Lubke v Nassir

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.