Promethean Investments Pty Limited and Promethean Trust v Paul Tsilfidis - [2014] NSWSC 1049

This decision has been amended. Please see the end of the decision for a list of the amendments.

Supreme Court

New South Wales

Case Title: Promethean Investments Pty Limited and Promethean Trust v Paul Tsilfidis

Medium Neutral Citation: [2014] NSWSC 1049

Hearing Date(s): 29 July 2014

Decision Date: 29 July 2014

Jurisdiction: Equity Division

Before: Sackar J

Decision:
see para 32

Legislation Cited: NSW Trustee and Guardian Act 2009
Guardianship Act 1987

Cases Cited: Lysaght v Edwards (1876) 2 Ch D 399

Category: Principal judgment

Parties: Promethean Investments Pty Limited atf the Promethean Trust - plaintiff
Paul Tsilfidis - first defendant
NSW Trustee and Guardian - second defendant
Jack Jacovou - third defendant

Representation

- Counsel: Counsel:
C Alexander - plaintiff
In person - first defendant
In person - third defendant

File Number(s): 2014/145287

JUDGMENT -

His Honour

These are expedited proceedings brought by way of amended statement of claim. A number of orders are sought but apart from the appointment of an administrator by way of letters of administration the principal relief sought is specific performance of a contract for the sale of land of a property in Newtown.
The first defendant is Mr Paul Tsilfidis. He is the son of Ms Kati Tsilfidis and he is the principal beneficiary under her will dated 16 November 2012. He has appeared in person to oppose orders sought by the plaintiff and certainly to oppose the order for specific performance.
The second defendant was the New South Wales Trustee and Guardian. On or about 30 May it was excused from any further attendance in the proceedings and it simply filed an appearance and has not participated in the hearing.
The first defendant Mr Tsilfidis has never filed any defence in the proceedings nor has he ever filed a cross claim. He has provided me today with a document or a series of documents which I have marked Exhibit D1 and I will return to those documents a little later in the judgment.

Background Facts

The brief background facts are as follows. On 14 September 2009 a financial management order was made and it was made in respect of Mrs Kati Tsilfidis.
On 16 November 2012 Mrs Kati Tsilfidis made her last will and testament.
Pursuant to that will which is in Exhibit P1 at pp 125 and following she appointed her son Mr Paul Tsilfidis as executor and trustee and in the event that he predeceased her she appointed her grandson Mr Adam Tsilfidis as executor and trustee. Thereafter she gave the entirety of her estate absolutely to Mr Paul Tsilfidis and in the event of his death to the children of Paul Tsilfidis who comprise Adam Tsilfidis and his sister.
On 12 December 2013 and pursuant, it is asserted, to the financial management order a sale of a property she owned in Newtown was arranged and a contract was entered into on that day following an auction. The plaintiff was the successful purchaser.
Sadly and shortly thereafter on 21 December…

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.

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Details

AGLC: Promethean Investments Pty Limited and Promethean Trust v Paul Tsilfidis [2014] NSWSC 1049
Case: [2014] NSWSC 1049
Decision Date: 29 July 2014

CaseChat Overview and Summary

Promethean Investments Pty Limited and Promethean Trust have brought proceedings against Paul Tsilfidis, seeking specific performance of a contract for the sale of land in Newtown. The proceedings were heard by Sackar J in the Supreme Court of New South Wales. The primary dispute revolves around the validity of a financial management order and whether the New South Wales Trustee had the authority to arrange the sale of the property. The court was required to determine whether the New South Wales Trustee had the authority to arrange the sale of the property and if the purchaser was entitled to specific performance. The court found that the New South Wales Trustee had the authority to arrange the sale of the property under the NSW Trustee and Guardian Act 2009. The court also found that the purchaser was entitled to specific performance as the vendor held the property as trustee for the purchaser. The court granted an order for specific performance and appointed an administrator to complete the sale.

Orders