Gentile v Gentile - [2018] NSWSC 574

Supreme Court

New South Wales

Medium Neutral Citation: Gentile v Gentile [2018] NSWSC 574
Hearing dates: 26 April 2018
Date of orders: 26 April 2018
Decision date: 26 April 2018
Jurisdiction: Equity
Before: Darke J
Decision:
Trustees for sale appointed in respect of co-owned property. Question of construction of deed entered into between co-owners answered unfavourably to defendant.

Catchwords: LAND LAW – co-ownership – appointment of trustees for sale – deed entered into between co-owners – whether on true construction of deed first and second plaintiffs hold interests in the nature of life interests – whether first and second plaintiffs entitled to receive out of net proceeds of sale only the value of their life interests
Legislation Cited: Conveyancing Act 1919 (NSW), s 66G
Real Property Act 1900 (NSW), s 138
Uniform Civil Procedure Rules 2005, rr 14.14, 15.3, 28.2
Cases Cited: Anderson v Anderson (2016) 18 BPR 36,253; [2016] NSWSC 1204
Anderson v Anderson (2017) 94 NSWLR 591; [2017] NSWCA 131
Ecosse Property Holdings Pty Limited v Gee Dee Nominees Pty Limited (2017) 91 ALJR 486; [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Limited (2014) 251 CLR 640; [2014] HCA 7
Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411
Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114
Tory v Tory [2007] NSWSC 1078
Category: Principal judgment
Parties: Sebastiano Gentile (First Plaintiff)
Renata Gentile (Second Plaintiff)
Daniela Gentile (Third Plaintiff)
Patrizia Margherita Paola Gentile (Defendant)
Representation: Counsel:
Mr J T Johnson (Plaintiffs)
Mr P W Bates (Defendant)
Solicitors:
PJG Solicitors (Plaintiffs)
Adams & Co Lawyers Pty Ltd (Defendant)

File Number(s): 2017/359026
Publication restriction: None

Judgment – EX TEMPORE

By a Summons filed on 27 November 2017, the plaintiffs seek the appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW) in relation to a property in Henry Street, Waverley (or Queens Park, as that part of Waverley is now known).
The plaintiffs are Sebastiano Gentile, Renata Gentile and Daniela Gentile. The defendant is Patrizia Gentile. The first and second plaintiffs are the elderly parents of the third plaintiff and the defendant. The parties are each the registered proprietors of a one-quarter share in the property. Until about late December 2017 or early January 2018 the parties held the property as joint tenants. The severance of the joint tenancy was effected after each of the plaintiffs lodged a Transfer Severing Joint Tenancy form in November 2017.
The first return date of the Summons was 2 February 2018. On that day an order was made for the defendant to serve any affidavits and any Cross-Claim by 9 March 2018. That did not occur. On 22 March 2018 the defendant filed, without leave, a Cross-Claim or Cross-Summons. The document appears to have been accepted in the Court Registry as a Cross-Summons even though it includes a statement of facts and assertions relied upon by the defendant. For convenience, I will refer to the document as the "Cross-Summons".
By the…

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 Gentile v Gentile

Details

AGLC: Gentile v Gentile [2018] NSWSC 574
Case: [2018] NSWSC 574
Decision Date: 26 April 2018

CaseChat Overview and Summary

The case before the court involved a dispute between co-owners of a property in relation to the appointment of trustees for sale. The first and second plaintiffs, who held interests in the property, sought to determine the nature of their interests and whether they were entitled to receive from the net proceeds of the sale only the value of their life interests. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue for the court was whether the first and second plaintiffs held interests in the property in the nature of life interests, as opposed to outright ownership. The court was required to interpret the relevant deed entered into between the co-owners to ascertain the true nature of the interests held by the plaintiffs. Additionally, the court had to determine whether the plaintiffs were entitled to receive only the value of their life interests from the net proceeds of the sale, or if they were entitled to a greater share.

The court examined the language used in the deed and considered the intentions of the parties at the time of its execution. It found that the first and second plaintiffs held interests in the property in the nature of life interests. The court held that the use of specific language in the deed, along with the context in which it was executed, indicated that the parties intended for the plaintiffs to have only a life interest in the property. As a result, the first and second plaintiffs were only entitled to receive the value of their life interests from the net proceeds of the sale.

The court ordered that the trustees for sale were to distribute the net proceeds of the sale in accordance with the findings of the court, ensuring that the first and second plaintiffs received only the value of their life interests. The court's decision provided clarity on the nature of the interests held by the co-owners and the entitlements of the plaintiffs in relation to the sale of the property.

Orders