Richards v Withers - [2010] NSWSC 1158

CITATION: Richards v Withers [2010] NSWSC 1158

HEARING DATE(S): 11 October 2010

JUDGMENT DATE :
14 October 2010

JUDGMENT OF: Hallen AsJ

DECISION: 1. Parties and agent to comply with District Court orders.
2. Agent to determine whether necessary to appoint one or two conjunction agents to assist in marketing the Gannons Creek property.
3. Grant leave to the agent to approach the Court for directions or orders to assist in implementing sale or in implementing orders.
4. Defendant to vacate property no later than 14 days after auction.
5. Defendant in the meantime to pay $200 per week by way of rent or occupation fee, the first of such payments to be made 7 days after judgment delivered.
6. Liberty to apply granted.
7. Parties to bring in Short Minutes.
8. If parties are unable to reach agreement submissions on costs at the time orders are made.

CATCHWORDS: FAMILY LAW - de facto relationships - existing orders of District Court adjusting parties' interests in property under Property (Relationships) Act - one order made being that jointly owned property be sold and proceeds be applied in stated manner - Plaintiff unable to obtain benefit of order - jurisdiction of Supreme Court to act in aid of and be auxiliary to District Court in matters under Property (Relationships) Act - REAL PROPERTY - land in co-ownership - whether order appointing trustees for sale should be made

LEGISLATION CITED: Civil Procedure Act, 2005
Conveyancing Act 1919, s 66G
Property (Relationships) Act 1984, ss 9, 13, 20(1)
Uniform Civil Procedure Rules 2005, rule 27.1

CATEGORY: Principal judgment

CASES CITED: Ayres v Evans (1981) 39 ALR 129
Cusick v Savage [2008] NSWSC 212
Hall v Woolf [1908] HCA 74; (1908) 7 CLR 207

PARTIES: Patricia Richards (Plaintiff)
Lynette Withers (Defendant)

FILE NUMBER(S): SC 2010/251133

COUNSEL: D Lloyd (Plaintiff)
D Flaherty (Defendant)

SOLICITORS: Byrnes & Cox Lawyers (Plaintiff)
Hannaway Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALLEN ASJ

14 OCTOBER 2010

2010/251133 RICHARDS v WITHERS

JUDGMENT

: These proceedings were initiated by summons filed on 28 July 2010. By notice of motion, filed on the same day, the Plaintiff, Patricia Richards, sought an order that the proceedings relating to part of the relief sought, should be expedited, and that the relief sought in relation to the balance, namely, the claim for damages, should be stood over to a date to be arranged.

2 With the consent of the Defendant, Lynette Withers, the proceedings were expedited, and the matter was listed for hearing on 11 October 2010. The principal relief sought by the Plaintiff is pursuant to s 66G of the Conveyancing Act 1919, and an order that “upon the appointment of the Trustees under s 66G, that the Defendant vacate the property situated at Gannons Creek, New South Wales”.

3 On the morning of the hearing, the Plaintiff sought leave to file an amended Summons. The Defendant opposed that application. Because I did not consider that the Defendant was…

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 Richards v Withers

Details

AGLC: Richards v Withers [2010] NSWSC 1158
Case: [2010] NSWSC 1158
Decision Date: 14 October 2010

CaseChat Overview and Summary

In the case of Richards v Withers, the parties involved were the plaintiff, Richards, and the defendant, Withers. The dispute centred around the interpretation and enforcement of property orders made by the District Court under the Property (Relationships) Act in relation to their jointly owned property. The Supreme Court of New South Wales was tasked with determining whether it had the jurisdiction to act in aid of and be auxiliary to the District Court in matters under the Property (Relationships) Act and, if so, whether it should appoint trustees for the sale of the jointly owned property.

The primary legal issues the court had to decide were whether the Supreme Court had the requisite jurisdiction to assist the District Court and, if it did, whether such intervention was warranted given the circumstances of the case. Specifically, the court needed to determine whether the Supreme Court could intervene to appoint trustees for the sale of jointly owned property when the original order for sale had not been complied with, thereby preventing the plaintiff from benefiting from the original court order.

The Supreme Court held that it had the jurisdiction to act in aid of and be auxiliary to the District Court in matters under the Property (Relationships) Act. The court reasoned that the Supreme Court could intervene to ensure that the original orders of the District Court were properly executed and that parties did not derive an unjust benefit from non-compliance with those orders. The court concluded that, given the plaintiff's inability to obtain the benefit of the original order due to the defendant's actions, it was appropriate to appoint trustees for the sale of the jointly owned property. This decision was made to ensure that the original court order was given effect and that the proceeds from the sale were applied in the manner intended by the District Court.

Orders