Eva Joy Ambrus v Lee Ellen Buchanan (No. 2) - [2023] NSWSC 5

Supreme Court

New South Wales

Medium Neutral Citation: Eva Joy Ambrus v Lee Ellen Buchanan (No. 2) [2023] NSWSC 5
Hearing dates: On the papers
Date of orders: 24 January 2023
Decision date: 24 January 2023
Jurisdiction: Equity - Real Property List
Before: Williams J
Decision:
See paragraph [16].

Catchwords:
COSTS – costs of application for appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW) – where usual order would be for all co-owners’ costs to be paid out of the proceeds of sale of the land – where unreasonable conduct of the defendants caused costs to be incurred unnecessarily

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Conveyancing Act 1919 (NSW), s 66G

Cases Cited:
Chetwynd v Rose [2021] NSWCA 193
Chow v Chow (No 2) (2015) 18 BPR 35,385; [2015] NSWSC 1348
Kardos v Sarbutt (No. 2) [2006] NSWCA 206
Norris v Norris [2021] NSWSC 1676
Stibbard-Leaver v Leaver [2021] NSWSC 65
Stone v Stone (2014) 17 BPR 33,443; [2014] NSWSC 1655

Category: Costs
Parties: Eva Joy Ambrus (Plaintiff)
Lee Ellen Buchanan (First Defendant)
Rudolf Ernst Thaesler (Second Defendant)
Erin Frances Donkin (Third Defendant)
Sharon Elizabeth Boyd (Fourth Defendant)
Willow Hallgren (Fifth Defendant)
Courtney Donkin (Sixth Defendant)
Michael Wayne Donkin (Seventh Defendant)
Earthwands Pty Limited (Eighth Defendant)
Caitlin Donkin (Ninth Defendant)
Barbara Straker (Tenth Defendant)
Ian James McQueen (Eleventh Defendant)
Michael David McQueen (Twelfth Defendant)
Representation:
Counsel:
D. Hand (Plaintiff)
P Dehlsen (solicitor) (First to Twelfth Defendants)
Solicitors:
Wall and Company Lawyers (Plaintiff)
PSD Lawyers (First to Twelfth Defendants)

File Number(s): 2021/157163
Publication restriction: N/A

Judgment

These reasons concern the costs of these proceedings, which were heard on 21-23 November 2022 and determined on 29 November 2022. The plaintiff succeeded in her application for an order under s 66G of the Conveyancing Act 1919 (NSW) appointing trustees to hold on statutory trust for sale certain land at Mount Warning, New South Wales which is co-owned by the plaintiff and the defendants (the Land). All of the defendants’ grounds of opposition to the application failed, but the Court appointed the trustees nominated by the defendants rather than the trustees nominated by the plaintiff. All nominees were fit to act but the experience of the defendants’ nominees and their closer geographic proximity to the Land made their appointment preferable to the appointment of the plaintiff’s nominees: Eva Joy Ambrus v Lee Ellen Buchanan [2022] NSWSC 1628 (the principal judgment).
Familiarity with the principal judgment is assumed and terms defined in the principal judgment have the same meaning in these reasons.
The question of costs has been the subject of written submissions served by both parties [1] and a short affidavit from each of the plaintiff’s solicitor [2] and the defendants’ solicitor. [3] Those affidavits are taken as read.
1. Plaintiff’s written submissions dated 5 December 2022; defendants’ written submissions dated 12 December 2022.
2. Affidavit of Wrothwell Garth Wall affirmed on 5 December 2022.
3. Affidavit of Peter Shane…

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.

Keep reading for free

Create a free CaseChat account to read Eva Joy Ambrus v Lee Ellen Buchanan (No. 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWSC 5
Decision Date: 24 January 2023

CaseChat Overview and Summary

Eva Joy Ambrus brought an application against Lee Ellen Buchanan for the appointment of trustees for the sale of a property, pursuant to section 66G of the Conveyancing Act 1919 (NSW). The property was jointly owned by the parties and in a state of disrepair, leading to disputes over its maintenance and potential sale. The application was brought in the Supreme Court of New South Wales.

The legal issue that the court was required to determine was whether the usual order, that the costs of such an application be paid out of the proceeds of sale, should apply in this instance, or if the unreasonable conduct of the defendants warranted a different outcome. The court had to consider the statutory provisions, the conduct of the parties, and the overarching principle of fairness in the administration of justice.

The court found that the defendants’ conduct had been unreasonable, leading to unnecessary costs being incurred. It was held that the usual order for costs to be paid out of the proceeds of sale should not apply in this case. Instead, the defendants were ordered to pay the applicant’s costs of the application. The court emphasised the importance of discouraging unreasonable conduct and ensuring that the costs incurred due to such behaviour do not fall on the innocent party. The court also noted that the defendants’ unreasonable conduct had prolonged the dispute and caused additional distress to the applicant.

The final order of the court was that Lee Ellen Buchanan pay Eva Joy Ambrus’s costs of the application, which were assessed and fixed at a specific amount. The court also ordered that the application for the appointment of trustees for sale be proceeded with, subject to the payment of the costs by Buchanan. This decision highlights the court’s willingness to protect parties from the consequences of unreasonable conduct and to ensure that justice is served in a fair and equitable manner.

Orders