Marilyn Joy Lucy Brown v Michael James Brown

[2018] NSWSC 41

Supreme Court

New South Wales

Medium Neutral Citation:	Marilyn Joy Lucy Brown v Michael James Brown [2018] NSWSC 41
Hearing dates:	01 February 2018
Date of orders:	01 February 2018
Decision date:	01 February 2018
Jurisdiction:	Equity
Before:	McDougall J
Decision:	Plaintiffs to have relief sought. Defendant to pay indemnity costs. Costs to be recovered from defendant’s share of proceeds of sale.
Catchwords:	LAND LAW – Sale of property – Appointment of trustee for sale – ordinary approach to grant order where majority co-owner seeks it – no reason to not grant order – order granted   COSTS – Indemnity costs – No evidentiary basis for opposition – costs to be paid out of defendant’s share of proceeds
Legislation Cited:	Conveyancing Act 1919 (NSW)
Category:	Principal judgment
Parties:	Marilyn Joy Lucy Brown (First Plaintiff) Arthur James Brown (Second Plaintiff) Michael James Brown (Defendant)
Representation:	Counsel: J J Hyde / K Petch (Plaintiffs) No appearance (Defendant)   Solicitors: Smallwoods Lawyers (Plaintiffs) No appearance (Defendant)
File Number(s):	2017/362640

Judgment   (ex tempore – revised 1 february 2018)

1. HIS HONOUR: The plaintiffs as to two thirds, and the defendants as to one third, are the registered proprietors of a residential property at Ingleside. The interests as between the plaintiffs and the defendant are held as tenants in common, but the plaintiffs hold their two thirds interest as joint tenants between them.

2. The plaintiffs seek an order for the appointment of trustees for sale, pursuant to s 66G of the Conveyancing Act 1919 (NSW). It has been necessary for them to seek that order because the defendant has declined to agree to the sale of the property.

3. The property was for some time the residence of the plaintiffs and the defendant. As I understand it, the plaintiffs have moved out. The plaintiffs require to realise their share of the value of the property to pay for the care of the second plaintiff (who requires expensive nursing and other specialist attention), and to provide accommodation for the first plaintiff adjacent to the facility where the second plaintiff now resides. They have no other means of raising the very substantial sums necessary for those purposes.

4. The general approach to applications under s 66G is that where a majority co-owner seeks an order under the section, it will ordinarily be granted unless, for some reason, there are equitable or other bars to the making of the order. For example, there may have been a contract between all the joint owners not to make such an application, or there may be circumstances giving rise to an estoppel, which would prevent or limit the making of the application.

5. In the present case, the defendant has not appeared. He has been served with process and the affidavit evidence, and he has been served with notice of the hearing date. There is absolutely nothing in the evidence to tell against the making of the orders sought.

6. It is most unfortunate that it has been necessary for the plaintiffs to invoke the Court's power. The parties should have been able to agree on a mechanism for private sale, which would have avoided the expense of appointing trustees and having those trustees undertake the sale. The plaintiffs would also have been able to avoid the expense of these proceedings.

7. In those circumstances, I am satisfied that it is appropriate to make the orders sought. I am also satisfied that it is not appropriate that the plaintiffs should have to bear the legal costs that they have incurred. This is clearly a case where, there being on the evidence no basis for any opposition to the orders, the plaintiffs should be indemnified for their costs.

8. In those circumstances, I will make the orders sought and I will order the defendant to pay the plaintiff's costs of the proceedings. I will order also that those costs be assessed on the indemnity basis.

9. It is to my mind obvious that the plaintiffs should not have to suffer the risk that the defendant might put himself in a position where he cannot pay the costs. In those circumstances I think it is appropriate to order in effect that the costs be charged upon and paid out of the defendant's share of the proceeds of sale, and I will make such an order.

10. Because it is unlikely that costs will be assessed before the sale is completed, there needs to be provision for a mechanism to enable an agreed or, in default of agreement, specified sum to be retained out of the defendant's share of the proceeds, to await assessment and any challenge to the assessment.

11. Those matters having been indicated, the appropriate course is to direct the plaintiffs to bring in draft orders to give effect to these reasons and to what I said in the course of submissions. That should be done by 5pm today, and I will make those orders in chambers.

12. In light of the provision of a court book, I direct that exhibit MJLB 1 and MJLB 2 that were tendered when the matter first came before the Duty Judge on 30 November 2017 be handed out.

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