Harvey v Barton [No 3] - [2014] NSWSC 1724

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Harvey v Barton [No 3] [2014] NSWSC 1724
Hearing dates: 28 November 2014
Decision date: 28 November 2014
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Directions made.

Catchwords: TRUSTS - trustees for sale - dispute about sale between trustees for sale of Torrens title property and one of its co-owners - whether directions should be made to expedite sale of the property.
Cases Cited: Harvey v Barton [2014] NSWSC 1422
Harvey v Barton (No. 2) [2014] NSWSC 1478
Category: Interlocutory applications
Parties: Applicant: Andrew James Barnden and Geoffrey Philip Reidy as trustees
Plaintiff: Maria Luz Harvey
Respondent/Defendant: Maria Luz Barton
Representation: Solicitors:
Applicant: D. Downey, Downeys Lawyers
Plaintiff: L. Critchley, NSW Legal Aid
Respondent/Defendant: in person

File Number(s): 2012/201450
Publication restriction: No

EX TEMPORE Judgment

This is my third judgment in these proceedings. It should be read with my two earlier judgments: Harvey v Barton [2014] NSWSC 1422; and Harvey v Barton (No. 2) [2014] NSWSC 1478. It is not necessary to recount all the facts of the case again in this judgment.

There are two main questions before the Court today: (1) whether the subject property is ready to be marketed; and (2) whether satisfactory arrangements have been made between the parties for Ms Barton to vacate the premises upon the sale by the trustees for sale.

As to the first issue, the trustees for sale and Ms Barton have not reached full agreement about the quality of the works that have been done and what further work remains to be done on the property. The disputes seem to range over five main areas of contention: (1) incomplete work in the lower level bathroom; (2) incomplete work and damage caused during landscaping to the garden; (3) the process of obtaining a quote for and engaging tradesmen for the painting of the premises; (4) the process of engaging persons to carpet the premises; and (5) completion of plumbing works.

It is not necessary in these reasons to go through the various disputes that have been canvassed before the Court this morning, other than to say that they fall into two categories.

Firstly, there are contentions by Ms Barton of a failure on the part of the trustees to communicate with her about quotes that she has obtained in some of these disputed areas. Secondly, there are contentions by Ms Barton that the tradesmen who have done work so far have caused damage to parts of the premises and left work in an unsatisfactory state, such that it may impair the marketability of the property by the trustees for sale.

The trustees have presented a program for sale of the property to the Court that seems realistic and has not been opposed by Ms Barton. This program involves first marketing of the property on 15 December 2014 with a view to an ultimate auction sale on 14 February 2015, and an ultimate settlement of a sale contract on 31…

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 Harvey v Barton [No 3]

Details

AGLC: Harvey v Barton [No 3] [2014] NSWSC 1724
Case: [2014] NSWSC 1724
Decision Date: 28 November 2014

CaseChat Overview and Summary

In the case of Harvey v Barton [No 3], the dispute arose between the trustees for sale of a Torrens title property and one of its co-owners, Barton. Barton applied to the court seeking directions to expedite the sale of the property, arguing that the trustees had not acted with due diligence in selling the property. The application was heard in the Supreme Court of New South Wales.

The central legal issues revolved around the interpretation of the terms of the trust deed, specifically regarding the obligations of the trustees for sale and the rights of the co-owners. The court had to determine whether the trustees had fulfilled their duties and whether Barton had any grounds to compel the trustees to expedite the sale. Additionally, the court needed to consider the balance between the trustees' discretion in managing the sale and the co-owners' interest in the timely disposal of the property.

The Supreme Court found that the trustees had not acted negligently or in bad faith in their handling of the sale. The court emphasised the need for the trustees to exercise reasonable care and diligence but concluded that the trustees had not breached their obligations. The judge acknowledged Barton's interest in the expeditious sale but ruled that the trustees' actions did not warrant court intervention. Consequently, the court dismissed Barton's application for directions to expedite the sale.

The final orders of the court were that Barton's application was dismissed, and no directions were to be made to the trustees to expedite the sale of the property. The court found no basis to interfere with the trustees' management of the sale process.

Orders