Alexandra Uzelac bht New South Wales Trustee and Guardian v Stevo Ilic
[2011] NSWSC 511
•05 April 2011
Supreme Court
New South Wales
Medium Neutral Citation: Alexandra Uzelac bht New South Wales Trustee and Guardian v Stevo Ilic [2011] NSWSC 511 Hearing dates: 30 March and 5 April 2011 Decision date: 05 April 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Section 66G order appointing trustees for sale.
Catchwords: REAL PROPERTY - Application by co-owner for appointment of trustees to hold property on statutory trust for sale - prima facie entitlement to order - court will generally only exercise discretion to decline to make order where co-owner can establish right in contract or equity - discretion also exercisable where proceedings for alteration of property interests may result in one co-owner becoming sole owner - if such an order made unlikely defendant would become sole owner - no reason to decline order to which plaintiff prima facie entitled. Legislation Cited: (NSW) Conveyancing Act 1919, s 66G.
(CTH) Family Law Act 1975.
(NSW) Property Relationships Act 1984.Category: Principal judgment Parties: Alexandra Uzelac (plaintiff)
New South Wales Trustee and Guardian (plaintiff's tutor)
Stevo Ilic (defendant)Representation: Counsel:
Ms V Williams (plaintiff)
Mr Stevo Ilic (in person)
Solicitors:
Moss Krouk and Associates (plaintiff)
File Number(s): 2010/403105
Judgment ( ex tempore )
HIS HONOUR: By a summons filed on 3 December 2010 the plaintiff Ms Alexandra Uzelac, by her tutor, the New South Wales Trustee and Guardian, applies for the appointment, pursuant to the (NSW) Conveyancing Act 1919, s 66G, for trustees for sale of a property at Seven Hills which is held by her and the defendant, Mr Stevo Ilic as tenants-in-common, in proportions 82% as to Ms Uzelac and 18% as to Mr Ilic.
The plaintiff has tendered consents of two trustees - pursuant to the requirements of Conveyancing Act s 66G(3)(a) - the fitness and propriety of whom are established by affidavit evidence, and has therefore satisfied all the formal requirements for an order.
The defendant is unrepresented, although he had some legal advice at an earlier stage in the proceedings. His English is not fluent, and he has been assisted before the court today by an interpreter. It is clear that he opposes the appointment of trustees for sale. In essence, at the heart of his opposition seems to be the proposition that a sale would leave him without a home, in circumstances where he and the defendant had acquired it together as a home for both of them - presumably with the intention that they would remain there indefinitely - and that although his initial capital contribution might have been only $10,000, he also contributed, from compensation moneys received by him, to the household outgoings and to mortgage repayments.
In proceedings before the Guardianship Tribunal, although there was a suggestion by one of the witnesses that there was a de facto relationship, the overall flavour of the evidence and findings was that the defendant was the plaintiff's friend and carer. Although he says that their relationship was never a de facto relationship, he maintains contact with the plaintiff, who suffers from dementia and is in a nursing home, visiting her typically on a weekly basis. On the very scant evidence that is before this court, it would seem probable that there was at least a "close personal relationship" between them, within the meaning of the (NSW) Property (Relationships) Act 1984, s 5.
It is well established that the circumstances in which the court will decline to make an order appointing trustees for sale under s 66G, once a prima facie entitlement arising from co-ownership is established, are very limited. In essence, the law is that, while there is a discretion to decline to make an order, that will be exercised only where the co-owner opposing a sale can establish a right, under contract or in equity, inconsistent with a sale. Further, as a matter of discretion, if there were pending or contemplated proceedings for alteration of property interests under the (CTH) Family Law Act (1975) or the (NSW) Property (Relationships) Act , and it was conceivable that the result of those proceedings might be that one party would become the sole owner of the property, or would be in a position to buy out the other, then the court might decline, at least for the time being, to appoint trustees for sale.
In this case, particularly given that the defendant is unrepresented, I have endeavoured to ascertain, by enquiry of the parties, some additional facts to enable me to evaluate those possibilities. Notwithstanding the sparsity of the evidence, it seems to me that Mr Ilic might well have a claim for a share in the property greater than his legal 18% share. On the other hand, given the disparate initial contributions of the parties, I think it is inconceivable that he could obtain a majority interest, and his own financial position appears to be such that there is no reasonable prospect that he would ever be able to buy out the plaintiff's interest.
While the plaintiff is in receipt of a pension which covers her bare nursing home expenses and medical and pharmaceuticals, it is no doubt desirable that additional funds be available for her care.
This is a very sad case, but ultimately it seems to me that, even if an adjustive property order were made in Mr Ilic's favour, a sale of the property would be inevitable. There is, therefore, no sufficient reason to decline to make the order to which the plaintiff is, prima facie , entitled. However, I will provide that the trustees not distribute any proceeds of sale without further application to the court, in order to permit Mr Ilic, if he wishes, to make an application in respect of them. While the ordinary jurisdiction for such an application might be in another court, as this court is seized of the matter, it might be dealt with expeditiously in these proceedings, in the court's cross-vested jurisdiction.
Pursuant to Conveyancing Act , s 66G, I order that David Anthony Hirst of Armstrong Wiley, Chartered Accountants, level x, xx xxxxxxx xxxxx, Sydney and Nicholas Crouch of Crouch Amerbeaggi Insolvency, Chartered Accountants, Suite xxx, xx xxxx xxxxx, Sydney, be appointed trustees of the land comprised in folio identifier xx/xxxxx situate at and known as x xxxxx xxxx, Seven Hills in the State of New South Wales.
I order that the said land be vested in such trustees subject to any encumbrances affecting the entirety thereof but free from any encumbrances affecting any undivided share or shares therein, to be held by the said trustees upon the statutory trust for sale under Division 6 of Part 4 of the Conveyancing Act .
I order that either of the parties be at liberty to purchase the said land whether at auction or by private treaty.
I order that any sale by the trustees may be made to either of the parties, either as a result of sale by auction or by private treaty without the requirement for the payment of a deposit and upon such terms as to payment of the balance of the purchase price as to the trustees may appear appropriate.
I order that upon sale of the land, the trustees pay from the proceeds the agent's commission and other costs of sale, the legal expenses of the trustees in respect of the sale, the legal expenses of transferring the property to the purchaser and the plaintiff's costs of these proceedings, and retain the balance pending the further advice or determination of the court.
I reserve liberty to the parties and to the trustees to apply.
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Decision last updated: 31 May 2011
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