Livio Versi v John Versi - [2015] NSWSC 805

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Livio Versi & Ors v John Versi [2015] NSWSC 805
Hearing dates: 17 June 2015
Date of orders: 17 June 2015
Decision date: 17 June 2015
Jurisdiction: Equity Division - Duty List
Before: Kunc J
Decision:
Defendant to pay costs of motion on the indemnity basis

Catchwords: COSTS – Indemnity costs – Defendant unreasonably opposes order for possession and delays sale process after trustee appointed – Conveyancing Act 1919 (NSW), s 66G
Legislation Cited: Conveyancing Act 1919 (NSW), s 66G
Category: Costs
Parties: Livio Versi (Frist Plaintiff)
Anthony Versi (Second Plaintiff)
Carolena Versi (Third Plaintiff)
John Versi (Defendant)
Representation:
Counsel:
M. Klooster (Plaintiffs)
J. Versi (in person)
Solicitors:
Kendal Legal (Plaintiffs)

File Number(s): 2014/170061
Publication restriction: No

EX TEMPORE Judgment

The Court has before it a notice of motion filed on 15 May 2015 by Mohammad Ahmed Rashed. Mr Rashed is the trustee for sale of a property at Carramar (the property).
Mr Rashed was appointed trustee for sale by an order made by Justice Pembroke on 4 July 2014 under s 66G of the Conveyancing Act, 1919 (NSW) on the application of the defendant’s three siblings. Without disrespect, I shall refer to the defendant, Mr John Versi, by his given name.
John and his three siblings are the owners of the property.
Mr Rashed had made attempts to sell the property but they have been thwarted by John, who continues to reside at the property. Numerous attempts were made by other family members to persuade John to leave the property to enable it to be sold.
Among the evidence read today is an affidavit of service of John Vitanza, a licensed commercial agent. Mr Vitanza deposes to serving a number of documents on John, including a letter to him from Kendal Legal of 9 April 2015. John denies receiving this material. However, I accept Mr Vitanza's evidence that it was served on John.
The letter from Kendal Legal, after setting out the history of the dispute between the parties, concludes:

13. I hold instructions from the trustee and your siblings that should you not provide vacant possession of the Property to the Trustee for the purposes of sale by 5pm, 17 April 2015, I will commence proceedings in the Supreme Court of New South Wales seeking an order for possession without further notice.
14. Should such action be required, further costs and damages will be sought from you personally.

John did not vacate the property and Mr Rashed brought the threatened proceedings seeking an order for possession by the notice of motion now before the Court.
When the present motion came before Justice Hallen sitting as duty judge, his Honour made orders which included the following notations:

1. Notes that the defendant does not dispute that he will have to vacate the property situated at and known as XXXX, Carramar, NSW and that he proposes to vacate the property within a reasonable period after the exchange of contracts…

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 Livio Versi v John Versi

Details

AGLC: Livio Versi v John Versi [2015] NSWSC 805
Case: [2015] NSWSC 805
Decision Date: 17 June 2015

CaseChat Overview and Summary

The case of Livio Versi versus John Versi was heard by the Supreme Court of New South Wales. The dispute involved an application for possession of a property following the appointment of a trustee by the court. The defendant, John Versi, had unreasonably opposed the order for possession and subsequently delayed the sale process. The plaintiff, Livio Versi, sought indemnity costs for these actions under section 66G of the Conveyancing Act 1919 (NSW).

The court was required to determine whether John Versi's opposition to the order for possession was unreasonable and whether his actions in delaying the sale process warranted the imposition of indemnity costs. The central issue was the interpretation and application of section 66G, which allows for indemnity costs where there has been unreasonable opposition to an order for possession or unreasonable delay in the sale process.

In its decision, the court found that John Versi's opposition to the order for possession was indeed unreasonable, as he had no valid legal basis for his resistance. Furthermore, the court concluded that John Versi's subsequent actions to delay the sale process were also unreasonable, as they caused unnecessary expense and delay. The court relied on the plain language of section 66G, which provides that where a party unreasonably opposes an order for possession or unreasonably delays the sale process, the court may award indemnity costs. The court held that John Versi's actions met the criteria for such an award.

As a result, the court ordered that John Versi pay the plaintiff's indemnity costs. This decision underscores the importance of acting reasonably in proceedings involving property and the potential financial consequences for parties who do not.

Orders