Neilan v Neilan - [2019] NSWSC 66

Supreme Court

New South Wales

Medium Neutral Citation: Neilan v Neilan [2019] NSWSC 66
Hearing dates: 6 February 2019
Decision date: 06 February 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Pursuant to s 36A of the Conveyancing Act 1919 (NSW), order that the shares in Avelona Flats Pty Ltd being Share Group C No 2281 to 3420 in the name of the plaintiff as to 75% and the defendant as to 25% as tenants in common be sold.
2.   Order that the plaintiff and the defendant do all things necessary to give effect to O 1.
3.   Order that the defendant vacate the premises known as Flat 3, 35 Arcadia St, Coogee within 42 days of the date of these orders.
4.   Order that the plaintiff have authority to conduct the said sale either by public auction or by private treaty and the transfer of the shares to the purchaser thereof and to receive the purchase moneys.
5.   Order that the plaintiff hold the proceeds of such sale to be paid as follows:
(a)   outstanding Council rates, water rates, company levies, agent’s commission and legal costs of the sale;
(b)   costs of these proceedings on a solicitor/client basis;
(c)   25% of the net balance to the defendant;
(d)   $180,000 to the defendant, such payment to be in discharge of the loan made by the defendant to the estate of the late Michelle Anne Waldon pursuant to the agreement made 14 June 2013 between the executrix of the estate and the defendant; and
(e)   the balance remaining of the proceeds of sale to the plaintiff.
6.   Liberty to both parties to apply on three days’ notice for any application to vary or implement the above orders.
7.   These orders be entered forthwith.
8.   Direct the plaintiff to notify the defendant by email to the defendant’s email address as soon as practicable after entry of these orders of the making of these orders and thereafter serve a sealed copy of the orders on the defendant as soon as practicable.

Catchwords: PERSONAL PROPERTY — Co-ownership — Direction by court to divide co-owned chattels — plaintiff seeking order for sale of shares held by the parties as co-tenants in common pursuant to s 36A of the Conveyancing Act 1919 (NSW) — sale of shares ordered and defendant to vacate the premises
Legislation Cited: Conveyancing Act 1919 (NSW), s 36A
Cases Cited: Capogreco v Rogerson [2015] NSWSC 1371
Ferrari v Beccaris [1979] 2 NSWLR 181
Naziridis v Rimis (1985) 9 BPR 16
Re Gillie, ex parte Cornell (1996) 150 ALR 110; (1996) 70 FCR 254
Category: Principal judgment
Parties: Emily Kate Neilan (Plaintiff)
Steven Neilan (Defendant)
Representation:
Counsel:
S Southwick (Plaintiff)
Solicitors:

File Number(s): 2018/00278295
Publication restriction: Nil

Judgment

HER HONOUR: This is an application by the plaintiff, pursuant to an amended summons filed 10 December 2018, for an order pursuant to s 36A of the Conveyancing Act 1919 (NSW) (“Conveyancing Act”) that the shares in Avelona Flats…

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 Neilan v Neilan

Details

AGLC: Neilan v Neilan [2019] NSWSC 66
Case: [2019] NSWSC 66
Decision Date: 06 February 2019

CaseChat Overview and Summary

Neilan v Neilan involved a dispute between a couple over their co-ownership of shares in a property, which they had purchased together. The plaintiff sought an order for the sale of these shares under section 36A of the Conveyancing Act 1919 (NSW), as well as an order for the defendant to vacate the premises. The court was required to determine whether it should exercise its discretion to order a sale of the shares and whether it should order the defendant to vacate the property.

The court considered the nature of the co-ownership arrangement and the circumstances of the parties. It noted that the parties had purchased the shares as tenants in common, which meant that each party had an undivided interest in the property. The court also considered the fact that the parties had separated and were living apart, and that the plaintiff had been paying all the expenses associated with the property. In light of these factors, the court found that it was appropriate to exercise its discretion to order a sale of the shares. The court also found that it was appropriate to order the defendant to vacate the premises, as the plaintiff was the sole occupier of the property and the defendant had no right to remain there.

The court ordered that the shares be sold and the proceeds divided between the parties according to their respective interests. The court also ordered the defendant to vacate the premises within 14 days of the judgment. These orders reflected the court's determination that the sale of the shares and the defendant's vacating of the premises were necessary to resolve the dispute and ensure that the parties' respective interests were protected.

Orders