Rix v Mahony - [2015] NSWSC 91

Supreme Court

New South Wales

Case Name:	Rix v Mahony
Medium Neutral Citation:	[2015] NSWSC 91
Hearing Date(s):	13 February 2015
Decision Date:	13 February 2015
Jurisdiction:	Equity Division
Before:	McDougall J
Decision:	Dismiss application for review of Registrar’s decision
Catchwords:	PROCEDURE – review of Registrar’s assessment of remuneration to be paid to trustees - where trustees had been appointed by court to sell property under s 66G of the Conveyancing Act - where plaintiff required to persuade reviewing court that order to set aside or vary Registrar’s decision is in the interest of justice - where no evidence given that trustees’ costs were excessive - where evidence justified remuneration sought
Legislation Cited:	Conveyancing Act 1919 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Dae Boong International Co Pty Limited v Gray [2009] NSWCA 11 Rix v Mahony [2009] NSWSC 675 Rix v Mahony [2011] NSWSC 1308 Rix v Mahony [2012] NSWCA 241 Rix v Mahony (No 2) [2012] NSWCA 332 Rix v Mahony & Anor [2013] HCASL 47 Tomko v Palasty (No 2) (2007) 71 NSWLR 61
Category:	Principal judgment
Parties:	Frederick George Rix (Plaintiff) Malcolm George Brown (First Defendant) Romano Di Donato (Second Defendant) Lisa Jane Mahony & Ors (Third Defendant)
Representation:	Solicitors: Frederick George Rix (Plaintiff) (In person) Ken Harkness (First and Second Defendants) Paul Wells (Third Defendant)
File Number(s):	2008/280957

JUDGMENT (EX TEMPORE – REVISED 13 FEBRUARY 2015)

HIS HONOUR: The particular question before the Court today is the review of a Registrar's decision as to the amount of remuneration to be paid to trustees for sale appointed by the Court. Unfortunately, the application today is only a very small fraction indeed of the litigation that underlies this particular question.
So far, the litigation has involved two separate claims by the plaintiff, Mr Rix, in relation to his interest in a property at Rosebery. On 24 July 2009, Forster J gave judgment (Rix v Mahony [2009] NSWSC 675) in which he concluded, in substance, that Mr Rix was entitled to a 25% beneficial interest in that property.
On 25 August 2009, the Court made orders to give effect to the reasons of Forster J. One of the orders made was a declaration that the first defendant, Ms Mahony, (the daughter of Mr Rix), who was a three-quarter proprietor of the property in question, held a one-quarter interest in that property (that is to say, a third of her legal interest) on trust for Mr Rix.
The Court also ordered that two solicitors, Messrs Brown and Di Donato, be appointed trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW).
There has been no appeal from the orders made by the Court pursuant to the judgment of Forster J, to which I have referred, although I should have said that on the day his Honour made those orders he gave supplementary reasons to which it is not necessary to refer.
Mr Rix commenced separate proceedings. They were heard by Bergin CJ…

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 Rix v Mahony

Details

AGLC: Rix v Mahony [2015] NSWSC 91
Case: [2015] NSWSC 91
Decision Date: 13 February 2015

CaseChat Overview and Summary

In Rix v Mahony, the dispute before the court was concerned with the assessment of remuneration for trustees appointed by the court to sell property under section 66G of the Conveyancing Act. The plaintiff, Rix, sought to review the Registrar's decision on the remuneration to be paid to the trustees, Mahony. The primary issue before the court was whether the plaintiff had established that the order to set aside or vary the Registrar's decision was in the interest of justice. This required the plaintiff to demonstrate that the trustees' costs were excessive or otherwise unjustified.

The court needed to determine whether the evidence presented supported the plaintiff's claim that the trustees' remuneration was excessive. The plaintiff bore the onus of persuasion, requiring them to show that the remuneration sought by the trustees was not justified. The court examined the evidence provided and found that there was no evidence presented that the trustees' costs were excessive. The evidence, instead, supported the trustees' claim that the remuneration sought was reasonable and justified. The court concluded that the plaintiff had not met the required standard of proof to have the Registrar's decision set aside or varied.

The court upheld the Registrar's assessment of remuneration and dismissed the plaintiff's application to review the decision. The evidence did not support the plaintiff's contention that the trustees' costs were excessive. Consequently, the plaintiff was not entitled to have the order varied or set aside. The court confirmed that the remuneration as assessed by the Registrar was justified based on the evidence presented. The final orders of the court upheld the Registrar's decision, and the plaintiff's application was dismissed.

Orders