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Grizonic v Suttor

Grizonic v Suttor

Case [2004] NSWSC 137 27 February 2004

Standing

Stay of Proceedings

Unconscionable Conduct

Family Law

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Reported Decision:
(2004) DFC 95-295

Supreme Court

CITATION: Grizonic v Suttor [2004] NSWSC 137

HEARING DATE(S): 27 February 2004

JUDGMENT DATE:
27 February 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Stay refused, trustees for sale appointed

CATCHWORDS: CONVEYANCING - joint tenancy and tenancy in common - appointment of trustees for sale under section 66G Conveyancing Act 1919 - application for stay pending making and hearing of application for adjustment of property interests in that property under Property (Relationships) Act 1984 - factors relevant to grant of stay - FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - other matters - circumstances in which stay, pending determination of application for adjustment of property interests under Property (Relationships) Act 1984, of application for appointment of trustees for sale of property held in co-ownership by people formerly in de facto relationship, will be made

LEGISLATION CITED: Conveyancing Act 1919
Family Law Act 1975 (Cth)
Family Provision Act 1982
Partnership Act 1892
Property (Relationships) Act 1984

CASES CITED: In the Marriage of Bak (1979) 6 Fam LR 411
Deguara v Mercieca (Supreme Court of NSW, Powell J, 23 August 1988, unreported)
Dembitzer v Mills [1980] 2 NSWLR 697
In the Marriage of Esmore (1979) 5 Fam LR 762
In the Estate of Gough, Deceased; Gough v Fletcher (1973) 5 SASR 559
Hogan v Baseden (1997) 8 BPR 15,723
Lo Surdo v Public Trustee [2003] NSWSC 837
McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068
Moon v Gordon (Supreme Court of New South Wales, Young J, 30 April 1996, unreported)
Ngatoa and Another v Ford and Another (1990) 19 NSWLR 72
Packo and Another v Packo (1989) 17 NSWLR 316
Rayner v Schuttler, (Supreme Court of New South Wales, McLelland J, 29 January1985, unreported)
In the Marriage of C A Rennie and J Higgon (1981) 7 Fam LR 715
Reynolds v Reynolds [1977] 2 NSWLR 295
In the Marriage of Sieling (1979) 4 Fam LR 713; (1979) 24 ALR 357
In the Marriage of Smith and Saywell (1980) 6 Fam LR 245
Stephens and Another v Debney (1959) 60 SR (NSW) 468
Westpac Banking Corporation v Sansom (1994) 6 BPR 13,790
Williams v Legg; Williams v Legg and Another (1993) 29 NSWLR 687
Williams v Williams [1979] 1 NSWLR 376
Woodson (Sales) Pty Ltd v Woodson (Aust) Pty Ltd (1996) 7 BPR 14,685

PARTIES :
Claudio Grizonic - Plaintiff
Suzanne Ranken Suttor - First Defendant
Find-A-Flat Pty Ltd - Second Defendant

FILE NUMBER(S): SC 6141/03

COUNSEL: R Killalea - Plaintiff
M Tyson - First Defendant
No Appearance - Second Defendant

SOLICITORS: Unrepresented - Plaintiff
Dimocks Family Lawyers - First Defendant
No Appearance - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

FRIDAY 27 FEBRUARY 2004

6141/03 CLAUDIO GRIZONIC v SUZANNE RANKEN SUTTOR & ANOR

JUDGMENT – Ex Tempore (Revised 5 March 2004)

1 HIS HONOUR: It is undisputed that the plaintiff and the first defendant were in partnership in a restaurant business…

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 Grizonic v Suttor

Details

AGLC: Grizonic v Suttor [2004] NSWSC 137
Case: [2004] NSWSC 137
Decision Date: 27 February 2004

CaseChat Overview and Summary

The dispute between Grizonic and Suttor was heard in the Family Court of Australia. The parties were in a de facto relationship and had jointly owned a property. Following their separation, the applicants sought an order for the appointment of trustees to sell the property, in accordance with section 66G of the Conveyancing Act 1919. The respondents opposed the application for sale and applied for a stay of the proceedings until the applicants' application to adjust their property interests under the Property (Relationships) Act 1984 could be heard. The primary legal issue before the court was whether the applicants' application for the appointment of trustees for sale should be stayed pending the outcome of the applicants' application to adjust their property interests. The court had to consider the relevant factors in determining whether a stay should be granted, including the merits of the application to adjust property interests, the hardship that would be suffered by either party if the stay were not granted, and the likelihood of the applicants' application to adjust property interests being successful. In deciding whether to grant a stay, the court considered the principles set out in relevant case law. The court held that it was appropriate to grant a stay in this case, as the applicants' application to adjust property interests had reasonable prospects of success, and the respondents would suffer hardship if the sale proceeded before the outcome of that application. The court also noted that the applicants had not demonstrated any urgency in their application for the appointment of trustees for sale, and that there were no significant impediments to the respondents' ability to make their application to adjust property interests within a reasonable time. The court granted the respondents' application for a stay of the proceedings until the outcome of the applicants' application to adjust their property interests under the Property (Relationships) Act 1984. The court made no orders as to costs.

Orders