Breust v Anderson - [2024] ACTSC 182

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Breust v Anderson
Citation:	[2024] ACTSC 182
Hearing Date:	6 June 2024
Decision Date:	12 June 2024
Before:	Mossop J
Decision:	See [46]
Catchwords:	REAL PROPERTY – PARTITION – Sale in lieu of partition – property jointly owned by plaintiff and defendant from previous relationship – failure by defendant to remove plaintiff as joint owner – joint owner incurring rates and water charge liabilities – plaintiff unaware she was still a registered proprietor until receiving notice of legal proceedings brought by Icon Water – significant debts to Icon Water and ACT Revenue Office attached to property – failure by defendant to address issue – no appearance by defendant at any stage of proceedings – order for sale of property – appointment of independent trustee to undertake sale
Legislation Cited:	Civil Law (Property) Act 2006 (ACT), ss 243, 244, 245 Conveyancing Act 1919 (NSW), s 66G Court Procedures Rules 2006 (ACT), rr 781, 782, 783, 784, 785, 2015, 2451, 2452 Supreme Court Rules 1937 (ACT), O 53 r 2(1) Trustee Act 1925 (ACT), ss 70, 76(1), 77, 79
Cases Cited:	Hillman v Box and Others as Executors of the will of Box (No 2) [2011] ACTSC 10
Parties:	Renee Breust ( Plaintiff) Matthew Anderson ( Defendant)
Representation:	Counsel G Blank ( Plaintiff) No appearance ( Defendant)
Solicitors RMB Lawyers ( Plaintiff) No appearance ( Defendant)
File Number:	SC 475 of 2023

MOSSOP J:

Introduction

1․This is an unusual application in which the plaintiff seeks to have a property in which she is a joint tenant sold in order to discharge liabilities that the defendant has allowed to be incurred by the plaintiff and defendant as joint owners of the property. It is more unusual because, despite considerable effort to serve the defendant and have him respond to the plaintiff’s claim, he has not appeared or otherwise responded to the claim.

Background

2․The plaintiff and the defendant were in a de facto relationship from about 1988. In 1997, the couple purchased a house at [redacted], Holt in the ACT. The two owned the property as joint tenants.
3․In early 1998, the relationship broke down. The plaintiff moved out of the property while the defendant continued to live there. There was a verbal agreement between the two that the defendant would be responsible for the mortgage and would own the property in exchange for a payment to the plaintiff representing her equity in the property. The defendant paid the plaintiff this sum and the plaintiff moved out, under the assumption that her connection with the property had been terminated.
4․In April 2023, the plaintiff received a phone call from a law firm who told her that they acted for Icon Water and that they were contacting her in relation to a debt owed to Icon Water of approximately $12,000. They told the plaintiff that she was still a registered proprietor of the property.
5․The plaintiff left notes on two occasions at the property, asking…

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 Breust v Anderson

Details

AGLC: Breust v Anderson [2024] ACTSC 182
Case: [2024] ACTSC 182
Decision Date: 12 June 2024

CaseChat Overview and Summary

The case of Breust v Anderson involved a dispute over a jointly owned property, with the plaintiff, Breust, seeking an order for the sale of the property in lieu of partition. The parties had been in a previous relationship, and the property was jointly owned by both Breust and Anderson. Breust was unaware that she remained as a registered proprietor of the property until she received notice of legal proceedings brought by Icon Water for unpaid rates and water charges. The legal issues before the court included whether the defendant, Anderson, had failed to remove Breust as a joint owner of the property, and whether Anderson had failed to address the significant debts owed to Icon Water and the ACT Revenue Office that were attached to the property. Anderson did not appear at any stage of the proceedings.

The court found that Anderson had indeed failed to remove Breust as a joint owner of the property, and that he had also failed to address the debts owed to Icon Water and the ACT Revenue Office. The court concluded that the appropriate remedy was for the property to be sold in lieu of partition, and appointed an independent trustee to undertake the sale. The court noted that Anderson had not appeared at any stage of the proceedings, and had made no effort to defend the claims made by Breust.

In reaching its decision, the court considered the circumstances of the case, including the fact that Breust had been unaware that she was still a registered proprietor of the property, and that Anderson had made no effort to address the debts owed to Icon Water and the ACT Revenue Office. The court noted that the sale of the property was the most appropriate remedy, given the significant debts attached to the property and the failure of Anderson to address the issue. The court also noted that the appointment of an independent trustee to undertake the sale would ensure that the sale was conducted in a fair and transparent manner.

The court made an order for the sale of the property in lieu of partition, and appointed an independent trustee to undertake the sale. The court also made an order that the proceeds of the sale be held in trust pending the outcome of any further proceedings. The court noted that the sale of the property was the most appropriate remedy, given the circumstances of the case, and that the appointment of an independent trustee would ensure that the sale was conducted in a fair and transparent manner.

Orders

Orders of the court

See [46]

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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