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Barel v Segal (No 2)

Barel v Segal (No 2)

Case [2012] NSWSC 1054 21 September 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Barel v Segal (No 2) [2012] NSWSC 1054
Hearing dates: 3 and 4 September 2012
Decision date: 21 September 2012
Jurisdiction: Equity Division - Expedition List
Before: Pembroke J
Decision:
See paragraph [57]

Catchwords: CONVEYANCING - Conveyancing Act 1919, Section 66G(4) - "more beneficial" - not solely referable to comparative economic benefit
CONVEYANCING - Conveyancing Act 1919, Section 66G(4) - exercise of discretion - planning issues capable of being resolved under process set out in Section 66G(5) do not prevent order under Section 66G(4)
CONVEYANCING - Conveyancing Act 1919, Section 66F(3) - "equality money" - meaning and purpose - no application to facts
CONVEYANCING - co-owners of property - "occupation fee" - meaning and purpose - only available where one co-owner is in sole occupation
CONVEYANCING - Conveyancing Act 1919, Section 66G(3) - at least two individual trustees required for statutory trust for partition
PRACTICE AND PROCEDURE - adoption of referee's report - approach to be determined according to nature and circumstances of the case - appropriate to correct clear mistakes - whether evidence before referee supported finding made
COSTS - Civil Procedure Act, 2005, Section 98(4) - appropriate case for making gross and fixed sum costs order - factors relevant
Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Interpretation Act 1987
Strata Schemes (Freehold Development) Act 1973
Cases Cited: Barel v Segal (No 1) [2011] NSWSC 1181
Bellevard Constructions Pty Ltd v Energy Pty Ltd [2008] NSWCA 228
Built Environs Pty Ltd v Saunders International Ltd [2012] SASC 111
Chatterton v Chatterton (1989) 52 SASR 337
Chocolate Factory Apartments Limited v Westpoint Finance Pty Ltd [2005] NSWSC 784
Cordon Investments v Lesdor Properties Pty Ltd [2012] NSWCA 184
Croghan v Grosvenor (1991) 57 SASR 454
Dunston v Dunston (unreported, New South Wales Supreme Court, Cohen M, 14 September 1983)
Forgeard v Shanahan (1994) 35 NSWLR 206
Ireland v Retallack (No 2) [2011] NSWSC 1096
Luke v Luke (1936) 36 SR (NSW) 310
Ryan v Dries [2002] NSWCA 3
McCormick v McCormick [1921] NZLR 384
McMahon v Public Curator (Qld) [1952] St R Qd 197
Shannon v North East Wiradjuri Co Ltd (No 3) [2012] FAC 106
T S Swaminatha v Official Receiver [1957] 44 AIR (SC) 577
Wenco Industrial Pty Ltd v WW Industries [2009] VSCA 191
Texts Cited: Story, Equity Jurisprudence (14th ed, 1918)
Butt, Land Law (6th ed, 2010)
Category: Principal judgment
Parties: Elie Barel - plaintiff
Phillip Segal - defendant
Representation: Counsel:
J Van Aalst - for the plaintiff
G Waugh - for the defendant
Solicitors:
Coopers Lawyers - for the plaintiff
Low Doherty & Stratford - for the defendant

File Number(s): 2010/412807

Judgment

Introduction

This is the further hearing of the plaintiff's claim for partition of a valuable parcel of land at Dover Heights in Sydney. In my decision given on 19 October 2011, I concluded by stating:

I have explained why at this stage, and subject to hearing further, I favour partition over sale. However,…

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 Barel v Segal (No 2)

Details

AGLC: Barel v Segal (No 2) [2012] NSWSC 1054
Case: [2012] NSWSC 1054
Decision Date: 21 September 2012

CaseChat Overview and Summary

In the case of Barel v Segal, the dispute involved co-owners of a property, Barel and Segal, over matters relating to the application of the Conveyancing Act 1919 and the interpretation of certain terms within it. The matter was heard in the Supreme Court of New South Wales, where the primary focus was on the interpretation and application of specific sections of the Act, particularly Sections 66F(3), 66G(3), 66G(4), and 66G(5). The court was tasked with determining the meaning and application of terms such as "equality money," "occupation fee," and the discretion of the court under Section 66G(4) when planning issues were present.

The central legal issues revolved around the interpretation of statutory provisions within the Conveyancing Act 1919, specifically the meaning and applicability of "equality money" and "occupation fee." Additionally, the court had to consider whether planning issues could preclude an order under Section 66G(4) and whether a statutory trust for partition required at least two individual trustees. The court also needed to decide if the adoption of a referee's report should be determined based on the nature and circumstances of the case and whether it was appropriate to correct clear mistakes or ensure that the evidence supported the referee's findings. Lastly, the court examined whether the circumstances warranted a gross and fixed sum costs order under Section 98(4) of the Civil Procedure Act 2005.

The court, after thorough examination, ruled that the term "more beneficial" in Section 66G(4) of the Act was not limited to comparative economic benefit. It also held that planning issues, capable of being resolved under Section 66G(5), did not prevent an order under Section 66G(4). The court clarified that "equality money" had no application to the facts at hand and that an "occupation fee" was only available where one co-owner was in sole occupation. Furthermore, the court confirmed that a statutory trust for partition required at least two individual trustees. The court adopted the referee's report but ensured to correct clear mistakes and verified that the evidence supported the referee's findings. Lastly, the court found it appropriate to make a gross and fixed sum costs order, considering the relevant factors under Section 98(4) of the Civil Procedure Act 2005.

The final orders of the court included the correction of the referee's report to address clear mistakes and ensure the evidence supported the findings. The court also affirmed the interpretation of the relevant sections of the Conveyancing Act 1919 and the appropriateness of the gross and fixed sum costs order. The court directed the parties to proceed with the resolution of the remaining issues in accordance with the decision.

Orders