Lubke v Nassir - [2025] NSWSC 796

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…

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 Lubke v Nassir

Details

AGLC: Lubke v Nassir [2025] NSWSC 796
Case: [2025] NSWSC 796
Decision Date: 17 July 2025

CaseChat Overview and Summary

The plaintiff, Lubke, sought an order for sale of jointly owned property pursuant to section 66G of the Conveyancing Act 1919 (NSW). The defendant, Nassir, did not appear at the hearing despite being notified of the application and the date of the hearing. The matter was heard in the Supreme Court of New South Wales. The primary legal issue was whether the court could proceed with the hearing in the absence of the defendant, who had been given sufficient opportunity to attend and be heard. Additionally, the court had to determine if there were any questions of principle that precluded the court from making the order.

The court found that the defendant had been afforded ample opportunity to appear and be heard but chose not to do so. Given that there was no question of principle involved, the court proceeded with the hearing in the defendant's absence. The court emphasised that the absence of the defendant did not impede the court's ability to consider the application on its merits, particularly as there were no substantive legal arguments presented by the defendant that required rebuttal. The court held that in the circumstances, it was appropriate to make the order for sale as requested by the plaintiff.

The court ordered that trustees for sale be appointed for the jointly owned property, as requested by the plaintiff. This decision underscores the importance of procedural fairness, while also highlighting that the court can proceed in the absence of a party if there are no substantive issues of principle that require their input. The defendant's absence did not prevent the court from making the order, as the application was straightforward and unopposed.

Orders