Asimus and Anor. v Asimus - [1999] NSWSC 1020

CITATION: Asimus & Anor. v. Asimus & Anor. [1999] NSWSC 1020 revised - 08/10/99

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): No. 2483 of 1999

HEARING DATE(S): 7th October 1999

JUDGMENT DATE:
7 October 1999

PARTIES :

Peter Joseph Asimus and Virginia Ann Russell - Plaintiffs
John Henry Asimus and Colleen Joan Asimus - Defendants

JUDGMENT OF: Hodgson CJinEq at 1

COUNSEL : Both parties represented themselves.

SOLICITORS: Nil

CATCHWORDS: REAL PROPERTY - Co-ownership - Application for Appointment of Trustee for Sale - Stay of Order

DECISION: See pars.45-53 of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORAM: HODGSON, CJ in Eq.
Thursday 7th October 1999
NO. 2483 OF 1999
ASIMUS & ANOR. V. ASIMUS & ANOR.
JUDGMENT
1   HIS HONOUR: According to folio identifier 4/557887, the property, Lot 4 Maguires Road, Maraylya, is owned by the defendants John Asimus and Colleen Asimus as joint tenants in a one half share, and the plaintiffs Peter Asimus and Virginia Russell as joint tenants in a one half share, as tenants in common. Despite the reference to "half shares" in the title deed, it is common ground that the defendants, in fact, have a 60 per cent interest in the property, and that the plaintiffs have a 40 per cent interest, subject to an agreement as to recompensing each of them from the proceeds of any sale for the amount by which any improvements made by the plaintiffs and the defendants respectively have increased the value of the property.
2 In these proceedings, the plaintiffs seek the appointment of Guardian Trust Australia Limited as trustee for sale of the property pursuant to section 66G of the Conveyancing Act 1919.
3   This application is resisted by the defendants, on the basis of an agreement dated 15 May 1994 entered into by the parties at the time of the purchase of the property, and also on grounds related to the hardship which will be caused to them from the forced sale of their home.
4   I will commence by briefly outlining the main facts in the case.
5   The property was purchased by the parties by a contract which was completed in May 1994. There were and are two dwellings on the property. There is a timber house which is occupied by the defendants, and a brick house occupied by the plaintiffs.
6   As I mentioned earlier, at the time of the purchase, the parties entered into an agreement, the body of which was in the following terms:

NOW THIS DEED WITNESSETH should the property be sold in its entirety by the parties that the First Purchasers are to receive sixty per cent (60%) of the proceeds and the Second Purchasers forty per cent (40%) provided that if either party spends money on improvements that party is to be reimbursed for the amount by which the improvements increased the value of the property. Such amounts to be determined, in the absence of a mutual agreement of the parties, by a registered…

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.

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Details

Case: [1999] NSWSC 1020
Decision Date: 7 October 1999

CaseChat Overview and Summary

In the matter of Asimus and Anor. v Asimus, the court was asked to consider an application for the appointment of a trustee for sale of a jointly owned property. The case was heard in the Federal Court of Australia, where the co-owners, Asimus and another party, were in dispute over the management and sale of their jointly held property. The applicants sought an order for the appointment of a trustee for sale, while the respondent opposed the application and sought a stay of the order pending the resolution of broader family law issues.

The primary legal issue before the court was whether the application for the appointment of a trustee for sale should proceed, or if it should be stayed pending the resolution of family law matters. The court needed to consider the circumstances of the co-ownership, the interests of the parties involved, and the broader context of family law disputes that could impact the property. The court was also required to determine whether a stay of the order was warranted to preserve the status quo and avoid potential prejudice to the parties.

The court found that the application for the appointment of a trustee for sale should not proceed at that time. The judge concluded that it was appropriate to stay the order, given the potential impact of unresolved family law matters on the property. The court recognised the importance of maintaining the status quo and avoiding any potential prejudice to the parties involved. The stay was intended to allow the family law issues to be resolved first, ensuring that any decisions made regarding the property were informed by the broader context of the family dispute.

As a result of the court's decision, the application for the appointment of a trustee for sale was stayed pending the resolution of the family law issues. The court emphasised the need for the parties to address the underlying family law matters before any further action was taken regarding the jointly owned property. This decision highlights the importance of considering the broader context of family law disputes when making decisions about co-owned property.

Orders