Manifis v Mouzalidis - [2021] WASC 454

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MANIFIS -v- MOUZALIDIS [2021] WASC 454
CORAM:   MASTER SANDERSON
HEARD:   24 NOVEMBER 2021
DELIVERED          :   13 DECEMBER 2021
FILE NO/S:   CIV 1455 of 2021
BETWEEN:   MICHAEL MANIFIS
First Plaintiff

JAMES MANIFIS
Second Plaintiff

HELEN ANASTASAS
Third Plaintiff

DESPO EFSTATHIS
Fourth Plaintiff

DIANE KASSAPIS
Fifth Plaintiff

AND

NIK MOUZALIDIS as administrator of the estate of JOHN MOUZALIDIS
First Defendant

NIK MOUZALIDIS as administrator of the estate of ANNA MOUZALIDIS
Second Defendant

TONY MOUZALIDIS as administrator of the estate of ANNA MOUZALIDIS
Third Defendant

Catchwords:

Property law - Application for sale in lieu of partition under s 126 of the Property Law Act - Form of orders

Legislation:

Property Law Act 1969 (WA)

Result:

Orders made for sale

Category: A

Representation:

Counsel:

First Plaintiff	:	KA Parker
Second Plaintiff	:	KA Parker
Third Plaintiff	:	KA Parker
Fourth Plaintiff	:	KA Parker
Fifth Plaintiff	:	KA Parker
First Defendant	:	MJ Keating
Second Defendant	:	MJ Keating
Third Defendant	:	MJ Keating

Solicitors:

First Plaintiff	:	Greenstone Legal
Second Plaintiff	:	Greenstone Legal
Third Plaintiff	:	Greenstone Legal
Fourth Plaintiff	:	Greenstone Legal
Fifth Plaintiff	:	Greenstone Legal
First Defendant	:	Williams & Hughes
Second Defendant	:	Williams & Hughes
Third Defendant	:	Williams & Hughes

Case(s) referred to in decision(s):

Nil

MASTER SANDERSON:

This was an application for sale of a property in lieu of petition under s 126 of the Property Law Act1969 (WA). By the time the matter was called on for hearing, the parties had resolved the property should be sold. There was a dispute about the form of the orders. As counsel for the defendant pointed out in his submissions, orders facilitating a sale varied widely. But there are some principles which are consistently reflected in the orders made for sale. This case well illustrates those principles.
Ultimately the orders I made were as follows:
1.The land and buildings known as 558 Newcastle Street, West Perth in the State of Western Australia, more particularly described as Lot 133 on Plan 2360 and being all that land comprised in Certificate of Title Volume 1118 Folio 682 (Property), be sold free of encumbrances.
2.Within 28 days:
(a)the first defendant shall lodge all documents with, and do all things required by, Landgate to transmit the title in the Property held by the late John Mouzalidis to the first defendant;
(b)the second defendants shall lodge all documents with, and do all things required by, Landgate to transmit the title in the Property held by the late Anna Mouzalidis to the second defendants; and
(c)the plaintiffs will, simultaneously with the lodgement at Landgate by the defendants of the documents required by sub-paragraphs a and b above, produce the duplicate Certificate of Title for the Property at Landgate to enable Landgate to process the documents lodged by the defendants.
3.The plaintiffs have the conduct of the sale of the Property in accordance with the following:
(a)the Property is not to be…

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 Manifis v Mouzalidis

Details

AGLC: Manifis v Mouzalidis [2021] WASC 454
Case: [2021] WASC 454
Decision Date

CaseChat Overview and Summary

This case involved an application for the sale of a property under section 126 of the Property Law Act 1969 (WA). The applicants, Michael Manifi, James Manifi, Helen Anastasas, Despo Efstathis and Diane Kassapis, sought an order for the sale of a property at 558 Newcastle Street, West Perth. The respondents, Nik Mouzalidis, Anna Mouzalidis, and Tony Mouzalidis, as administrators of the estate of John Mouzalidis, Anna Mouzalidis, and Tony Mouzalidis, respectively, did not oppose the sale but had concerns about the form of the orders. The court had to decide on the appropriate form of orders to facilitate the sale of the property. The court considered the parties' submissions and made orders for the sale of the property, with the applicants having the conduct of the sale. The court also made orders regarding the net proceeds of the sale and the costs of the proceedings. The court ruled that each party should bear their own costs, as both parties made cogent arguments in their favour.

The court's reasoning was based on the principles consistently reflected in orders made for sale. The court considered the fact that the applicants initiated the application and the respondents effectively conceded the application and agreed to the sale, which was a factor in favour of giving control of the sale to the applicants. The court noted that while the parties were in dispute and there may be a lack of co-operation and disagreements between the parties even after the sale order is made, it is generally the case that one of the parties will have conduct of the sale. The court also considered the need to keep the non-selling party informed and to have the right to challenge any decision which it sees as improper. The court ruled that absent agreement between the parties as to what work should be undertaken and the budget for such work, orders for repairs and maintenance will not generally be made. The court further ruled that in relation to sale by private treaty, particularly in a case where the owners are not permitted to purchase the property, it is appropriate to have the non-selling party notified of the sale price and given the opportunity to apply to the court if they are dissatisfied. In relation to costs, the court ruled that each party should bear their own costs, as both parties made cogent arguments in their favour. The court further ruled that it would be inappropriate to penalise either party with an order for costs.

Orders