Meszaros v Meszaros - [2017] NSWSC 1193

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Meszaros v Meszaros [2017] NSWSC 1193
Hearing dates: On the papers
Date of orders: 06 September 2017
Decision date: 06 September 2017
Jurisdiction: Equity
Before: Darke J
Decision:
Orders that the parties’ costs be paid out of the proceeds of sale.

Catchwords: COSTS – proceedings for appointment of trustees for sale of land – proceedings settled at an early stage – agreement that the property be sold – plaintiff claims defendant acted unreasonably in not consenting to sale prior to commencement of proceedings – costs of proceedings to be paid out of proceeds of sale
Legislation Cited: Conveyancing Act 1919 (NSW), s 66G
Cases Cited: Botros v Frank [2013] NSWSC 712
Kardos v Sarbutt (No 2) [2006] NSWCA 206
McKay v McKay [2008] NSWSC 256
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Spathis v Nanos (No 2) [2008] NSWSC 470
Tory v Tory [2007] NSWSC 1078
Category: Costs
Parties: Gizella Meszaros (Plaintiff)
Laszlo Christopher Meszaros (Defendant)
Representation:
Counsel:
Mr P Glissan (Defendant)
Solicitors:
Shaddicks Lawyers (Plaintiff)
Roderick Storie Solicitors (Defendant)

File Number(s): 2016/368208
Publication restriction: None

Judgment

By a Summons filed on 8 December 2016 the plaintiff sought the appointment of trustees for the sale of land in Agnes Banks, New South Wales pursuant to s 66G of the Conveyancing Act 1919 (NSW). The plaintiff and the defendants are registered proprietors of the land as tenants in common in equal shares. The plaintiff is the mother of the defendant.
The parties advised the Court in March 2017 that they were close to settling the proceedings. The proceedings were subsequently adjourned a number of times to allow that process to occur. The parties entered into a deed on 5 May 2017 which provided for sale of the property and a procedure to resolve the dispute between the parties as to their respective entitlements to the proceeds. The deed did not make any provision for the costs of the proceedings.
An auction of the property occurred on 17 June 2017. It appears that there were no bidders at the auction. The Court has been informed that the parties then agreed to sell the property by private treaty. It is unclear whether the property has in fact been sold. In any event, the parties indicated in August 2017 that the principal relief sought by the plaintiff had been “resolved”, but the question of costs had not. Orders were made with the consent of the parties for the question of costs to be determined on the papers. Submissions have been received from both parties in accordance with those orders.
The plaintiff submits that the defendant should pay her costs of the proceedings. The plaintiff says that she was justified in commencing the proceedings and that, although there was no determination on the merits, she would have been successful in obtaining an order for the appointment of trustees. The plaintiff also alleges that the defendant avoided service…

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 Meszaros v Meszaros

Details

AGLC: Meszaros v Meszaros [2017] NSWSC 1193
Case: [2017] NSWSC 1193
Decision Date: 06 September 2017

CaseChat Overview and Summary

The matter before the court involved a dispute between Meszaros and Meszaros, concerning the sale of certain property. The case arose when the plaintiff sought the appointment of trustees to sell the property, and the defendant contested this request. The dispute was ultimately settled at an early stage, with both parties agreeing to the sale of the property. However, the plaintiff claimed that the defendant had acted unreasonably by not consenting to the sale prior to the commencement of the proceedings. The plaintiff sought an order that the costs of the proceedings should be paid out of the proceeds of the sale.

The primary legal issue before the court was whether the defendant's actions in not consenting to the sale prior to the commencement of proceedings were unreasonable, thereby justifying an order that the costs of the proceedings be paid out of the proceeds of the sale. The court had to consider the principles governing the assessment of costs in such circumstances, as well as the conduct of the parties throughout the proceedings.

In determining the matter, the court considered the conduct of both parties and the settlement reached. The court found that the defendant's actions in not consenting to the sale prior to the commencement of proceedings were not unreasonable, and that the plaintiff had not demonstrated any fault on the part of the defendant. The court held that the defendant's decision to contest the proceedings was a legitimate exercise of their legal rights, and that the plaintiff's claim for costs should be dismissed. The court also noted that the settlement reached between the parties was a reflection of their respective positions and should be respected.

As a result of the court's decision, the plaintiff's claim for costs was dismissed, and no order was made for the costs of the proceedings to be paid out of the proceeds of the sale. The sale of the property proceeded as agreed, with the proceeds distributed according to the terms of the settlement reached between the parties.

Orders