David Ian Mansfield, the Trustee of the Property of Thi Ngoc Hahn Son, a Bankrupt v Tia

The case of David Ian Mansfield, the Trustee of the Property of Thi Ngoc Hahn Son, a Bankrupt v Tia was before the Supreme Court of New South Wales. The plaintiff, David Ian Mansfield, was appointed as the trustee of the bankrupt's estate and subsequently became co-owner of real property with the defendant, Tia. The dispute arose when the plaintiff sought to sell the property under section 66G of the Conveyancing Act 1919 (NSW). Despite the property being sold pursuant to a Deed of Sale, the plaintiff continued with the proceedings, which the defendant sought to have dismissed due to their redundancy.

The legal issues before the court included the dismissal of the proceedings due to the sale of the property and the appropriate allocation of costs between the parties. The court had to determine whether the defendant acted unreasonably by failing to negotiate with the plaintiff prior to the commencement of proceedings and whether the Deed of Sale adequately addressed the costs of the proceedings. The court also needed to decide if it was appropriate to make a gross sum order for the costs.

The court found that the defendant had no obligation to negotiate with the plaintiff prior to the proceedings and that any delay after the commencement of the proceedings was not entirely the defendant's fault. The court concluded that the Deed of Sale did not provide a conclusive agreement on the costs of the proceedings, leaving it open to the court to make an order. The court held that the circumstances did not justify a departure from the usual position that the costs of such proceedings are shared between co-owners. Consequently, the defendant was ordered to pay half of the plaintiff's costs. Regarding the gross sum order, the court found that there was doubt as to whether it could fix a fair sum between the parties, and the defendant should not be deprived of the benefit of a costs assessment. Therefore, no gross sum order was made.