O'Dea v O'Dea - [2019] NSWSC 1560

Supreme Court

New South Wales

Medium Neutral Citation: O’Dea v O’Dea [2019] NSWSC 1560
Hearing dates: 11 and 29 October, 6 November 2019
Date of orders: 06 November 2019
Decision date: 06 November 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Order directing the trustees to make particular distribution refused. Judicial advice given to trustees concerning amount to be retained as security for right of indemnity.

Catchwords:
EQUITY – trusts and trustees – application by plaintiffs for an order that the trustees of a statutory trust for sale under s 66G of the Conveyancing Act 1919 (NSW) be directed to distribute proceeds of sale in a particular manner by making various adjustments – where the orders recording the terms of the statutory trust for sale required the trustees to distribute the proceeds of sale to the plaintiffs and the defendant in equal shares, subject to any adjustments that should be made in favour of either side – held that the orders should not be construed so as to require the trustees to make the adjustments sought by the plaintiffs – trustees not bound to decide that the adjustments should be made – proposed adjustments not adjustments between the plaintiffs and defendant in their capacity as co-owners – inappropriate to direct trustees to make distribution as sought by the plaintiffs
EQUITY – trusts and trustees – judicial advice – application for judicial advice brought by trustees of a statutory trust for sale under s 66G of the Conveyancing Act 1919 (NSW) – where plaintiffs and defendant are beneficiaries under the statutory trust for sale – where the defendant previously entered into contract with trustees to purchase the property – where that contract was terminated by trustees – where property subsequently sold to third party – where defendant foreshadows potential claims against trustees in relation to the termination of the contract – whether trustees are justified in retaining some or all of the proceeds of sale to protect their right of indemnity in relation to the potential claims – trustees justified in retaining some of the proceeds of sale – judicial advice given
Legislation Cited: Conveyancing Act 1919 (NSW), ss 66F, 66G
Trustee Act 1925 (NSW), s 63
Cases Cited: Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd (2008) 14 BPR 98,326; [2008] NSWSC 839
Bar-Mordecai v State of New South Wales (2012) 83 NSWLR 125; [2012] NSWCA 207
Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210
Re Fettell (1952) 52 SR (NSW) 221
Ross v Ross (2010) 15 BPR 28,945; [2010] NSWCA 301
Whitehead v Whitehead [2002] NSWSC 486
Category: Consequential orders (other than Costs)
Parties: Liam Bailey (First Applicant)
Christopher Palmer (Second Applicant)
Rosanna Elizabeth O’Dea, Larissa Mary O’Dea and Andrew Thomas Jotham O’Dea (Plaintiffs)
Michael Thomas O’Dea (Defendant)
Representation:
Counsel:
Mr M K Condon SC (Applicants)
Mr G Farland (Plaintiffs)
Mr D M Thackeray, solicitor (Defendant)
Solicitors:
Holman Webb Lawyers (Applicants)
O’Neill McDonald Lawyers (Plaintiffs)
CLW Lawyers (Defendant)

File Number(s): 2017/237276
Publication restriction:

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 O'Dea v O'Dea

Details

AGLC: O'Dea v O'Dea [2019] NSWSC 1560
Case: [2019] NSWSC 1560
Decision Date: 06 November 2019

CaseChat Overview and Summary

In the case of O'Dea v O'Dea, the plaintiffs sought an order directing the trustees of a statutory trust for sale to distribute the proceeds of sale in a particular manner, involving adjustments in their favour. The dispute was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the orders recording the terms of the statutory trust for sale should be interpreted to require the trustees to make specific adjustments to the distribution of proceeds in favour of the plaintiffs. The plaintiffs argued that certain adjustments should be made to the distribution in their favour, whereas the trustees contended that they were not obligated to make these adjustments.

The court held that the orders should not be construed in a way that mandated the trustees to make the adjustments sought by the plaintiffs. The trustees were not bound to decide that the adjustments should be made, as the proposed adjustments were not between the plaintiffs and the defendant in their capacity as co-owners. The court found it inappropriate to direct the trustees to distribute the proceeds as sought by the plaintiffs. Additionally, the court considered a request for judicial advice by the trustees regarding whether they were justified in retaining some or all of the proceeds of sale to protect their right of indemnity in relation to potential claims by the defendant. The court concluded that the trustees were justified in retaining some of the proceeds of sale for this purpose.

Consequently, the court provided judicial advice to the trustees, affirming their right to retain a portion of the proceeds to safeguard their right of indemnity. The final orders of the court did not compel the trustees to make the adjustments sought by the plaintiffs and permitted the trustees to retain a portion of the proceeds to address potential claims.

Orders