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 853Category: Procedural and other rulings Parties: In 2012/396544 proceedings:
Plaintiff: John Angius
Plaintiff: Giovanni (John) Angius
First Defendant: Gordon A. Salier AM
First Defendant: Gordon A. Salier AM as the Executor of the Estate of the late Laura Angius Salier
Second Defendant: Robert AngiusRepresentation: Counsel:
Plaintiff: D. Cook SC
Second Defendant: V. CulkoffSolicitor:
First Defendant: C. Birtles, Teece, Hodgson & Ward solicitors
File Number(s): 2012/396544; Publication restriction: No
Judgment
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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.
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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.
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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
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- AGLC
- Angius v Salier; Angius v Angius [2017] NSWSC 198
- Case
- [2017] NSWSC 198
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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