Fazzalori v Schermer

[2004] NSWSC 931

NEW SOUTH WALES SUPREME COURT

CITATION:      Fazzalori v Schermer [2004]  NSWSC 931

CURRENT JURISDICTION:            Equity

FILE NUMBER(S):    6141/01

HEARING DATE{S):            7 October 2004

JUDGMENT DATE: 07/10/2004

PARTIES:
Vivie Anne Fazzalori (P)
Gerhard Joseph Schermer (D)

JUDGMENT OF:      Hamilton J     

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S):       Not Applicable

LOWER COURT JUDICIAL OFFICER:     Not Applicable

COUNSEL:
M Meyer, Solicitor (P)
In person (D)

SOLICITORS:
Meyer Pigdon (P)
In person (D)

CATCHWORDS:
EQUITY [424] - Equitable remedies - Accounts and inquiries - Other cases - Inquiry - Question of entitlement to balance of proceeds of sale of a property sold under order of the Court.

ACTS CITED:

DECISION:
Question of entitlement to balance of proceeds of sale of a property sold under order of the Court referred to Master for inquiry.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 7 OCTOBER 2004

6141/01VIVIE ANNE FAZZALORI v GERHARD JOSEPH SCHERMER

JUDGMENT

1. HIS HONOUR:  While a number of matters have been able to be agreed between the parties to these proceedings, they have not been able to agree as to the amounts in which they are respectively entitled to $39,770 held in the trust account of David H Cohen & Co, the former solicitors for the defendant, as noted in the Court's orders made on 30 April 2004.  The disputes, as I understand it, relate to the incidence of various costs of the sale of a property, which took place under order of the Court and of which the $39,770 forms the balance of the proceeds.  I have since that time on a number of occasions encouraged the parties to settle their differences as to this matter or to devise, by agreement, some simplified method, for example, by the report of an agreed accountant, by which the question could be settled.

2. Those things have simply not occurred.  I have contemplated ordering the payment out of the funds in the proportion of 60:40, which was the proportion in which the parties held the equity in the property, leaving the parties to pursue any claims they have against each other in a Court of appropriate jurisdiction, probably the Local Court.  However, as the moneys are held under a restraint of this Court and as the outstanding question is a question as to the expenses of a sale conducted under order of the Court, I do not think that that is an appropriate course to follow.

3. The determination of this question certainly does not merit the expenditure of Judge time, nor is this a matter which would have been dealt with by a Judge under the traditional procedures of the Equity Court.  I have tried to avoid the committal of the matter to the somewhat formal and expensive process of an inquiry before the Master but, in the absence of any ability of the parties to agree, this appears to me to be the only course open.  That would leave the only question to be determined by a Judge to be the question of what should be done about the costs of the proceedings.  I shall stand that question over to be dealt with by me after the inquiry before the Master.

4. The orders that I make as are as follows:

   1That it be referred to the Master to inquire as to the respective entitlement of the parties to the sum of $39,770 held in the trust account of David H Cohen & Co solicitors as noted in the Court's order made on 30 April 2004 being part of the proceeds of sale of 13 Belmore Street, Surry Hills under order of the Court.

   2That order 1 be entered forthwith.

   3That PO Box K726 Haymarket 1240 be taken to be the defendant's address for service pending his filing a notice of address for service.

   4The proceedings are stood over to 9 March 2005 at 9.30am before me for directions as to argument concerning costs.

   5Liberty to restore on two days notice.

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LAST UPDATED:     03/12/2004