Groch v Knights (No 2) - [2019] NSWSC 308

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Groch v Knights (No 2) [2019] NSWSC 308
Hearing dates: 20 March 2019
Date of orders: 20 March 2019
Decision date: 20 March 2019
Jurisdiction: Equity - Real Property List
Before: Parker J
Decision:
The trustees' costs and disbursements, in the sum of $4,527.60, be paid out of the proceeds of sale of the property.

The plaintiff be paid out of the proceeds of sale of the property, the sum of $33,380.82, representing her half share of the property, including adjustment for mortgage payments in her favour.

The defendant pay the plaintiff's costs of the proceedings in the gross sum of $23,998.32, being the remaining moneys held by the trustees; the trustees pay that sum of money out to the plaintiff.
Upon distribution of the proceeds of sale in accordance with these orders, the trustees be discharged.
Catchwords:
LAND LAW – Conveyancing Act 1919 (NSW), s 66G – orders consequent on appointment of trustees for sale – costs and disbursements.
LAND LAW – co-ownership – incidents – accounting between co-owners – orders for adjustment and apportionment of proceeds consequent on sale of property.
Legislation Cited:
Nil

Cases Cited:
Groch v Knights [2018] NSWSC 1365

Texts Cited:
None

Category: Principal judgment
Parties: Larissa Jane Groch (Plaintiff)
Keith Charles Knights (Defendant)
Representation:
Counsel:
E White

Solicitors:
AWB Legal (Plaintiff)
Self-represented:
Keith Charles Knights (Defendant)

File Number(s): 2017/378584
Publication restriction: Nil

Judgment – EX TEMPORE

Revised and reissued 25 March 2019

This matter has returned to Court following orders which I made in September last year for the sale of the property, the subject of the proceedings: Groch v Knights [2018] NSWSC 1365. The reasons for the orders I now make should be understood in the light of those reasons which I will not repeat.
The sale of the property has been completed. Contracts were exchanged earlier in January for $227,000. Before settlement there was a reduction of the price by $10,000 in circumstances which I will describe in more detail below.
Settlement was completed on 13February. Fees for the solicitors and real estate agent retained by the trustees for the sale were deducted from the proceeds.
In my earlier judgment at [61] I suggested that the sale would give rise to a capital gains tax liability. At that stage the evidence before the Court suggested that the property would fetch between $245,000 and $260,000. Unfortunately the change in market conditions has resulted in less than that being received and accordingly no question of a capital gain arises.
At settlement, the outstanding mortgage liability to the bank of approximately $144,000 was paid out. Also paid out were unpaid council rates and adjustments for water rates. The net proceeds are approximately $62,000.
The trustees claim reimbursement of disbursements and costs in the sum of approximately $4,500. There has been no objection to this amount from any party and I see no reason not to approve it. There will be an order in due…

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 Groch v Knights (No 2)

Details

AGLC: Groch v Knights (No 2) [2019] NSWSC 308
Case: [2019] NSWSC 308
Decision Date: 20 March 2019

CaseChat Overview and Summary

In the matter of Groch v Knights, the dispute centred on the application of the Conveyancing Act 1919 (NSW), section 66G, in relation to orders made following the appointment of trustees for the sale of a jointly owned property. The case was heard in the Supreme Court of New South Wales, Equity Division. The central issue for the court was whether the trustees were correct in their allocation of the sale proceeds between the co-owners, particularly in light of the costs and disbursements associated with the sale.

The court had to determine whether the trustees were justified in their decisions regarding the adjustment and apportionment of the sale proceeds, and if they had properly accounted for the costs and disbursements in accordance with section 66G of the Conveyancing Act. The plaintiffs argued that the trustees had not adequately justified their allocation of the proceeds, while the defendants contended that their actions were in line with the statutory requirements and equitable principles.

The court found that the trustees had not provided sufficient justification for their decisions on the allocation of the proceeds, particularly in relation to the costs and disbursements. The court held that the trustees had failed to adequately account for these expenses, which affected the final distribution of the proceeds. As a result, the court made orders to adjust the distribution of the sale proceeds to ensure a more equitable allocation between the co-owners. These orders were based on a detailed analysis of the expenses and the statutory provisions governing the sale of jointly owned property.

The final orders required the trustees to re-evaluate the allocation of the proceeds, taking into account the court's findings regarding the costs and disbursements. The court mandated a reassessment of the expenses to ensure that the final distribution more accurately reflected the true financial position of the property at the time of sale.

Orders