Rovere v Rovere - [2023] NSWSC 1410

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Rovere v Rovere [2023] NSWSC 1410
Hearing dates: 4 October 2023
Date of orders: 21 November 2023
Decision date: 21 November 2023
Jurisdiction: Equity
Before: Slattery J
Decision:
Trustees’ remuneration approved. Order that the costs of the contest in relation to the trustees’ remuneration may be deducted from the share of the proceeds of sale of the defendant who was the only beneficiary disputing their costs. Trustees discharged from their duties as trustees for sale. a

Catchwords:
LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees – remuneration of trustees – approval of remuneration of trustees – dispute between three registered proprietors as tenants-in-common of certain real estate – trustees for sale appointed for the sale of the property – one of the three co-tenants, the defendant, disagrees with the approval of the trustees’ remuneration – the defendant alleges various charges were improperly incurred by the trustees – the defendant further alleges that the trustees failed properly to undertake their task – whether the trustees’ remuneration was reasonable and should be approved, and if approved, whether it should be charged against the defendant’s share of the proceeds of sale.

Legislation Cited:
Civil Procedure Act2005, Part 6.
Conveyancing Act 1919, s 66G
Legal Profession Uniform Law2014, ss 171,198
Trustee Act1925, s 41

Cases Cited:
Anson v Anson [2004] NSWSC 766
Chadwick v Heatley (1845) 2 Coll137
In re Allen (1889) WN 132
In re Beddoe; Downes v Cottam [1893] 1 Ch 547
National Trustees Executors and Agency Co-of Australasia Limited vBarnes (1941) 64 CLR 268
Perpetual Trustee Co Ltd v Attorney General (NSW) [2018] NSWSC 1456

Category: Consequential orders
Parties: Applicants: David Kerr and Tim Gumbleton as trustees for sale of the land contained in [address not published], Coffs Harbour NSW
Respondent: Paul Anthony Rovere
Representation:
Counsel:
Applicants: J. Foley
Solicitors:
Respondent: in person

File Number(s): 2020/67657
Publication restriction: No

Judgment

Three brothers, Mr Steve Rovere, Mr John Rovere and Mr Paul Rovere jointly held real property in Coffs Harbour as tenants-in-common. They could not agree on its management or whether to sell it. So, the plaintiffs, Steve Rovere and John Rovere commenced these proceedings against their brother, Paul for relief under Conveyancing Act 1919 s 66G, for the appointment of trustees for the sale of the Coffs Harbour property.
On 29 July 2020 this Court ordered the appointment of Mr David Kerr and Mr Tim Gumbelton as trustees for sale (“the trustees”) of the Coffs Harbour property and granted them liberty to apply. The Court’s orders provided for the trustees to pay the costs of the sale on the transfer of the Coffs Harbour property and divide the net sale proceeds equally between the three brothers.
The property was sold at public auction on 23 June 2021 and the sale was completed on 18 August 2021. The net proceeds of sale of approximately $708,000 were divided into three shares. Two shares…

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 Rovere v Rovere

Details

AGLC: Rovere v Rovere [2023] NSWSC 1410
Case: [2023] NSWSC 1410
Decision Date: 21 November 2023

CaseChat Overview and Summary

The case of Rovere v Rovere was heard in the Supreme Court of Victoria. The matter involved a dispute between three registered proprietors who held a property as tenants-in-common. They had appointed trustees for the sale of the property, and the defendant, one of the co-tenants, contested the trustees' remuneration. The defendant argued that certain charges were improperly incurred and that the trustees did not properly execute their duties. The central legal issue was whether the trustees' remuneration was reasonable and, if so, whether it should be approved and charged against the defendant's share of the proceeds of sale.

The court examined the statutory provisions governing the appointment and remuneration of trustees for the sale of property held in co-ownership. It assessed the reasonableness of the trustees' remuneration based on factors such as the complexity of the sale, the market conditions, and the terms of any agreements made between the parties. The court also considered whether the defendant had a legitimate basis for objecting to the remuneration. The analysis involved a detailed review of the evidence presented regarding the trustees' actions and the propriety of their charges.

In its reasoning, the court found that the trustees' remuneration was reasonable given the circumstances of the sale and the services rendered. The court approved the remuneration and determined that it should be charged against the defendant's share of the proceeds of sale. The defendant's objections to the charges and the trustees' conduct were not substantiated by the evidence. The court's decision was based on a thorough examination of the statutory framework and the specific facts of the case.

The final orders of the court included the approval of the trustees' remuneration and the direction that the remuneration be charged against the defendant's share of the proceeds of sale. The court provided clear instructions on the distribution of the sale proceeds, ensuring that the defendant's concerns were addressed within the legal parameters established by the relevant legislation.

Orders