Lubke v Nassir
[2025] NSWSC 796
•17 July 2025
Supreme Court
New South Wales
Medium Neutral Citation: Lubke v Nassir [2025] NSWSC 796 Hearing dates: 17 July 2025 Date of orders: 17 July 2025 Decision date: 17 July 2025 Jurisdiction: Equity - Real Property List Before: Pike J Decision: (1) Order that Andrew Barnden and Stefan Psaltis (Trustees) be appointed trustees for sale of the land comprised in folio identifier Lot X of section X in deposited plan X and known as X McCredie Road, Guildford West, New South Wales, 2161 (Property).
(2) Order that the Property be vested in the Trustees subject to any encumbrances affecting the entirety of the Property but free from any encumbrances affecting any undivided share or shares therein, to be held by the Trustees upon the statutory trust for sale under Div 6 of Pt(IV) of the Conveyancing Act 1919 (NSW).
(3) Order that the Trustees cause the Property to be sold by private treaty or by auction.
(4) Order that the Trustees may, at their discretion, appoint a real estate agent for the sale of the Property.
(5) Order that each of the plaintiff and the defendant is entitled to purchase the Property whether at auction or otherwise without payment of deposit.
(6) Order that Andrew Barnden is authorised to charge at a rate not exceeding $615 per hour (exclusive of GST) for professional fees and disbursements, such fees and disbursements not to exceed $11,000 (inclusive of GST).
(7) Order that Stefan Psaltis is authorised to charge at a rate not exceeding $600 per hour (exclusive of GST) for professional fees and disbursements, such fees and disbursements are not to exceed $5,500 (inclusive of GST).
(8) Order that the Trustees are authorised to deduct all such expenses from the proceeds of sale.
(9) Order that the Trustees may retain, as required, independent legal representation and any other third party agent in their capacity as Trustees for the sale of the Property as may arise and that such costs be paid out of the proceeds of sale of the Property.
(10) Order that the Trustees pay out of the proceeds of sale of the Property:
(a) the Trustees’ professional fees and disbursements;
(b) council rates, water rates, and any other rates, taxes or duties in relation to the Property;
(c) any real estate agent commission and charges;
(d) any legal fees.
(11) Order that the Trustees pay the net proceeds from the sale of the Property, after payment of the matters set out in the preceding order, into court.
(12) Grant liberty to apply to the parties and the Trustees on three days’ notice setting out the relief sought, including in respect of the execution of the statutory trust for sale.
(13) List the proceedings for further directions in the Real Property List on 17 October 2025.
(14) Stay the operation of the orders set out above for a period of 28 days.
(15) Direct the solicitor for the plaintiff to notify the defendant at the email address specified in the notice of ceasing to act filed 23 June 2025 of the orders made.
(16) Costs be reserved.
Catchwords: CIVIL PROCEDURE – appearance – no appearance at hearing – where defendant afforded ample opportunity to attend and be heard – whether appropriate to proceed with hearing – no question of principle
LAND LAW – co-ownership – statutory trust for sale – application by plaintiff under Conveyancing Act 1919 (NSW) s 66G – trustees for sale appointed – no question of principle
Legislation Cited: Conveyancing Act1919 (NSW), s 66G
Uniform Civil Procedure Rules 2005 (NSW), rr 29.7, 36.16
Cases Cited: Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411
Foundas v Arambatzis [2020] NSWCA 47
Take Off Opportunities Pty Ltd as Trustee for The Clear Runway Trust v Susan Quinn Pty Ltd as Trustee for the Susan Amelia Quinn Trust [2025] NSWSC 231
Texts Cited: Nil
Category: Principal judgment Parties: Madeleine Lubke (plaintiff)
Atheer J Nassir (defendant)Representation: Counsel:
Solicitors:
D C Eardley
P J Carey Solicitors
File Number(s): 2024/00295405 Publication restriction: Nil
JUDGMENT (EX TEMPORE REVISED FROM TRANSCRIPT)
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By summons filed on 12 August 2024, the plaintiff (Ms Lubke) seeks orders pursuant to s 66G of the Conveyancing Act 1919 (NSW) (the Act) that trustees for sale of the property known as X McCredie Road, Guildford West in New South Wales, 2161, commonly being the land described in folio identifier Lot X of section X in deposited plan X (the Property) be appointed.
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When the matter was called on for hearing this morning, there was no appearance on behalf of the defendant (Mr Nassir). Notwithstanding this, having regard to the procedural history of the matter, which I will briefly outline below, I was satisfied that it is appropriate to continue with the hearing today: see Uniform Civil Procedure Rules 2005 (NSW) r 29.7 (UCPR).
Procedural History
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As set out above, these proceedings were commenced on 12 August 2024.
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On 10 September 2024, a notice of appearance by a solicitor was filed on behalf of Mr Nassir.
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The proceedings have been before the Court on a number of occasions. Relevantly, on 12 September 2024, Williams J made orders by consent requiring the defendant to file and serve any affidavit evidence by 11 October 2024 and otherwise required the parties to participate in a formal mediation with a private mediator.
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On 28 November 2024, a notice of ceasing to act was filed by the solicitor previously acting for Mr Nassir. New solicitors then came on the record for Mr Nassir. On 6 December 2024, Peden J was advised by counsel for the plaintiff that there had been a change in the representation of the defendant in the few days prior to 6 December 2024, but that the matter is very close to settling. The matter was stood over to 14 February 2025.
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On 13 February 2025, I made orders in chambers vacating the listing on 14 February 2025 and listing the matter for directions on 14 March 2025. This was in circumstances where I was told that a settlement deed had been proposed by Mr Nassir to Ms Lubke for resolution of the proceedings.
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On 14 March 2025, I made orders by consent standing the proceedings over to 28 March 2025. On that day, there was an appearance by the solicitor for Mr Nassir who advised me that the adjournment was required to finalise the deed of settlement.
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On 28 March 2025, I made further orders for Ms Lubke to file and serve any further affidavits by 11 April 2025 and for Mr Nassir to file and serve any evidence in reply by 9 May 2025. On that occasion, the solicitor appearing for Mr Nassir simply sought an adjournment on the basis that they believed that they were close to finalising the deed of settlement.
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Further affidavit evidence was filed on behalf of Ms Lubke pursuant to that order but no evidence was filed on behalf of Mr Nassir. No evidence has been filed at any time on behalf of Mr Nassir.
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On 16 May 2025, the matter was again before me for directions. Relevantly, on that occasion, I made an order for Mr Nassir to file and serve evidence by 25 June 2025, for Ms Lubke to file and serve any evidence in reply by 9 July 2025, and for the matter to be listed for directions on 11 July 2025.
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On 16 June 2025, the solicitors for Mr Nassir filed a notice of intention to file a notice of ceasing to act. On 23 June 2025, the solicitors for Mr Nassir filed a notice of ceasing to act.
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The matter was listed for directions on 11 July 2025 before the Chief Judge in Equity. On that occasion, there was no appearance by or on behalf of Mr Nassir. His Honour made orders listing the matter for hearing before me at 10am this morning.
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On 16 July 2025, my associate wrote, shortly before 12pm to the solicitor for Ms Lubke putting the solicitor for Ms Lubke on notice that, when the matter was before the Court today, I would wish to be informed as to whether Mr Nassir is on notice that the proceedings are listed for final hearing today.
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When the matter was called on for hearing this morning, I raised with counsel for Ms Lubke whether Mr Nassir was on notice that the matter is listed for final hearing today. Counsel for Ms Lubke sought a short adjournment in order to obtain some instructions and any evidence in relation to that matter.
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When the matter was resumed, counsel for Ms Lubke tendered an email from Ms Lubke’s solicitor to Mr Nassir sent at 12.15pm yesterday notifying him that the matter is in Court “tomorrow”. One of the email addresses to which that email was sent was the email address for Mr Nassir that was included in the notice of ceasing to act filed by the former solicitors for Mr Nassir in late June 2025.
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In these circumstances, I am satisfied that Mr Nassir is on notice that the proceedings are listed today. It is regrettable that this notice was only given yesterday and, I would infer, after my chambers had raised the issue with Ms Lubke’s solicitor. In any event, it seems reasonably clear, having regard to the procedural history above, that Mr Nassir has been well and truly on notice of the proceedings and that if he wishes to file any evidence in opposition to the relief sought in the summons, he should do so. Several directions have been made for Mr Nassir to file and serve any evidence on which he proposes to rely and no evidence has been filed. I am also conscious of the limited circumstances where an order for appointment of trustees for sale may be refused.
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Against the possibility that Mr Nassir does wish to oppose any order for judicial sale, I propose to stay the orders that I make for a period of 28 days to allow Mr Nassir to consider whether he wishes to oppose the orders and, if he does, to make an application to set them aside.
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Having regard to the matters set out above, I am satisfied that I should proceed with the hearing. The authorities in this regard were recently summarised by Griffiths AJ in Take Off Opportunities Pty Ltd as Trustee for The Clear Runway Trust v Susan Quinn Pty Ltd as Trustee for the Susan Amelia Quinn Trust [2025] NSWSC 231 at [7]-[18]. As Griffiths AJ pointed out at [15], UCPR r 36.16(2)(b) empowers the Court to set aside or vary a judgment or order after it has been entered if it has been given or made in the absence of a party.
The Relevant Evidence
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The relevant evidence may shortly be summarised as follows.
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On 3 December 2016, the Property was purchased. Ms Lubke and Mr Nassir are recorded on the title to the Property as joint tenants.
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Ms Lubke gives evidence that the Property is currently mortgaged with the Commonwealth Bank of Australia and that she has at all times paid the mortgage payments on the Property. She wishes for the Property to be sold.
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Evidence has been filed in the usual form by the proposed trustees for sale, consenting to their appointment, together with the usual evidence from referees in that regard.
Determination
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I am satisfied that the plaintiff and the defendant are relevantly co-owners for the purposes of s 66G of the Act.
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It is clear that a co-owner within the meaning of s 66G of the Act is entitled to orders for the appointment of trustees for sale “almost as of right” unless it would be inequitable to allow the application: See Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 at [38]. See also what was said by the Court of Appeal in Foundas v Arambatzis [2020] NSWCA 47 at [63].
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In my view, there is nothing in the material put before me that would provide any basis for the Court not to exercise its discretion for trustees for sale to be appointed.
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I am therefore satisfied that orders should be made. I am satisfied that the proposed trustees should be appointed.
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It is not clear at the moment whether there will be any dispute in relation to how any net proceeds of sale should be divided between Ms Lubke and Mr Nassir. In my view, the appropriate order in those circumstances is for the net proceeds to be paid into court. The matter can then be mentioned and if consent orders cannot be made in relation to the division of the net proceeds - assuming that Mr Nassir takes an active role at that time - then orders can be made by the Court for any dispute to be determined in the most efficient way.
Orders
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For the reasons set out above, the orders of the Court are as follows:
Order that Andrew Barnden and Stefan Psaltis (Trustees) be appointed trustees for sale of the land comprised in folio identifier Lot X of section X in deposited plan X and known as X McCredie Road, Guildford West, New South Wales, 2161 (Property).
Order that the Property be vested in the Trustees subject to any encumbrances affecting the entirety of the Property but free from any encumbrances affecting any undivided share or shares therein, to be held by the Trustees upon the statutory trust for sale under Div 6 of Pt(IV) of the Conveyancing Act 1919 (NSW).
Order that the Trustees cause the Property to be sold by private treaty or by auction.
Order that the Trustees may, at their discretion, appoint a real estate agent for the sale of the Property.
Order that each of the plaintiff and the defendant is entitled to purchase the Property whether at auction or otherwise without payment of deposit.
Order that Andrew Barnden is authorised to charge at a rate not exceeding $615 per hour (exclusive of GST) for professional fees and disbursements, such fees and disbursements not to exceed $11,000 (inclusive of GST).
Order that Stefan Psaltis is authorised to charge at a rate not exceeding $600 per hour (exclusive of GST) for professional fees and disbursements, such fees and disbursements are not to exceed $5,500 (inclusive of GST).
Order that the Trustees are authorised to deduct all such expenses from the proceeds of sale.
Order that the Trustees may retain, as required, independent legal representation and any other third party agent in their capacity as Trustees for the sale of the Property as may arise and that such costs be paid out of the proceeds of sale of the Property.
Order that the Trustees pay out of the proceeds of sale of the Property:
the Trustees’ professional fees and disbursements;
council rates, water rates, and any other rates, taxes or duties in relation to the Property;
any real estate agent commission and charges;
any legal fees.
Order that the Trustees pay the net proceeds from the sale of the Property, after payment of the matters set out in the preceding order, into court.
Grant liberty to apply to the parties and the Trustees on three days’ notice setting out the relief sought, including in respect of the execution of the statutory trust for sale.
List the proceedings for further directions in the Real Property List on 17 October 2025.
Stay the operation of the orders set out above for a period of 28 days.
Direct the solicitor for the plaintiff to notify the defendant at the email address specified in the notice of ceasing to act filed 23 June 2025 of the orders made.
Costs be reserved.
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Decision last updated: 21 July 2025
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