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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. |
Legislation Cited: | Civil Procedure Act 2005, s 98(4) |
Cases Cited: | C2C Investments Pty Limited & Ors v Commonwealth Bank of Australia (No 4) [2013] NSWSC 761 |
Category: | Procedural and other rulings |
Parties: | Plaintiff: Maria Luz Harvey |
Representation: | Counsel: |
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…
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- Harvey v Barton (No 4) [2015] NSWSC 809
- Case
- [2015] NSWSC 809
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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