Chen v Cheung

[2023] NSWSC 331

Supreme Court

New South Wales

Medium Neutral Citation:

Chen v Cheung [2023] NSWSC 331

Hearing dates:

31 March 2023

Date of orders:

31 March 2023

Decision date:

31 March 2023

Jurisdiction:

Equity - Real Property List

Before:

Hammerschlag CJ in Eq

Decision:

Trustees for sale appointed pursuant to s 66G of the Conveyancing Act 1919 (NSW). See [6]

Catchwords:

REAL PROPERTY — co-ownership — statutory trust for sale — appointment of trustees — no issue of principle

Legislation Cited:

Conveyancing Act 1919 (NSW)

Cases Cited:

Foundas v Arambatzis [2020] NSWCA 47

Ngatoa v Ford (1990) 19 NSWLR 72

Re Fettell (1952) 52 SR (NSW) 221

Williams v Legg (1993) 29 NSWLR 687

Category:

Principal judgment

Parties:

De Ming Chen (Plaintiff)
Hoi Wan Cheung (Defendant)

Representation:

Counsel:
D Oliveri (Solicitor) (Plaintiff)
D Leamey (Solicitor) (Defendant)

Solicitors:
Oliveri Attorneys (Plaintiff)
David Leamey Solicitor & Barrister (Defendant)

File Number(s):

2022/00327523

ex tempore JUDGMENT (revised)

1. By Summons filed on 2 November 2022, the plaintiff moves the Court for orders under s 66G of the Conveyancing Act 1919 (NSW) (the Act) for the appointment of trustees for sale of a strata tittle property, being Unit C 203/2 Livingstone Avenue, Pymble, New South Wales 2073 (the Property) co-owned by the parties, and for orders that the proceeds of the sale be disbursed, first for the payment of necessary expenses and then as to half to each of the parties.

2. The defendant agrees that the Property should be sold, but opposes the appointment of trustees, arguing that the parties themselves instruct solicitors to undertake the conveyancing of the Property. I was informed from the Bar table that the defendant has taken steps to put the Property on the market and an auction has currently been arranged to take place in two weeks’ time.

3. As has often been said, an order for the sale of co-owned property is discretionary, but the discretion is limited, and it is for the opposing co-owner to establish a reason why an order should not be made: see for e.g. Re Fettell (1952) 52 SR (NSW) 221 at 227-228; Ngatoa v Ford (1990) 19 NSWLR 72 at 73-76; Williams v Legg (1993) 29 NSWLR 687 at 691-693; Foundas v Arambatzis [2020] NSWCA 47 at [63].

4. Here, the defendant has established no such reason. To the contrary, the fact that the parties cannot agree on a method and procedure for sale is reason in itself to grant the order.

5. The plaintiff has nominated two solicitors to be trustees, both of whom have provided consent. No objection is taken to the identity of the trustees.

6. In the circumstances, I make the following orders:

1. Mario Di Lizio and Wen Qing Chen, solicitors, are appointed trustees of all the land in Folio Identifier 6/SP 90840, known as C 203/2 Livingstone Avenue, Pymble NSW 2073 (the Land).

2. That the Land be vested in the trustees subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares, to be held by them on statutory trust for sale under Division 6 of the Conveyancing Act 1919 (NSW) as amended.

3. Not later than 12 May 2023, the defendant is to give vacant possession of the Land to the trustees.

4. Upon the sale of the Land, the proceeds are to be applied in the following order of priority:

1. payment of any agent’s commission and other costs of sale;

2. payment of the trustees’ fees in such amount as the parties agree or as the Court may determine;

3. payment of the plaintiff’s costs of these proceedings as agreed by the parties or as assessed; and

4. payment of the balance remaining, to the plaintiff as to one half, and to the defendant as to the other half.

5. The trustees have liberty to seek directions or further orders from the Court as may be necessary.

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Decision last updated: 04 April 2023