Mazzone v James

[2009] NSWSC 582

CITATION:	Mazzone v James [2009] NSWSC 582
HEARING DATE(S):	18 June 2009
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	18 June 2009
DECISION:	Trustees replaced and ordered to account and to pay costs
CATCHWORDS:	CONVEYANCING - Land Titles under the Torrens System - statutory trust for sale - trustees authorised one co-owner to carry out renovations - other co-owners opposed - no consultation with them by trustees under Conveyancing Act 1919, s 66H - whether trustees had power to authorise renovations
LEGISLATION CITED:	Conveyancing Act 1919
PARTIES:	Nicodemo Mazzone (Plaintiff) Trystan David James (First Defendant) (In person) Sharron James (Second Defendant) (In person)
FILE NUMBER(S):	SC 4694/08
COUNSEL:	M Rollinson (Plaintiff)
SOLICITORS:	V. F. Stanizzo Lawyer (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 18 JUNE 2009

4694/08 NICODEMO MAZZONE v TRYSTAN DAVID JAMES & ANOR

EX TEMPORE JUDGMENT

1 An application has been brought by two of three co-owners of property to remove statutory trustees for sale appointed by consent on 22 October 2008 under the Conveyancing Act 1919, s 66G.

2 The evidence is that one of the trustees, having had a market appraisal carried out, authorised the plaintiff, Nicodemo Mazzone, the other co-owner, to effect repairs and renovations of the premises with a view to increasing the market value of the property. The defendants opposed this course.

3 The second defendant, Sharron James, wrote to the solicitor for the plaintiff on 2 October 2008 stating, amongst other things, as follows:

“I have also written a letter to the Trustees letting them know that I will not tolerate Mr. Mazzone causing further damage to the property under the rouse [sic] of renovations, as Mr Mazzone has initiated this sale via Trustees then the property will be sold in its current condition.”

4 Neither trustee reacted to that correspondence. Ms James said that her letters to the trustees have gone unanswered. A similar complaint is contained in the affidavit of Trystan David James, the first defendant.

5 Section 66H of the Conveyancing Act is in the following terms:

“So far as practicable trustees on the statutory trust for sale, or on the statutory trust for partition, shall consult the persons of the age of eighteen years or upwards and not subject to disability for the time being beneficially entitled to the income of the property until sale or partition, and shall, so far as consistent with the general interest of the trust, give effect to the wishes of such persons, or, in the case of dispute, of the majority (according to the value of their combined interests) of such persons, but a purchaser shall not be concerned to see that the provisions of this section have been complied with."

6 The trustees were duty bound to consult Mr and Ms James, and they being opposed to the carrying out of repairs or renovations by Mr Mazzone, that majority view should have been respected.

7 One of the trustees, Hakan Kutup, also authorised Mr Mazzone to remove rubbish from the property.

8 It seems to me that rubbish removal is incidental to the exercise of the power of sale. But a trustee on a statutory trust for sale does not, in my view, have power to authorise the carrying out of renovations. Mr and Ms James having disagreed with the course proposed, the trustees should have desisted from that endeavour. That endeavour has been carried on from October 2008 to the present time, the property only now being ready for sale.

9 The trustees were given notice of today’s hearing. They chose not to attend. In my view they breached their statutory trust for sale and the application for their removal should succeed.

10 I order the defendants to file in the Registry by no later than 4.00 pm on Monday 22 June 2009 a consent of the Public Trustee to act as statutory trustee for sale of the property at 45 Cabbage Tree Lane, Fairy Meadow, being the whole of the land in folio 4/19568.

11 I order that upon the filing of the consent to act, Hakan Kutup and Shane Gollop be removed as statutory trustees for sale and that the land be divested from them and be vested in the Public Trustee who will thus be appointed the statutory trustee for sale of the property under the Conveyancing Act 1919, s 66G.

12 I order Hakan Kutup and Shane Gollop to render an account of their statutory trust for sale.

13 I order Hakan Kutup and Shane Gollop to pay the defendants’ costs of the application.

14 I grant a stay of the orders for an account and for costs until 5:00 pm on Friday 3 July 2009.

15 I stand the matter over before the Registrar at 9.15 am on Friday 26 June 2009.

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