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James v James (No 2)

James v James (No 2)

Case [2019] NSWSC 116 20 February 2019

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: James & Ors v James (No. 2) [2019] NSWSC 116
Hearing dates: 3 October, 6 and 23 November 2018
Date of orders: 20 February 2019
Decision date: 20 February 2019
Jurisdiction: Common Law
Before: Slattery J
Decision:
Proceedings to remain in the Supreme Court of New South Wales to decide issues of apportionment between co-owners of the Property.

Catchwords:
TRUSTEES - trustees for sale – trustees for sale appointed under the Conveyancing Act 1919, s 66G - dispute between co-owners and trustees concerning the reasonableness of the trustees’ costs, expenses and remuneration – whether particular costs, expenses and remuneration of the trustees should be allowed – no issue as to the honesty of the trustees or the propriety of their incurring the costs in question.
CROSS VESTING – Jurisdiction of Courts (Cross-Vesting) Act 1987, s 6(3) – proceedings between co-owners of property under the Conveyancing Act 1919, s 66G for the appointment of trustees for sale – trustees for sale appointed – disputes arose among the co-owners and between some of the co-owners and the trustees for sale – costs incurred by the trustees for sale in resolving those disputes – delay occasioned in the sale of the property as a result of the disputes – one co-owner made bankrupt after appointment of trustees for sale – property sold - trustees for sale have concluded their work and seek payment of their costs and expenses from the proceeds of sale – the apportionment of the trustees’ costs among the co-owners, including the bankrupt co-owner constitutes a “special federal matter” under the Jurisdiction of Courts (Cross-Vesting) Act 1987 – whether the proceedings should remain in the Supreme Court of New South Wales or be remitted to the Federal Court of Australia or the Federal Circuit Court of Australia under the Jurisdiction of Courts (Cross Vesting) Act – whether there are special circumstances for retaining the matter in the Supreme Court of New South Wales – whether the administration of justice is better served by retaining or transferring the proceedings – how the convenience of the parties should be considered in the exercise of the Court’s discretion under the Jurisdiction of Courts (Cross-Vesting) Act, s 6(3).
Legislation Cited: Bankruptcy Act 1966 (Cth), s 58
Conveyancing Act 1919, s 66G
Jurisdiction of Courts (Cross-Vesting) Act 1987, s 6
Cases Cited: Anson v Anson (2004) 12 BPR 22,303
Beddoe, In re; Downes v Cottam [1893] 1 Ch 547
Bennett, In re; Jones v Bennett [1896] 1 Ch 778
Cordes as Trustee for George v Dr Peter Ironside Pty Ltd [2010] 2 Qd R 235
Coshott v Amirbeaggi [2016] FCA 966
Henry v Hancock [2016] NSWSC 71
Hopkins v Director General of Security [2014] NSWSC 281
In the matter of Galtari Pty Ltd (in liq) [2018] NSWSC 917
James & Ors v James [2018] NSWSC 316
Meriton Apartments Pty Ltd v Industrial Court of New South Wales (2008) 171 FCR 380
Perpetual Trustee Co Ltd…

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 James v James (No 2)

Details

AGLC: James v James (No 2) [2019] NSWSC 116
Case: [2019] NSWSC 116
Decision Date: 20 February 2019

CaseChat Overview and Summary

The case of James v James (No 2) involved a dispute between co-owners and trustees for sale appointed under the Conveyancing Act 1919. The property in question was sold, and the trustees sought to recover their costs and expenses from the proceeds of sale. The co-owners contested the reasonableness of the trustees’ costs and expenses, and the matter also involved a bankrupt co-owner. The Supreme Court of New South Wales had to determine whether the proceedings should be retained in the state court or remitted to a federal court under the Jurisdiction of Courts (Cross-Vesting) Act 1987. The court had to consider the administration of justice, the convenience of the parties, and whether there were special circumstances justifying retention of the matter in the Supreme Court.

The primary legal issues were whether the costs, expenses, and remuneration of the trustees were reasonable and should be allowed, and whether the proceedings should remain in the Supreme Court of New South Wales or be transferred to a federal court. The court had to assess the reasonableness of the trustees' actions and the impact of the disputes on the sale of the property. Additionally, the court needed to consider the statutory provisions governing cross-vesting jurisdiction and determine whether there were special circumstances that warranted retaining the matter in the Supreme Court.

The Supreme Court of New South Wales held that the proceedings should remain in the state court. The court found that the trustees had acted honestly and that the propriety of their incurring the costs was not in question. The court considered the administration of justice and the convenience of the parties, concluding that the special circumstances and the nature of the disputes did not necessitate a transfer to a federal court. The court exercised its discretion under the Jurisdiction of Courts (Cross-Vesting) Act, s 6(3), to retain the matter in the Supreme Court.

The court ordered that the trustees' costs and expenses were to be apportioned among the co-owners, including the bankrupt co-owner. The court found that the trustees were entitled to be paid from the proceeds of sale for their reasonable costs and expenses incurred in resolving the disputes and delaying the sale. The court's decision upheld the trustees' entitlement to remuneration while also considering the equitable treatment of all parties involved in the property sale.

Orders