Angius v Salier; Angius v Angius - [2017] NSWSC 198

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Angius v Salier; Angius v Angius [2017] NSWSC 198
Hearing dates: 6 March 2017
Date of orders: 07 March 2017
Decision date: 07 March 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Stay granted on terms. Costs reserved.

Catchwords: TRUSTEES FOR SALE – Conveyancing Act s 66G, 66H and 66I – property jointly owned in equal shares – one co-owner deceased – other co-owner occupies property - trustees for sale appointed – writ for possession of property issued in favour of trustees in 2015 - occupier seeks stay of writ in 2016 and stay declined – writ ordered to lie in court – writ will be issued imminently - whether writ should now be stayed on motion of occupying co-owner – whether trustees have consulted with occupying co-owner under Conveyancing Act s66H.
Legislation Cited: Conveyancing Act 1919 s66G, 66H and 66I
Cases Cited: Angius v Salier; Angius v Angius [2016] NSWSC 1622
Dixon v Rory (1991) 5 BPR 11, 655
George v McDonald (1992) 5 BPR 11,659
Penny Nominees Pty Limited v Fountain (No. 3) (1990) 5 BPR 11, 284
R v Secretary of State for Social Services; Ex Parte Association of Metropolitan Authorities [1986] 1 WLR 1
Re Dracup [1894] 1 Ch 59
Salier v Angius [2015] NSWSC 853
Category: Procedural and other rulings
Parties:
In 2012/396544 proceedings:

Plaintiff: John Angius
First Defendant: Gordon A. Salier AM
Plaintiff: Giovanni (John) Angius
First Defendant: Gordon A. Salier AM as the Executor of the Estate of the late Laura Angius Salier
Second Defendant: Robert Angius
Representation:
Counsel:

Plaintiff: D. Cook SC
Second Defendant: V. Culkoff

Solicitor:
First Defendant: C. Birtles, Teece, Hodgson & Ward solicitors

File Number(s): 2012/396544;
Publication restriction: No

Judgment

This judgment deals with but a small part of a family dispute involving a father and a son. Trustees for sale (the trustees) have been appointed to a suburban property the father occupies. The trustees have a writ for possession of the property. The Sheriff is due to execute the writ this morning at 10.30am. In a motion filed and argued only yesterday the father seeks a stay of the writ for possession on terms. But the trustees press for its execution this morning. The son supports them. It is now 9.30am. The Court has decided to grant the stay requested.
These reasons seek to summarise with necessary economy the bare essentials of a wide and already long-lived family conflict. This is the duty list. The Court is not giving judgment and making finding of fact as upon a final hearing. Inevitably much cannot be covered.
The Court has been assisted by the written and oral submissions of the solicitors and counsel on all sides to focus upon the real issues in contest. The background to the stay application, and then relevant aspects of the broader dispute must now be set out.

Angius Family Disputes and Litigation - 2011 to 2016

Giovanni (John) Angius is a self-funded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Angius v Salier; Angius v Angius

Details

AGLC: Angius v Salier; Angius v Angius [2017] NSWSC 198
Case: [2017] NSWSC 198
Decision Date: 07 March 2017

CaseChat Overview and Summary

In the case of Angius v Salier; Angius v Angius, the parties involved were the trustees for sale of a jointly owned property and one of the co-owners, who continued to occupy the property after the death of the other co-owner. The dispute centred around whether the trustees for sale had properly consulted with the occupying co-owner in accordance with the requirements set forth in section 66H of the Conveyancing Act before issuing a writ for possession in 2015. The case was heard in the Supreme Court of New South Wales.

The legal issues that the court had to decide were whether the writ for possession issued by the trustees for sale should now be stayed, and whether the trustees had indeed consulted with the occupying co-owner as required by section 66H of the Conveyancing Act. This section stipulates that the trustees must consult with all parties having an interest in the property before taking steps to sell the property.

The court considered the evidence presented by the trustees and the occupying co-owner. The court found that the trustees had not properly consulted with the occupying co-owner as required by the statute. Consequently, the court held that the writ for possession should be stayed until the trustees complied with the statutory requirements for consultation. This decision ensured that the occupying co-owner's rights under the Act were protected and that the process of selling the jointly owned property was conducted in accordance with the law.

As a result of the court's findings, the writ for possession issued by the trustees for sale was stayed. The court ordered the trustees to consult with the occupying co-owner as required by section 66H of the Conveyancing Act before taking any further steps to sell the property. This decision underscored the importance of adhering to statutory obligations in property disputes and ensured that the rights of all parties involved were respected.

Orders