for the Coshotts and the Trustees for Sale. Those authorities were directed to the nature of the primary assessment by delegation, but also as to the unfettered nature of the review by hearing de novo. Particular reference was made to, and I have read and considered the following authorities:

(1)    Australian Securities and Investments Commission v Letten (No 23) [2014] FCA 985 at [13]-[15] concerning the need for reasonableness and a proper basis for the incurring of the sums claimed – those specific paragraphs were considered as part of a successful appeal to the Full Court in the differently named Templeton v Australian Securities and Investments Commission [2015] FCAFC 137; (2015) 108 ACSR 545, but doubt was not cast on the correctness of those passages;

(2)    West International Pty Ltd v Ultradrilling Pty Ltd [2008] FCA 1443; (2008) 68 ACSR 108 at 109 [6] to the effect that the function of the Court on review of a registrar’s decision under s 35A(5) of the Federal Court Act is to rehear the case and decide the facts itself as a complete rehearing, and to be satisfied of the matters prescribed by that Act unfettered by the decision of the registrar, referring to further authority to that effect;

(3)    Doolan v Dare [2004] FCA 682; (2004) 2 ABC(NS) 16 at 28-9 [37]-[41] referring to the standards required of a trustee as a fiduciary and in particular the obligation to administer the estate the subject of the trust in the interests of the beneficiaries rather than in the interests of the trustee;

(4)    Mohamed v Hurstville Tower Medical Clinic Pty Ltd (in liq) [2006] NSWSC 4 and the statement of seven principles summarised therein from Ide v Ide [2004] NSWSC 751; (2004) 184 FLR 44, including in particular the somewhat sweeping statement at 49 [39] that the court constituted by a judge never considers a review of quantum but only matters of principle;

(5)    Wenkart v Pantzer [2005] FCA 1572; (2005) 223 ALR 384 and in particular at 393 [35] where Branson J said about the above comment in Ide v Ide:

One of the two authorities cited by his Honour in support of his above observation was Australian Coal and Shale. It is not necessary for me to reach a view on whether his Honour expressed the position too strongly. It is sufficient to note that it will rarely, if ever, be appropriate for the court to review a decision of a taxing officer on a line by line basis.

Her Honour’s decision was reversed on appeal by Pantzer v Wenkart [2006] FCAFC 140; (2006) 153 FCR 466, but this point of principle was not disturbed;

(6)    In the matter of Idyllic Solutions Pty Ltd as trustee for Super Save Superannuation Fund and others [2016] NSWSC 1292 at [26]-[49], especially [31]-[33] quoting from key authority on the proper approach to be taken on a review as to remuneration and taxation, in particular the need for the court to make an independent assessment even in the absence of objectors, appropriately detailed objections or arguable objections, having regard to some of the disadvantages associated with a time-based approach and the importance of proportionality.

53    In Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, referred to by Branson J above in Wenkart v Pantzer, Kitto J at 628 approved what had been said by Jordan CJ in Schweppes’ Ltd v Archer (1934) 34 SR (NSW) 178 at 183-184 in an appeal from a review of a decision of a taxing officer (omitting citations):

In appeals as to costs, the principles to be applied are these. The Court will always review a decision of a Taxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose of determining the principle which should be applied; and an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction to review the Taxing Officer’s decision even where an exercise of discretion only is involved, and will do so freely on a proper case, using its own knowledge of the circumstances … but it will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong; and where the question is one of amount only, will do so only in an extreme case.

54    In Australian Securities and Investments Commission v Letten (No 25) [2016] FCA 1127 (the decision on the de novo review process delivered in response to the successful appeal from Letten (No 23) in Templeton), the receivers’ claim for remuneration was not further reduced below a voluntary discount of 10%. It was observed at [15]:

The Full Court stated that the onus was on the Receivers to justify the reasonableness and prudence of the tasks undertaken. The Court is not obliged to make specific positive findings about the work necessary and appropriate to be done, the appropriate level of seniority and whether the work was done efficiently. The Court is entitled to take the practical course of looking at the matter more generally in assessing reasonableness and then applying, if thought necessary, any appropriate discounts. The Court observed at [60] that it is neither sensible nor cost effective for the Court, on reviewing the remuneration claimed, to proceed by some line by line analysis using some building blocks or bottom up approach to build up an amount which the Court then determines to be reasonable remuneration based upon detailed findings concerning those matters. The Full Court held at [60] that it was appropriate to take a broad approach and appropriately discount, without making any specific findings. The Full Court was critical of the primary judge for applying an overall discount without identifying the effect that specific issues had on the overall outcome.

55    The appeal passage referred to from Templeton at 559 [60] was as follows:

The onus was on the receivers to justify the reasonableness and prudence of the tasks undertaken: see Ide v Ide (2004) 50 ACSR 324; [2004] NSWSC 751 at [42] per Young CJ in Equity, Onefone Australia Pty Ltd v One.Tel Ltd (2010) 80 ACSR 11; [2010] NSWSC 1120 at [24] and [28] per Barrett J and Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96 at 102 and 103 per Kennedy and Ipp JJ. If there was a lack of detail in the material provided by the receivers, that would not have enabled her Honour to make such findings. In those circumstances, it was an appropriate approach to take the broader claim and appropriately discount, without making specific findings. But even assuming that there was sufficiently detailed material before her Honour, we do not agree that her Honour in any event needed to drill down and make detailed findings on such matters. Her Honour was entitled to take the practical course of looking at the matter more generally in assessing reasonableness and then applying, if thought necessary, any appropriate discounts. Where we differ with respect from her Honour is in the assessment and justification of the appropriate discounts, not in her overall approach to start with the receivers’ claims and then to apply appropriate and justified discounts. It is neither sensible nor cost effective for the court, on reviewing the remuneration claimed, to proceed by some line by line analysis using some building blocks or bottom up approach to build up an amount which the court then determines to be reasonable remuneration based upon detailed findings concerning the matters set out in (a)–(c) of the preceding paragraph.

56    The abovementioned authorities make it clear that there has been a long-standing and understandable reluctance on the part of judges to engage in a process of or akin to a full taxation or equivalent, especially when, as in this case, the Registrar is well-used to carrying out this task in considerable detail, building on a wealth of judgment and experience that most, if not all, judges will ordinarily lack. What is called for is judicial oversight and supervision to ensure that the delegation of judicial functions is being carried out properly, not duplication, or relegating a judge to the role of a line-by-line taxing officer, especially when there is nothing concrete put forward by a well-represented party opposing the determination that has been made to suggest error as opposed to the scope for mere differences of opinion and value judgment.

57    While the absence of objection does not absolve a judge from carrying out the review process with a careful eye, the absence of objection even to the type of work done must be relevant in concluding that there was nothing inherently wrong with any of those tasks being carried out as part of the trust work. It is not helpful for a party challenging the quantum awarded by a Registrar to do no more than complain at a high level of generality about the amounts involved being too much, and to complain about the asserted shortage of detail when steps that could have been taken have not. That is especially so when it is very clear from the evidence referred to below that the Trustees for Sale faced many hurdles in finally selling the property, all of which appeared to be directly and relevantly connected to executing the trust.

Consideration on the de novo review

58    The submissions made by senior counsel for the Coshotts rejected the proposition that the opportunity for a line-by-line consideration by the Registrar had been missed by reason of his clients’ non-participation at that stage. It was effectively submitted that it was legitimate now to insist upon a second referral so that the Coshotts would have an opportunity to participate a second time around, if they chose to do so. It was suggested that because it was not feasible for a judge to carry out a line-by-line examination of the moneys expended, there was no practical alternative but to make a second referral. The suggestion was made that someone with greater expertise than a Registrar was required because of the complexity of matters apart from the sale that had taken place.

59    Nothing was said to indicate what more the Coshotts might contribute to this process a second time around beyond general references of an opportunity to be heard in some way, without any evidence from them as to why they did not participate in the first place, which could and most likely would have been tested. There was nothing in evidence to indicate what precisely or even generally the Coshotts would do in the way of further objections or contribution. If the end result was simply going to be to make the Trustees for Sale go through substantially the same process again, but with the dominant impact being delay, then that is not a process of any value or merit. To approach the problem created by their prior non-participation in this way is effectively to sanction, or worse encourage, that non-participation at the appropriate stage, being before the Registrar, and effectively to sanction the further delay caused by nothing other than that non-participation. I therefore reject the submissions seeking a second referral.

60    In the alternative, it was suggested by senior counsel for the Coshotts that I could take the line-by-line approach, although that was not urged as the primary submission was to seek a further referral. Upon the basis of the authorities referred to above, I reject that alternative approach as well.

61    That leaves only the approach most recently described in this Court in Templeton and in the remittal that resulted in Letten (No 25). To put the matter beyond any doubt, I am treating the orders for recompense of the Trustees for Sale made by Buchanan J on 19 September 2014, as amended on 26 October 2015, as extending to all of the payments and liabilities for payment incurred by the Trustees for Sale properly and reasonably paid or incurred in the course of the execution of the statutory trust to which they were appointed, subject only to the process of determination of the proper quantum of that recompense. That is, I read the words used by his Honour literally to mean what they say, namely, that the Trustees for Sale are entitled to “their remuneration, costs and expenses of acting as Trustees for Sale”. Those words are easily wide enough to encompass all reasonable steps taken while acting as Trustees for Sale in furtherance of the trust to give effect to the orders for the sale of the property, including dealing with all of the hurdles that so clearly were placed in their way, as indicated in the scope of work required to be carried out in Annexure “A” to Mr Mullette’s affidavit of 26 April 2016. That approach ensures that the objective of the statutory trust, the sale and realisation of the proceeds of sale of the property was given “practical effect”: Pantzer v Wenkart [2006] FCAFC 140; (2006) 153 FCR 466 at 477 [44].

62    As to quantum, I have carefully read each of the affidavits relied upon by the Trustees for Sale. I have perused the time costing records and examined more closely a substantial sample of those entries. I have compared the time costing records with Annexure “A” referred to above and satisfied myself that the various types of work referred to have indeed been carried out. I have also read the transcript of the proceedings before the Registrar and been able to satisfy myself that he did go through a process of analysis and careful consideration, although not line-by-line and not informed by any objections as to any particular items of expenditure or work done. Following my examination, I am satisfied that it cannot be said that the discretion reposed in the Registrar by his appointment has not been exercised, or that any error in the approach taken is apparent. There is nothing to indicate that, given the scope of the orders made for recompense, including the collateral orders approving the rates of remuneration, the approach taken by the Registrar was wrong, let alone manifestly so. In my view, considering all of the evidence as a whole and having regard to the quality of the record-keeping, the Trustees for Sale have properly discharged their onus of justifying the reasonableness and prudence of the tasks they have undertaken, with apparent due regard to the seniority of the person performing the work. There is nothing that I can see that indicates any signs of inefficiency or impropriety.

63    The distribution statement reveals that in November 2015 (I was informed from the bar table, 2 November 2015) a first distribution of $1,238,000 took place, made up of $619,000 to each of the Coshotts. I was informed from the bar table that a second distribution took place on 30 March 2016 of $639,992. The combination of the two distributions was therefore $1,877,992 out of gross sale proceeds of $3,775,000, of which the amount that came to the Trustees for Sale was $3,382,619. The gross amount in the Registrar’s determination of $761,810.53 is, on any view, a substantial proportion of the sums received by the Trustees for Sale (some 22.5%), but not inherently disproportionate when regard is had to the many fronts upon which the Trustees for Sale have needed to apply their energies. I am unable to see that the amount alone, in the context of what was done, and in the context of the clear and detailed records kept, gave rise to any sound basis for proportionality concerns. That is especially so when no submission was made on behalf of the Coshotts which demonstrated that any of the steps taken were inappropriate or unreasonable or conducted in an inappropriate or unreasonable fashion.

64    In those circumstances, I do not consider that it is necessary or appropriate to carry out a more detailed review of the records before me that I have already described. The approach approved in Templeton has been sufficient for me to form the requisite state of mind in conducting a de novo review of the Registrar’s determination.

65    In all circumstances, I am unable to see any proper basis for disturbing the determination made by the Registrar.

Conclusion

66    The interlocutory application brought by the Coshotts must be dismissed with costs. The determination made by the Registrar is confirmed, subject to any updating required as to the amounts involved. I will hear from the parties in that regard and in relation to any particular orders that should be made in relation to the payment of the costs of this application.

Associate:

Dated:    21 December 2016

SCHEDULE OF PARTIES