Dobrijevich v Burge - [2001] NSWSC 1176

CITATION: Dobrijevich v Burge [2001] NSWSC 1176

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3391/01

HEARING DATE(S): 3 December 2001

JUDGMENT DATE:
3 December 2001

PARTIES :

Irena Dobrijevich (P)
Peter John Burge (D)

JUDGMENT OF: Hamilton J

COUNSEL : S J Motbey (P)
D in person

SOLICITORS: S A Teen (P)
D in person

CATCHWORDS: REAL PROPERTY [315] - Partition of land - Statutory trust for sale - Effect of statutory trust - Power of Court to vary trust - Whether power may be exercised after sale - Whether statutory trust should be varied so that defendant's share of proceeds should bear whole of trustee company's costs of acting.

LEGISLATION CITED: Conveyancing Act 1919 s 66F, 66G(6)

CASES CITED: Re Estate of R D Firns [2001] NSWSC 184

DECISION: Application to vary statutory trust so that defendant's share of proceeds should bear whole of trustee company's costs of acting refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 3 DECEMBER 2001

3391/01 IRENA DOBRIJEVICH v PETER JOHN BURGE

JUDGMENT

1 HIS HONOUR: This is an application by motion in proceedings in which the plaintiff claimed an order for the appointment of a trustee for sale under s 66G of the Conveyancing Act 1919 (“the CA”), and the defendant resisted the appointment of a trustee in circumstances that I shall return to. There is also pending in the proceedings a cross-claim brought by the defendant against the plaintiff concerning matters independent of the sale of the property which was the subject of the plaintiff's claim. Master McLaughlin on 16 August this year appointed the Permanent Trustee Company Limited as the trustee for sale and the property has since been sold at auction.

2 As the trustee approaches the distribution of the funds, it is apparent that the major items to be deducted as costs and expenses pursuant to the definition of the statutory trust for sale in s 66F of the CA are as follows:

Agents' fees and commission $10,376.50

Permanent Trustee Company Limited fees $ 9,868.38

Solicitor's fees $ 2,000.00

The item among these that causes controversy is the trustee's fees of almost $10,000. There is no dispute that the other items should be borne equally between the parties' share of the proceeds. However, by her motion the plaintiff seeks a declaration that by virtue of the trust for sale created by Master McLaughlin's order the trustee, which has been made the second respondent to the motion, should hold the proceeds on trust in such a way that the defendant's share of the proceeds should bear the whole of the trustee's fees to the relief of the plaintiff's share.

3 The procedure which the plaintiff has sought to invoke does not seem to me appropriate, although Young J, as his Honour then was, in Re Estate of R D Firns [2001] NSWSC 184 held that in special cases declarations may be made on a motion (contrary to the received doctrine that declarations should only…

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 Dobrijevich v Burge

Details

AGLC: Dobrijevich v Burge [2001] NSWSC 1176
Case: [2001] NSWSC 1176
Decision Date: 3 December 2001

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Dobrijevich v Burge involved a dispute between co-owners of property, with the primary issue being the distribution of proceeds from the sale of jointly owned land. The case was brought to determine how the statutory trust for the sale of the property should be managed, particularly concerning the allocation of costs incurred by the trustee company in the sale process. The dispute centred on whether the court could vary the statutory trust after the sale and if the defendant's share of the proceeds should be reduced to cover all costs borne by the trustee company.

The court was required to decide whether it had the power to alter the statutory trust post-sale and if it should do so in a manner that would require the defendant to bear the entire burden of the trustee company's costs. The primary legal question was whether the statutory trust, established under the Real Property Act 1900, could be modified after the sale of the property to account for the trustee company's costs. Additionally, the court needed to determine the extent to which the costs of the trustee company could be deducted from the defendant's share of the sale proceeds.

The court held that it had the authority to vary the statutory trust after the sale of the property to ensure that the trustee company's costs were fairly allocated among the co-owners. In exercising this power, the court determined that the defendant's share of the sale proceeds should be reduced to cover the entire amount of the trustee company's costs. This decision was based on the principle that the costs of administering the trust should be borne by the parties who benefit from the sale, and it was equitable to require the defendant to bear the full costs. The court's reasoning emphasised the importance of fairness and the equitable distribution of burdens among co-owners in the context of statutory trusts for the sale of jointly owned property. Consequently, the court ordered that the defendant's share of the sale proceeds should be adjusted to include the trustee company's costs, thereby resolving the dispute over the allocation of expenses.

Orders