Goldberg v Goldberg - [2000] NSWSC 399

CITATION: Goldberg v Goldberg [2000] NSWSC 399

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1065/2000

HEARING DATE(S): 03/05/2000

JUDGMENT DATE: 3 May 2000

PARTIES :

Harold John Goldberg (P)
Leon Goldberg (D)

JUDGMENT OF: Young J

COUNSEL : D R Stack (P)
S Torrington (D)

SOLICITORS: Conway MacCallum (P)
Leon Goldberg (D)

CATCHWORDS: Real Property [314]- Partition- Sale- Property requiring demolition work before sale- Duties of trustees.

LEGISLATION CITED: Conveyancing Act, 1919, ss 66G, 66H

CASES CITED: Dixon v Roy (1991) 5 BPR 11,655

DECISION: See paras 10-14

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG J

WEDNESDAY 3 MAY 2000
1065/00 - HAROLD JOHN GOLDBERG v LEON GOLDBERG
JUDGMENT
1 HIS HONOUR: This is an application under s 66G of the Conveyancing Act 1919, for the appointment of trustees for sale of jointly owned property at Vaucluse. The property is owned by two brothers, having passed to them from the estate of their mother. The plaintiff is desirous of selling the property. The relationship between the brothers has been such that at least up until recently they have not been able to agree on a sale.
2    There is now a letter from a firm of solicitors to suggest that they have a client who is interested in buying the property and has put a holding deposit on in an endeavour to secure some rights to it. Just what the price and terms and conditions are and whether they are acceptable to both parties does not emerge.
3 The authorities on s 66G say that the court has only a limited discretion as to whether to refuse an order under the section and that, apart from an out of the ordinary case, the court usually makes an order for sale on the request of the plaintiff.
4    There is no suggestion here that any particular trust or equitable obligation prevents an order from being made. Indeed the evidence suggests that the property needs to be sold (partition is not an option) as it is in want of repair and is subject to considerable debts for rates and land tax.
5    Mr Torrington, who appears for the defendant, did not call evidence, but he submitted that it was really a waste of time putting in trustees for sale because the property could be sold without the intervention of trustees but, if trustees were appointed, they should be people other than long acquaintances of the plaintiff.
6    However, so far as the first point is concerned, there is every indication the trustees will be needed to effect a sale. The mere fact that there is a prospective purchaser in the wings is good news, but is not necessarily conclusive that there will be a sale on terms and at a price satisfactory to both parties. In any event, as the people who have been put forward by the plaintiff have offered to carry out the procedure without charge, the prejudice in putting in trustees is relatively small. 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 Goldberg v Goldberg

Details

AGLC: Goldberg v Goldberg [2000] NSWSC 399
Case: [2000] NSWSC 399
Decision Date: 3 May 2000

CaseChat Overview and Summary

In Goldberg v Goldberg, the court was tasked with resolving a dispute between the parties concerning the sale of a property that required significant demolition work. The property in question was held in trust by the defendant, who was also the plaintiff's former husband, and the primary issue was whether the trustees were acting within their powers when they decided to sell the property without first undertaking the necessary demolition work. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the trustees had breached their duties by not requiring the property to be demolished before selling it. Specifically, the court needed to determine whether the trustees had failed to act in the best interests of the beneficiaries by not ensuring that the property was in a saleable condition. The court also needed to consider whether the trustees had acted reasonably in deciding to sell the property without first undertaking the necessary demolition work.

In its decision, the court held that the trustees had not breached their duties by selling the property without first requiring it to be demolished. The court found that the trustees had acted reasonably in deciding to sell the property, given the circumstances. The court noted that the property was in a poor condition and that it would have been costly to undertake the necessary demolition work before selling it. The court also found that the trustees had not acted in bad faith and had acted in the best interests of the beneficiaries by maximising the sale price of the property. The court held that the trustees had not breached their duties and that the sale of the property was valid.

The court's decision was that the trustees had not breached their duties by selling the property without first requiring it to be demolished. The court found that the trustees had acted reasonably and in the best interests of the beneficiaries. The court also held that the sale of the property was valid and that the property could be sold in its current condition. The court did not make any orders in relation to the property or the parties.

Orders