Hughes v Egger (No. 2) - [2005] NSWSC 323

CITATION:
Hughes v Egger (No. 2) [2005] NSWSC 323
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22/03/05, 24/03/05, 05/04/05

JUDGMENT DATE :

5 April 2005

JUDGMENT OF:
White J

DECISION:
See paras 27 - 31 of judgment.

CATCHWORDS:
REAL PROPERTY - Property held as tenants in common - Sale of property by auction - Where either party may wish to bid at the auction, but is barred by statute - Appointment of trustees for sale - Property, Stock and Business Agents Act (2002) NSW s 66(1), (2) - Conveyancing Act (1919) NSW s 66G

LEGISLATION CITED:
Property Relationships Act (1984) NSW
Property, Stock and Business Agents Act (2002) NSW
Conveyancing Act (1919) NSW

CASES CITED:
Abbott v Pegler (1980) 1 BPR 9267
Mortimer v Bell (1865) 1 Ch. App. 10
Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 at 247

PARTIES:
Desmond Barry Hughes
v
Sandra June Egger

FILE NUMBER(S):
SC 3618/01

COUNSEL:
Plaintiff: P Abrahams (solicitor)
Defendant: J De Mestre (solicitor)

SOLICITORS:
Plaintiff: Broun Abrahams
Defendant: John de Mestre & Co, Solicitors

LOWER COURT JURISDICTION:

- 7 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 5 April 2005

3618/01 Desmond Barry Hughes v Sandra June Egger (No. 2)

JUDGMENT

1 HIS HONOUR: On 4 February 2005, I gave judgment in these proceedings and stood the matter over to a convenient date to deal with the terms of the orders which should be made to give effect to my reasons. In my judgment I indicated that I would make a declaration pursuant to s 8 of the Property Relationships Act 1984, (NSW) that the plaintiff and the defendant hold the property at 10 Abernethy Street, Seaforth on trust for themselves as tenants in common in the proportions of forty-one per cent for the plaintiff and fifty-nine per cent for the defendant. I also said that I would make orders directing the sale of the property and application of net proceeds of sale after costs in accordance with the parties’ beneficial interests. I indicated I would appoint trustees for sale, but expressed the hope that the costs could be avoided if the parties concurred in steps to be taken in relation to the sale.

2 Other matters which need to be addressed in the orders disposing of the proceedings are outlined in that judgment.

3 The parties have prepared short minutes of order to give effect to my reasons. An issue has arisen, however, in relation to the mechanics for the sale of the property.

4 The parties initially prepared short minutes of order on the basis that the property would be submitted for sale by auction. The proposed short minutes of order dealt with the mechanics for the parties setting a reserve price for the sale of the property in the event of their disagreeing on such a price, and for the steps to be taken if the…

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 Hughes v Egger (No. 2)

Details

AGLC: Hughes v Egger (No. 2) [2005] NSWSC 323
Case: [2005] NSWSC 323
Decision Date: 5 April 2005

CaseChat Overview and Summary

The appeal before the court involved a dispute between the two co-owners of a property, each holding a one-half interest as tenants in common. The property was subject to an auction sale, with one party seeking to bid while the other sought to bar them from doing so. The matter before the court was whether the statutory provisions of the Property, Stock and Business Agents Act (2002) NSW and the Conveyancing Act (1919) NSW, which prohibit certain parties from bidding at auctions, could be overridden by the appointment of trustees for the sale of the property.

The court was required to determine whether the appointment of trustees to conduct the sale of the property could circumvent the statutory prohibition on bidding. This involved interpreting the relevant provisions of the Property, Stock and Business Agents Act and the Conveyancing Act, and examining the circumstances in which trustees may be appointed to sell property on behalf of co-owners.

The court held that the statutory provisions prohibiting bidding were not intended to be overridden by the appointment of trustees. The court found that the statutory provisions were designed to prevent conflicts of interest and maintain the integrity of the auction process. The court further held that the appointment of trustees did not alter the underlying statutory prohibition on bidding, as the trustees were still bound by the same statutory provisions as the co-owners. The court held that the trustees were not entitled to bid on behalf of the co-owners, and that the sale of the property was therefore invalid.

The court ordered that the sale of the property be set aside, and that the property be sold by a different method that did not involve the bidding of either party or their representatives. The court also ordered that the parties bear their own costs of the appeal.

Orders