Legal Research
Cases
Harvey v Barton (No 4)

Harvey v Barton (No 4)

Case [2015] NSWSC 809 17 June 2015

Type to search within this case.

Supreme Court

New South Wales

Case Name:	Harvey v Barton (No. 4)
Medium Neutral Citation:	[2015] NSWSC 809
Hearing Date(s):	17 June 2015
Date of Orders:	17 June 2015
Decision Date:	17 June 2015
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:	The trustees for sale and their solicitors are to recover their costs from the proceeds of the sale of the property. Orders made for the defendant’s share of the proceeds of sale to bear the Trustees’ costs and the Trustees’ solicitors’ costs caused by the defendant’s conduct. Gross sum costs order made under Civil Procedure Act, s 98(4)(c).
Catchwords:	EQUITY – where title to property had been found to be held in unequal shares by plaintiff and defendant – where trustees for sale of property had been appointed – where sale of property hindered by defendant – where costs of trustees and their solicitors associated with sale increased by defendant’s conduct – orders for reimbursement of trustees and their solicitors from proceeds of sale – orders permitting the sale of defendants’ belongings if unclaimed – orders permitting payment into court of defendant’s share of sale proceeds if unclaimed. COSTS – indemnity costs – likelihood of protracted costs assessment – whether a gross sum costs order should be made under Civil Procedure Act, s 98(4)(c).
Legislation Cited:	Civil Procedure Act 2005, s 98(4) Trustee Act 1925, ss 59, 93, 95(1)
Cases Cited:	C2C Investments Pty Limited & Ors v Commonwealth Bank of Australia (No 4) [2013] NSWSC 761 Harvey v Barton [2013] NSWSC 1779 Harvey v Barton [2014] NSWSC 303 Harvey v Barton [2014] NSWSC 1422 Harvey v Barton (No. 2) [2014] NSWSC 1478 Harvey v Barton (No. 3) [2014] NSWSC 1724 Harrison v Schipp [2002] NSWCA 213 Octavo Investments Pty Limited v Knight (1979) 144 CLR 360
Category:	Procedural and other rulings
Parties:	Plaintiff: Maria Luz Harvey Respondent/Defendant: Maria Luz Barton
Representation:	Counsel: Applicants: S. Lipp (for the trustees for sale) Solicitor: First Applicant: Andrew James Barnden Second Applicant: David Kelvin Downey, Downeys Lawyers Plaintiff: L. Critchley, NSW Legal Aid Respondent/Defendant: n/a
File Number(s):	2012/201450
Publication Restriction:	No

EX TEMPORE JUDGMENT

Two motions are before the Court in these proceedings. First, the trustees the Court appointed for the sale of a property in Woolooware, a southern Sydney suburb, seek payment of their professional costs and disbursements for the sale of the property from the sale proceeds. Secondly, the plaintiff seeks orders that the defendant’s share of the sale proceeds bear certain of the costs associated with the sale.

Background

This is my fourth judgment in these proceedings; the earlier judgments being Harvey v Barton [2014] NSWSC 1422; Harvey v Barton (No. 2) [2014] NSWSC 1478; and Harvey v Barton (No. 3) [2014] NSWSC 1724. It is the Court’s sixth judgment in the proceedings, Robb J having given judgment in both Harvey v Barton [2013] NSWSC 1779; and Harvey v Barton [2014] NSWSC 303.
On 6 December 2013, Robb J made declarations and orders in…

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 4)

Details

AGLC: Harvey v Barton (No 4) [2015] NSWSC 809
Case: [2015] NSWSC 809
Decision Date: 17 June 2015

CaseChat Overview and Summary

In Harvey v Barton (No 4), the dispute revolves around the equitable distribution of property sale proceeds between the plaintiff and the defendant, who hold unequal shares in the property. The case was heard in a court that has jurisdiction over equitable matters. The primary legal issues that the court addressed were whether the defendant's actions, which hindered the sale of the property, warranted reimbursement of increased costs incurred by the trustees and their solicitors, and whether an order should be made for the sale of the defendant's belongings if unclaimed. Additionally, the court had to consider whether it should permit the payment of the defendant's share of the sale proceeds into court if unclaimed, and whether a gross sum costs order should be made under the Civil Procedure Act.

The court found that the defendant's conduct significantly hindered the sale process, leading to increased costs for the trustees and their solicitors. Given the defendant's actions, the court ruled that the trustees and their solicitors were entitled to reimbursement from the sale proceeds. Furthermore, the court agreed that if the defendant's belongings remained unclaimed, they could be sold, and similarly, if the defendant's share of the sale proceeds went unclaimed, it could be paid into court. The court also concluded that due to the likelihood of protracted costs assessment, a gross sum costs order under the Civil Procedure Act was appropriate.

As a result of the court's decision, the defendant was ordered to reimburse the trustees and their solicitors from the sale proceeds. Additionally, orders were made permitting the sale of the defendant's belongings if they remained unclaimed, and the payment of the defendant's share of the sale proceeds into court if unclaimed. Finally, an order was made for the defendant to pay the plaintiff's costs on an indemnity basis, with a gross sum costs order under the Civil Procedure Act to cover the anticipated costs of the assessment.

Orders