Felton v Rasity
[2001] NSWSC 555
•19 June 2001
CITATION: Felton v Rasity [2001] NSWSC 555 CURRENT JURISDICTION: Equity Division FILE NUMBER(S): SC 2672/01 HEARING DATE(S): 19/06/2001 JUDGMENT DATE:
19 June 2001PARTIES :
Tanya Felton v Paul RasityJUDGMENT OF: Master Macready at 1
COUNSEL : Miss Parry for plaintiff
Defendant in personSOLICITORS: Somerville Laundry Lomas for plaintiff CATCHWORDS: Real Property. Application for appointment of trustees under s 66G of the Conveyancing Act. - No matter of principle. DECISION: Paragraph 6
1 MASTER: This is an application by way of summons for the appointment of a Public Trustee as trustee for sale of a property known as 38 Geneva Street, Kyogle. The property was left by the late Michael Joseph Rasity, the father of the two parties, to them equally as tenants in common. The property at the date of death was tenanted and at some stage the last tenants vacated. The property apparently was in some state of disrepair, and the defendant moved into occupation of part of the property and has started to look after it. According to him he has also done a number of repairs to the place, painting and other matters.
2 There is a course of correspondence which shows that the parties have not been able to agree on either of them purchasing out the other, and it is appropriate that there should be a sale. This will cause some hardship to the defendant as he does not have anywhere else to live, but if the property can be sold he tells me he is prepared to vacate to enable that sale.
3 The defendant has tendered several appraisals of the property, one which is undated for $107,000, which might have been some time ago, and one of 23 March 2001 showing a value at $89,000. Whatever is the appropriate price will have to be determined by the Trustee appointed for sale, taking into account what advice that trustee is given by any agents it employs.
4 Although the defendant says that he does not have the funds to purchase the sister's share, I think it is appropriate that there should be an order for either of the parties to purchase. One matter that has concerned me is that the defendant has tendered a medical certificate of a Dr Perry, showing that he has been suffering from a reactive depressive state. The certificate merely addresses whether he is fit to work, and says that he is not fit to work until 16 July 2001. It makes reference to requiring a full vocational and social assessment. I am satisfied from seeing the defendant today and hearing him explain his situation, that he understands the situation and understands what is occurring.
5 I think it is appropriate that I appoint trustees and give the parties liberty to purchase the property if they wish. I also propose to make an order that the defendant give vacant possession once any sale is arranged. I think it is in the parties interests for him to stay in the property and look after it until the sale is arranged, and I will reserve the right to the defendant to have considered the question of the division of the proceeds between the parties after the sale.
6 Accordingly the orders I make are as follows:
1. I make orders 1, 2, 3 and 4 in the summons.
2. I order that the defendant give vacant possession of the land in Certificate of Title Folio Identifier C/3/77363 to the Public Trustee within 21 days of the Public Trustee arranging a sale of the subject property.
3. I order that either party may make further application to the court for orders as to the division of proceeds once the property is sold.
4. I order that the costs of the application be paid out of the sale proceeds.
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