Foundas v Arambatzis (No 3)

The proceeding concerned an application by the appellant, Mr Foundas, to set aside an order made on 24 March 2020, which had directed him to pay occupation rent to the respondent, Mr Arambatzis. The dispute arose in the context of a co-ownership of land in New South Wales, where a trustee had been appointed under section 66G of the *Conveyancing Act 1919* (NSW). The core of the appellant's argument for setting aside the order was that the trustee, at the time the demand for occupation rent was made, was not the registered proprietor of the land. The appeal was heard by Bell P, Basten and White JJA of the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the order for occupation rent should be set aside on the grounds that the trustee was not the registered proprietor when the demand was made. This required the court to consider the effect of an order made under section 66G of the *Conveyancing Act 1919* (NSW) on the rights of a co-owner, specifically in relation to the recovery of occupation rent. The court also had to determine whether the trustee's status as registered proprietor at the time of the demand was a prerequisite for the validity of the occupation rent order.

The Court of Appeal dismissed the application to set aside the order. The court reasoned that an order made under section 66G of the *Conveyancing Act 1919* (NSW) vests the land in the appointed trustee, thereby conferring upon the trustee the power to manage and deal with the property. This power includes the right to seek orders for occupation rent from a co-owner who remains in exclusive occupation of the property. The court held that the trustee's entitlement to seek occupation rent arose from their statutory powers and duties as trustee, rather than from their status as registered proprietor at the precise moment the demand was made. The legal principle applied was that the statutory vesting of the land in the trustee under section 66G was sufficient to empower the trustee to pursue such claims, irrespective of the timing of the registration of the trustee's interest relative to the demand for rent.

Consequently, the application to set aside order 8 made on 24 March 2020 was dismissed with costs.