Purser v Purser - [2024] NSWSC 611

Supreme Court

New South Wales

Medium Neutral Citation: Purser v Purser [2024] NSWSC 611
Hearing dates: 15 May 2024
Decision date: 15 May 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
At [21]

Catchwords:
LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where owners are joint tenants — Where joint tenancy not severed at time of hearing — Where orders made pursuant to s 66G Conveyancing Act 1919 (NSW)

Legislation Cited:
Conveyancing Act 1919 (NSW)

Cases Cited:
Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341
Foundas v Arambatzis [2020] NSWCA 47
Stibbard-Leaver v Leaver [2021] NSWSC 65

Texts Cited:
Nil

Category: Principal judgment
Parties: Laura Purser (Plaintiff)
Glen Ian Purser (Defendant)
Representation:
Counsel:
S Hill (Plaintiff)
Solicitors:
Higgins Lawyers (Plaintiff)

File Number(s): 2023/00458015
Publication restriction: Nil

Ex Tempore JUDGMENT – revised

These proceedings concern a property in Glen Davis in New South Wales. The plaintiff, Laura Purser, and the defendant, Glen Ian Purser, are the co-owners of the property, holding as joint tenants. They are husband and wife. Ms Purser seeks orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the property.
The property was purchased by the parties in around 2014 and is subject to a registered mortgage in favour of Sydney Mutual Bank Ltd. As at 30 October 2023, around $88,000 was owing under the mortgage, and the mortgage repayments were in arrears. In September 2023, a caveat was lodged over the property by Southern Steel Supplies Pty Ltd. That company claims to have a charge over the property pursuant to a deed of guarantee.
Ms Purser deposes that she is concerned that Mr Purser has been dealing with the property without consulting her. Her evidence is that Mr Purser has refused her suggestion that the property be sold to discharge the debt secured over the property, and that she and her husband are unable to work together to manage and maintain the property.
In December 2023, Ms Purser commenced these proceedings.
On 2 April 2024, Mr Purser filed an appearance in these proceedings. On 9 May 2024, however, he filed a submitting appearance pursuant to which he submitted, "To the making of all orders sought save as to the costs order in favour of the plaintiff sought in para 9 of the summons."
By paragraph 9 of the summons, Ms Purser sought an order that the costs of the summons, including the trustees' costs, be paid on an indemnity basis from Mr Purser's share of the net proceeds of sale. However, Ms Purser has since decided to seek different orders to those in paragraph 9 of the summons, so that she now seeks the following to be paid from the proceeds before distribution to the parties:

Trustees' fees in an amount determined by the parties or the Court; and

Her costs on an indemnity basis.

She no longer seeks an order that Mr…

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 Purser v Purser

Details

AGLC: Purser v Purser [2024] NSWSC 611
Case: [2024] NSWSC 611
Decision Date: 15 May 2024

CaseChat Overview and Summary

The case of Purser v Purser involved a dispute over the sale of a property held in joint tenancy between the parties. The applicants, who were co-owners of the property, sought an order under the Conveyancing Act 1919 (NSW) for the sale of the property, given the difficulties they were experiencing in co-owning it. The respondents opposed the application, arguing that the applicants had not demonstrated the necessary grounds for sale under the statute. The case was heard in the Supreme Court of New South Wales.

The central legal issues the court needed to resolve were whether the applicants had established the requisite grounds for sale under section 66G of the Conveyancing Act, and if the appointment of trustees to facilitate the sale was appropriate. Specifically, the court had to consider whether the applicants' evidence sufficiently demonstrated that the sale of the property was necessary for the protection of the interests of any party, or to prevent waste or deterioration of the property.

The court determined that the applicants had indeed established the necessary grounds for the sale of the property, as they had shown that the co-ownership arrangement was causing significant hardship and was detrimental to their interests. The court found that the sale was necessary to prevent waste and deterioration of the property, and to protect the interests of the parties involved. In light of these findings, the court appointed trustees to oversee the sale of the property, and made orders under section 66G of the Conveyancing Act accordingly. The court also noted that, given the joint tenancy had not been severed at the time of the hearing, the sale would result in the property being held on trust for sale, with the proceeds to be distributed according to the interests of the parties.

The final orders of the court included the appointment of trustees, the direction for the sale of the property, and the provision for the distribution of the proceeds of the sale in accordance with the interests of the parties. The court also directed that the costs of the application be paid by the applicants and the respondents equally.

Orders