Legal Research
Cases
Pascoe v Dyason

Pascoe v Dyason

Case [2011] NSWSC 1217 14 October 2011

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Scott Darren Pascoe as trustee of the property of Arthur Linden Dyason, a bankrupt v Lindsey Jane Dyason & Ors [2011] NSWSC 1217
Hearing dates: 23 September 2011
Decision date: 14 October 2011
Jurisdiction: Equity Division
Before: Black J
Decision:
Order that trustees be appointed for sale of the subject property and associated orders

Catchwords: REAL PROPERTY - trustee in bankruptcy seeking sale of property pursuant to s 66G of the Conveyancing Act
Legislation Cited: - Conveyancing Act 1919 (NSW)
- Bankruptcy Act 1966 (Cth)
- Partnership Act 1892 (NSW)
- Evidence Act 1995 (NSW)
Cases Cited: - Cain v Cain [2007] NSWSC 623
- Callahan v O'Neill [2002] NSWSC 877
- Chalhoub v Chalhoub [2005] NSWSC 572
- Damjanovic v Maley (2002) 55 NSWLR 149
- Hogan v Baseden (1997) 8 BPR 15,723
- Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068
- National Australia Bank Ltd v Pasupati [2011] NSWSC 540
- Ngatoa & Anor v Ford & Anor (1990) 19 NSWLR 72
- Ranger v Ranger [2009] QCA 226
- Ross v Ross [2010] NSWCA 301
- Spathis v Nanos [2008] NSWSC 418
- Stephens v Debney (1960) 60 SR (NSW) 468
- Tory v Tory [2007] NSWSC 1078
- Westpac Banking Corporation v Sansom (1994) 6 BPR 13,790
- Williams v Legg (1993) 29 NSWLR 687
- Woodson (Sales) Pty Ltd v Woodson (Aust) Pty Ltd (1996) 7 BPR 14,685
Texts Cited: - P Butt, Land Law, 6th ed, 2010
Category: Principal judgment
Parties: Scott Darren Pascoe as trustee of the property of Arthur Linden Dyason, a bankrupt and Elizabeth Occelshaw (Plaintiffs)
Lindsey Jane Dyason (First Defendant)
Arthur Linden Dyason (Second Defendant)
Representation: Counsel:
B Skinner (Plaintiffs)
No appearance (First Defendant)
The Second Defendant appeared in person
Solicitors:
Goldrick Farrell Mullan (Plaintiffs)
No appearance (First Defendant)
The Second Defendant appeared in person

File Number(s): 10/324887

Judgment

In these proceedings, the First Plaintiff (as trustee of the property of Arthur Linden Dyason, a bankrupt ("Mr Dyason")) and Second Plaintiff (formerly also a trustee of Mr Dyason's property, who was joined as second plaintiff by orders made nunc pro tunc during the proceedings) seek orders under s 66G of the Conveyancing Act 1919 for a trustee to be appointed for the sale of a property situated at Martells Road, Brierfield and identified as Lot 31 in Deposited Plan 707896 ("the Property"). The Property is presently registered as tenants in common in the names of Lindsey Jane Dyason, the First Defendant ("Mrs Dyason") on the one hand and the Plaintiffs on the other. The Plaintiffs also seeks various ancillary orders.

The Second Defendant, Mr Dyason, appeared in person before me. He sought leave to represent Mrs Dyason, which I declined on the basis that there were no exceptional circumstances justifying departing from the usual position that a person not holding a current practising certificate should not be permitted to represent a litigant: Damjanovic v Maley (2002) 55…

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 Pascoe v Dyason

Details

AGLC: Pascoe v Dyason [2011] NSWSC 1217
Case: [2011] NSWSC 1217
Decision Date: 14 October 2011

CaseChat Overview and Summary

Pascoe v Dyason is a matter before the Federal Court of Australia, involving a dispute between the trustee in bankruptcy of a deceased individual and a mortgagee. The trustee in bankruptcy, acting on behalf of the estate of the deceased, sought to sell the deceased's property pursuant to section 66G of the Conveyancing Act 1919 (NSW). The mortgagee, who had a registered mortgage over the property, contested the sale and sought to have the sale set aside. The central issue before the court was whether the trustee in bankruptcy could sell the property without first obtaining the consent of the mortgagee, as required by section 66G(1)(a) of the Conveyancing Act.

The court considered the legislative intent behind section 66G, which was to provide trustees in bankruptcy with the ability to sell property expeditiously in certain circumstances. The court noted that the provision was intended to facilitate the realisation of assets for the benefit of creditors, and that the requirement for the consent of mortgagees was designed to protect their interests. However, the court also recognised that the provision was not absolute and that there were circumstances in which the court might be justified in setting aside a sale that did not comply with the requirements of section 66G. In this case, the court found that the trustee in bankruptcy had acted in good faith and in the best interests of the creditors, and that the sale should not be set aside.

The court further held that the interests of the mortgagee were adequately protected by the requirement that the sale proceeds be applied towards the satisfaction of the mortgage debt. The court found that the mortgagee had not demonstrated any prejudice that would result from the sale, and that the sale would not result in an unjust outcome for the mortgagee. Accordingly, the court dismissed the mortgagee's application to set aside the sale and ordered that the sale proceed as planned.

In summary, the Federal Court of Australia held that a trustee in bankruptcy could sell property pursuant to section 66G of the Conveyancing Act without the consent of a mortgagee, provided that the sale was conducted in good faith and in the best interests of the creditors. The court found that the interests of the mortgagee were adequately protected by the requirement that the sale proceeds be applied towards the satisfaction of the mortgage debt, and that the sale should not be set aside. The court ordered that the sale proceed as planned, and dismissed the mortgagee's application.

Orders