Kordell and Van der Linden (No. 2)

This matter concerned an application by Kordell (the husband) and Van der Linden (the executor of the estate of the late wife) regarding the sale of a property jointly owned by the husband and the deceased wife. The dispute centred on the terms and conditions of the sale and the distribution of the proceeds. Justice Stevenson of the Supreme Court of New South Wales was required to determine these matters.

The court was tasked with determining the mechanism for listing and selling the property, including the process for agreeing on a selling price and agent, and the steps to be taken if agreement could not be reached. Furthermore, the court needed to establish the procedure for a sale by public auction if the property remained unsold after a period of private treaty, including the setting of a reserve price and the allocation of auction expenses. Finally, the court was required to order the distribution of the sale proceeds, specifying the priority of payments and the respective shares of the husband and the deceased wife's estate.

Justice Stevenson ordered that the parties forthwith join in the sale of the property, with costs for preparing the home for sale to be borne equally. If the parties could not agree on a selling price or agent within 14 days, these would be appointed by the President of the Australian Property Institute Inc. (NSW Division). Should the property not sell within three months of being listed by private treaty, it was to be sold by public auction within two months thereafter, with a reserve price to be determined by the selling agent if the parties failed to agree within seven days. All auction expenses were to be paid by the parties as requested. Upon completion of the sale, proceeds were to be applied first to legal costs, agent's commission and expenses, then to fees for nomination of a valuer and valuation fees. The remaining balance was to be distributed with 51% to the husband and 49% to the executor of the wife's estate. Additionally, the executor was ordered to pay the husband $3,000 from the wife's share of the proceeds on account of his costs.