Baker v David

Case [2015] NSWCA 235


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Baker v David [2015] NSWCA 235
Hearing dates:3 July 2015
Decision date: 18 August 2015
Before: McColl JA at [1];
Meagher JA at [2];
Sackville AJA at [33]
Decision:

1.   Appeal allowed.
2.   Set aside the orders made on 1 April 2015 and entered on 2 April 2015.
3.   Remit the proceedings to the Equity Division to be dealt with in the Real Property List.
4.   The matter proceed by way of pleadings.
5.   The plaintiff (respondent) file and serve a statement of claim which joins all necessary parties within 21 days.
6.   The defendant (appellant) file and serve his defence and any cross-claim within a further 21 days.
7.   The proceedings be listed for further directions before the Real Property List Judge, as arranged with his or her Associate.
8.    Costs of the proceedings before the primary judge be costs in the proceedings.
9.   Each party bear his own costs of the appeal.
10.   Grant leave to Mr Crowe-Maxwell and Mr White to apply in the proceedings as remitted to the Equity Division for payment of fees and expenses incurred in acting as Court appointed trustees.

Catchwords: EQUITY – appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) – whether order appointing trustees would be inconsistent with a contractual right to exclusive possession – whether primary judge addressed arguments made as to enforceability and construction of contract contended for
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Conveyancing Act 1919 (NSW), s 66G
Supreme Court Act 1970 (NSW), s 63
Uniform Civil Procedure Rules 2005, rr 51.53(1), 6.24
Cases Cited: Gordon v Ross [2006] NSWCA 157
Hunter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598
Williams v Legg (1993) 29 NSWLR 687
Category:Principal judgment
Parties: Geoffrey Charles Baker (Appellant)
Bernard David (Respondent)
Representation:

Counsel:
A Rogers and G Farland (Appellant)
J B Whittle SC and D Neggo (Respondent)

  Solicitors:
Brennan Tipple Partners (Appellant)
Macpherson & Kelley Lawyers (Sydney) Pty Ltd (Respondent)
File Number(s):2015/124176
Publication restriction:Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of NSW
Jurisdiction:
Equity
Citation:
[2015] NSWSC 393
Date of Decision:
25 March 2015
Before:
Young AJA
File Number(s):
2014/00279597

Judgment

  1. McCOLL JA: I agree with Meagher JA.

  2. MEAGHER JA: The appellant (Mr Baker) and the respondent (Mr David) are registered owners as joint tenants of a property in Whiting Avenue, Terrigal. The respondent sought an order under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the property. That application was heard by the primary judge (Young AJA) on 25 March 2015. By his judgment delivered on that day, the primary judge made an order appointing Mr Crowe-Maxwell and Mr White trustees for sale; an order vesting the property in…

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Details
AGLC
Baker v David [2015] NSWCA 235
Case
[2015] NSWCA 235
Decision Date

CaseChat Overview and Summary

The appeal concerned an application for the appointment of trustees for sale under section 66G of the *Conveyancing Act 1919* (NSW). The dispute arose between the parties regarding their respective rights and interests in a property, with the appellant arguing that an order appointing trustees for sale would be inconsistent with a contractual right to exclusive possession. The matter was heard by McColl and Meagher JJA and Sackville AJA.

The primary legal issues before the court were whether the primary judge had adequately addressed the arguments concerning the enforceability and construction of the contract relied upon by the appellant, and whether the appointment of trustees for sale would be inconsistent with the appellant's asserted contractual right to exclusive possession.

The Court of Appeal allowed the appeal, setting aside the orders made by the primary judge. Their Honours reasoned that the primary judge had failed to properly consider the contractual arguments raised by the appellant. The Court held that the question of whether the contractual right to exclusive possession was enforceable and how it should be construed were critical to determining whether the appointment of trustees for sale was appropriate. Consequently, the proceedings were remitted to the Equity Division for determination by way of pleadings, with directions for the filing of a statement of claim and defence, and for further directions before the Real Property List Judge. The costs of the proceedings before the primary judge were made costs in the proceedings, and each party was ordered to bear their own costs of the appeal. Leave was granted for the court-appointed trustees to apply for payment of their fees and expenses.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders made on 1 April 2015 and entered on 2 April 2015.

3. Remit the proceedings to the Equity Division to be dealt with in the Real Property List.

4. The matter proceed by way of pleadings.

5. The plaintiff (respondent) file and serve a statement of claim which joins all necessary parties within 21 days.

6. The defendant (appellant) file and serve his defence and any cross-claim within a further 21 days.

7. The proceedings be listed for further directions before the Real Property List Judge, as arranged with his or her Associate.

8. Costs of the proceedings before the primary judge be costs in the proceedings.

9. Each party bear his own costs of the appeal.

10. Grant leave to Mr Crowe-Maxwell and Mr White to apply in the proceedings as remitted to the Equity Division for payment of fees and expenses incurred in acting as Court appointed trustees.

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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