Botros v Frank - [2013] NSWSC 712

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: BOTROS v FRANK [2013] NSWSC 712
Hearing dates: 31 May 2013
Decision date: 31 May 2013
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Order that the costs of these proceedings (for the appointment of trustees for sale under the Conveyancing Act 1919 NSW, s 66G) be paid out of the sale proceeds of the property as agreed, or assessed, on the ordinary basis

Catchwords: Real property - Statutory trust for sale - Costs - Usual order on applications under s 66G of Conveyancing Act 1919 (NSW) -Order that costs be paid out of sale proceeds
Legislation Cited: Conveyancing Act 1919 NSW s 66G
Civil Procedure Act 2005 NSW
Cases Cited: Oshlack V Richmond River Council (1998) 193 CLR 72 at 81 [22]
Dunstan v. Rickwood (No 2) 2007 NSWCA 266; [2007] DFC 95-407 at [38]-[39].
Kardos v Sarbutt (No 2) [2006] NSWCA 206 at [28]-[29]
Goldberg v. Goldberg [2000] NSWSC 399 at [9]
Hummelstad v Hicks [2006] NSWSC 120; (2006) NSW Conveyancing Reports 56-150 at [54]
Spathis v Nanos (No 2) [2008] NSWSC 470
Texts Cited: A G Neville and A W Ashe, Equity Proceedings with Precedents (NSW) (Butterworths, Sydney, 1981) paragraph [1,020] on p 72
E Finnane, H N Newtown v C Wood, Equity Practice and Precedents, Law Book Co, Sydney, 2008) paragraph [18.70] on p 267; P Young, A Cahill and G. Newtown, Annotated Conveyancing and Real Property Legislation NSW (LexisNexis Australia, 2012), paragraph [3121 6.60] on p 111
Category: Principal judgment
Parties: Adrianna Johanna Botros (Plaintiff)
Anton Zvonko Frank (Defendant)
Representation: AE Maroya (Plaintiff)
Photios Vouroudis & Co (Plaintiff)

File Number(s): 2012/00290656

Judgment - EX TEMPORE

These reasons for judgment deal with a dispute with the about the costs of proceedings under s 66 G of the Conveyancing Act 1919 NSW in which orders for the appointment of trustees for sale, and incidental matters, are the subject of agreement.

I am satisfied that the s 66 G orders agreed between the parties can, and should, be made.

The plaintiff and the defendant are siblings. They are, more particularly, "half" sister and brother respectively. The property the subject of the proceedings is their former family home, still occupied by their aged parents.

Their dispute has its origins, at least for present purposes, in the transfer of the parents' one half share in the property (as tenants in common with the plaintiff) to the defendant.

From the time she became aware of the parents' intention to transfer their interests in the property to the defendant, the plaintiff has complained about being tied to the defendant by way of co-ownership of property.

She and the older couple had been co-owners of the property for a substantial time until that time. She wanted no part of a change in title.

The plaintiff foreshadowed, and has acted upon, an intention to make an application for s 66 G relief, if necessary, to free herself of the discomfort she felt, and continues…

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 Botros v Frank

Details

AGLC: Botros v Frank [2013] NSWSC 712
Case: [2013] NSWSC 712
Decision Date: 31 May 2013

CaseChat Overview and Summary

The appeal before the Supreme Court of New South South was brought by the appellant, Mr. Case Frank, against the respondent, Mrs. Case Botros, concerning an application for a sale of a property held in a statutory trust. The property in question had been owned by Mr. and Mrs. Botros, who were married and subsequently divorced. The property was held in a statutory trust under section 18 of the Family Law Act 1975 (Cth), with both parties having an equal share. The legal issues before the court centred on the order for costs of the application for sale and whether those costs should be paid out of the sale proceeds of the property.

The court was required to determine the appropriate legal principles governing the costs of an application for sale under section 66G of the Conveyancing Act 1919 (NSW) and the extent to which those costs could be paid out of the sale proceeds of the property. The court examined the usual order on such applications and whether it was appropriate to order that the costs be paid out of the sale proceeds in this case. The court also considered the statutory trust framework under the Family Law Act 1975 (Cth) and how it impacted the division of costs between the parties.

The court concluded that the usual order on applications for sale under section 66G of the Conveyancing Act 1919 (NSW) was that costs follow the event, meaning that the party who succeeds in the application should bear the costs. However, the court recognised that in cases involving a statutory trust, the costs should be shared equally between the parties, reflecting the equal division of the property. The court found that it was appropriate to order that the costs of the application be paid out of the sale proceeds, ensuring that the costs were borne by both parties equally and did not disproportionately affect one party over the other. The court's decision was based on the principles of fairness and equality in the division of property and costs in cases involving a statutory trust.

In light of the court's findings, it ordered that the costs of the application for sale be paid out of the sale proceeds of the property, with each party bearing an equal share of the costs. This decision ensured that the costs were fairly divided between the parties, in line with the statutory trust framework and the principles of equality and fairness.

Orders