Breiholdt v Green

[2005] NSWSC 702

CITATION:	Breiholdt v Green [2005] NSWSC 702
HEARING DATE(S):	12 July 2005
JUDGMENT DATE :	12 July 2005
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Orders made giving effect to compromise re distribution of proceeds of sale by trustees and costs.

CATCHWORDS:	REAL PROPERTY [315] - Partition of land - Statutory trust for sale or partition - New South Wales - Distribution of proceeds of sale - Compromise agreed to by seven of eight co owners - Orders made binding on eighth co owner as well.
LEGISLATION CITED:	Conveyancing Act 1919 s 66G
PARTIES:	Hans Breiholdt (P & 1XD) Stephen Geoffrey Green (1D & 2XD) Mark James McClelland (2D & 3XD) Deborah Caroline Bedford Vincent (3D & XC) Simon Cunningham Uren (4D & 4XD) Mark Andrew Scott (5D & 5XD) Donald Noel King (6XD) Jeanine Maree King (7XD)
FILE NUMBER(S):	SC 2024/01
COUNSEL:	J J Loofs (P & 1XD) In person (1D & 2XD) No appearance (2D & 3XD) M Rosenblatt, Solicitor (XC & 3D) No appearance (4D & 4XD) In person (5D & 5XD) J M Atkin (6 & 7XDs)
SOLICITORS:	John G McDonald & Partners (P & 1XD) In person (1D & 2XD) No appearance (2D & 3XD) Abbott Tout (XC & 3D) No appearance (4D & 4XD) In person (5D & 5XD) Walters (6 & 7XDs)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 12 JULY 2005

2024/01 HANS BREIHOLDT v STEPHEN GEOFFREY GREEN & ORS

JUDGMENT

1 HIS HONOUR: These proceedings were for the appointment of trustees for sale under s 66G of the Conveyancing Act 1919. The trustees were appointed and the property has been sold. Before the Court for trial today was a cross claim which related to the destination of the proceeds of sale. The proceedings were somewhat complex because there are seven cross defendants who, along with the cross claimant, were co owners of the property.

2 The proceedings have been settled among seven of those co owners. All those co owners are present or represented in Court, except the third cross defendant, Mark James McClelland, and the fourth cross defendant, Simon Cunningham Uren. Evidence has been led before me that the terms have been communicated to Mr McClelland and that Mr McClelland has consented to those terms. That leaves outstanding only Mr Uren.

3 In the case of Mr Uren, evidence has been given that he was served with the cross claim, at least by post. Furthermore, evidence has been given that Mr Rosenblatt, solicitor for the cross claimant, has had at least one telephone conversation with him, being a telephone conversation this morning. In the course of that conversation, the currency of the cross claim was discussed and the fact that the cross claim was before the Court for hearing today was mentioned.

4 Quite complicated orders have been agreed between the parties and incorporated in a form of orders. The assent of the parties, other than the third and fourth cross defendants, is attested by execution by them or on their behalf of those orders. As I have already said, there is evidence before the Court that the third cross defendant, Mr McClelland, consents to the orders. The only party in respect of whom there is any absence of consent is Mr Uren, the fourth cross defendant.

5 The orders largely relate to the distribution of funds and the application of funds to costs. The sum of $35,000 has been agreed as the appropriate amount for the plaintiff to have for the costs of the proceedings to appoint the trustees. The sixth and seventh cross defendants are to have $15,000 towards their costs out of funds held by them, of which Mr Uren has an entitlement to $3,000. There appears to me to be nothing unreasonable about the orders. They have been agreed to by all the other parties. Mr Uren is aware of the proceedings and has chosen not to attend.

6 I propose to make the orders. Those orders will be made by consent against all the other parties and will be made by the Court against Mr Uren without his consent in all the circumstances.

7 One ancillary order that requires to be made relates to Hans Breiholdt, the plaintiff. Mr Breiholdt, unfortunately, died on 10 December 2003. Probate of his will was granted on 27 February 2005 to Nicolette Angelica Meng. I propose to make an order that Ms Meng be substituted for Mr Breiholdt as the plaintiff and first cross defendant in the proceedings.

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