Harris v Harris - [2014] NSWSC 1766

Supreme Court

New South Wales

Medium Neutral Citation: Harris v Harris [2014] NSWSC 1766
Hearing dates: 28 November 2014
Decision date: 11 December 2014
Jurisdiction: Equity Division
Before: Rein J
Decision:
See [26].

Catchwords: EQUITY - Property - Application under section 66G of the Conveyancing Act - Application for appointment of trustees of sale prior to final hearing - Where the party resisting sale contends that the co-owner holds his share of the property on trust for the party resisting sale - Where the defendant seeks to obtain by way of interlocutory application the final relief sought in his cross-claim
Legislation Cited: Conveyancing Act 1919 (NSW)
Cases Cited: Callaghan v O'Neill [2002] NSWSC 877
Juratowitch v Quitlong [2012] NSWSC 1374
Pascoe v Dyason [2011] NSWSC 1217
Payne v Rowe [2012] NSWSC 685
Re Fettell (1952) 52 SR (NSW) 227
Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068
Ryan v Dries [2002] NSWCA 3
Segal v Barel [2013] NSWCA 92; 84 NSWLR 193
Stone v Stone [2014] NSWSC 1655
Tory v Tory [2007] NSWSC 1078
Trustees of the Property of Zoltan Sandor, a bankrupt v Ramirez [1999] NSWCA 261
Williams v Legg (1993) 29 NSWLR 678
Category: Interlocutory applications
Parties: Lesley Harris (Plaintiff/Cross-Defendant)
Michael Anthony Harris (Defendant/Cross-Claimant)
Representation: Counsel:
R W Tregenza (Plaintiff)
J S Drummond (Defendant)
Solicitors:
Tsolakis Solicitors (Plaintiff)
Heckenberg Lawyers (Defendant)

File Number(s): 2013/378863

Judgment

By Notice of Motion filed 10 November 2014, the defendant Michael Harris ("Michael") seeks the appointment of trustees for sale of the property at 290 Belmont Street, Alexandria ("the Property"), pursuant to s 66G of the Conveyancing Act 1919 (NSW).

I will briefly outline the background to the broader dispute, to provide context to Michael's application.

Background

Lesley Anne Harris ("Lesley") is Michael's sister. On 2 August 1985, Lesley and her former de facto partner, Frank de Silva ("Frank"), purchased the Property for the sum of $58,000. The purchase price was comprised of $50,000 borrowed from Advance Bank, and a deposit of $8,000 contributed directly by Lesley and Frank.

Lesley and Frank had a child together ("Shaun"), but terminated their relationship shortly thereafter, in or about October 1985. Frank left the property and Lesley and Shaun continued to live there and still do.

Frank insisted on selling the property, or being removed from the title. It is common ground that Lesley did not meet the lending criteria for a new loan from Advance Bank on her single income.

Lesley and Michael reached an agreement in which, by transfer dated 8 September 1986, Lesley and Michael became the registered proprietors of the Property as tenants in common in equal shares. I think it is agreed that Michael paid the legal fees incurred by the solicitors acting on the transfer in the sum of $967.30, although Lesley sent a cheque to those solicitors which was returned: see MAH1, p 21.

Frank was paid the sum of $3,700 being one half share of the equity contribution by Frank to the original purchase…

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 Harris v Harris

Details

AGLC: Harris v Harris [2014] NSWSC 1766
Case: [2014] NSWSC 1766
Decision Date: 11 December 2014

CaseChat Overview and Summary

In the case of Harris v Harris, the applicants sought an order for the appointment of trustees of sale of a property prior to the final hearing of the proceeding. The applicants, who were parties to a family relationship, had purchased a property jointly but later fell out. The applicants sought an order for sale of the property, while the respondents sought to resist the sale. The court was required to consider whether the applicants were entitled to the appointment of trustees of sale prior to the final hearing, given that the respondents contended that the applicants held their share of the property on trust for the respondents.

The court considered the relevant legal principles and statutory provisions in making its decision. The court noted that under section 66G of the Conveyancing Act, an order for the sale of property could only be made if the court was satisfied that the party seeking the sale had a right to the sale and that the sale was just and convenient. The court also noted that the respondents' contention that the applicants held their share of the property on trust for the respondents was a matter to be decided at the final hearing of the proceeding and could not be determined at the interlocutory stage. The court held that the applicants were not entitled to the appointment of trustees of sale prior to the final hearing, as the respondents had raised a genuine issue as to the existence of a trust over the applicants' share of the property.

The court made an order that the application for the appointment of trustees of sale be dismissed. The court noted that the dismissal of the application did not prejudice the applicants' right to seek the appointment of trustees of sale at the final hearing, should they be successful in establishing their right to the sale of the property. The court also noted that the dismissal of the application did not prevent the applicants from pursuing other remedies available to them in the proceeding. Overall, the court held that the applicants had not satisfied the requirements for the appointment of trustees of sale prior to the final hearing.

Orders