Haley v Perkins (No 2) - [2011] NSWSC 597

Supreme Court

New South Wales

Medium Neutral Citation: Haley v Perkins (No 2) [2011] NSWSC 597
Hearing dates: 17 June 2011
Decision date: 29 June 2011
Before: Hallen AsJ
Decision:
1. Order that:
(a) pursuant to s 38(1)(g) of the Property Relationships Act 1984 and s 70(1) and (2) of the Trustee Act 1925 that Henry Kazar be appointed as Trustee for the sale of the Property comprised in Certificate of Title Folio Identifier ### together with all improvements erected thereon and being the property known as "Bimbimbie" ("the Property").
(b) the Property be vested in the Trustee subject to any encumbrances affecting the entirety thereof, to be held by the Trustee upon trust for sale.
(c) the Trustee have power to take, or obtain, possession of the Property in order to give vacant possession to a purchaser.
(d) the Defendant deliver to the Trustee all the documents of title within his possession for the Property within fourteen (14) days from the date of service of these Orders upon him.
(e) grant leave, under s 66I of the Conveyancing Act 1919, for the Defendant to bid for, or buy, the Property setting off, or accounting, for the purchase money instead of paying the same so far as appropriate and taking into account the payments required to be made.
(f) the Trustee, on completion of the sale, shall distribute the proceeds of sale of the Property in the following manner:
(i) In payment and discharge of all mortgages and other encumbrances registered on the title to the Property;
(ii) In payment of the Trustee's commission and costs for time in attendance up to completion of the sale;
(iii) In payment of the other costs of sale including, but not limited to, legal costs, advertising costs and agent's commission;
(iv) In payment of expenses, if any, incurred by the Trustee for the purpose of bringing the Property up to a condition which would facilitate sale;
(v) In payment of all rates, taxes and insurance and other outgoings on the Property;
(vi) In payment of $50,000, together with interest accrued thereon, calculated at the rates prescribed by s 101 of the Civil Procedure Act 2005 on unpaid judgments from 27 October 2010 to the date of payment to the Plaintiff;
(vii) In payment of the Plaintiff's costs of the proceedings and of this application; and, if those costs have not been agreed upon, or assessed, then the Trustee should retain no less than the Plaintiff's solicitor's reasonable estimate of those costs, calculated on the ordinary basis until such time as the costs have been agreed upon or assessed;
(viii) The payment of the balance to the Defendant, in the event that he is not the purchaser.
(g) the Trustee shall be at liberty to execute any and all necessary conveyance, or other documents, and to do all such things as are necessary to enable the compliance with, and the performance of, these Orders.
(h) grant the parties, and the Trustee, liberty to restore…

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 Haley v Perkins (No 2)

Details

AGLC: Haley v Perkins (No 2) [2011] NSWSC 597
Case: [2011] NSWSC 597
Decision Date: 29 June 2011

CaseChat Overview and Summary

In the matter of Haley v Perkins (No 2), the parties were engaged in a dispute concerning the appointment of a trustee for the sale of certain property. The proceedings took place in the Supreme Court of South Australia, reflecting a significant legal battle over property rights. The case primarily revolved around the obligations of the defendant, Perkins, under the Property (Relationships) Act, specifically concerning their failure or omission to comply with orders made in previous substantive proceedings.

The primary legal issues before the court were whether the defendant's actions constituted a failure to comply with the court's orders and if so, what the appropriate legal consequences should be. The court had to consider the extent of the defendant's obligations under the Property (Relationships) Act, and whether their failure to act warranted specific enforcement measures or other remedies.

The court found that the defendant had indeed failed to comply with the orders made in the substantive proceedings. The judge detailed the specific orders that the defendant had neglected to fulfil, including the appointment of a trustee for the sale of the property. The court emphasised that the defendant's non-compliance was both deliberate and ongoing, which exacerbated the breach. Consequently, the court concluded that the defendant's failure was a clear violation of the statutory obligations imposed by the Property (Relationships) Act. As a result, the court ruled in favour of the plaintiff, Haley, and appointed a trustee for the sale of the property as mandated by the previous orders.

Orders