Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Segal v Barel (No 2) [2013] NSWCA 148 Hearing dates: On the papers Decision date: 12 June 2013 Before: McColl JA; Barrett JA; Preston CJ of LEC Decision: 1.Appeal allowed.
2.Set aside orders (1), (2), and (3) made on 2 November 2012.
3.In lieu thereof, order that pursuant to s.66G of the Conveyancing Act 1919 Margaret Colleen Hole of Level 7, 9 Barrack Street, Sydney and Michael Osborne of Level 14, 6 O'Connell Street, Sydney, solicitors, be appointed trustees of the property known as XXXX Street, North Bondi (also referred to as Dover Heights) in the State of New South Wales and being the whole of the land the subject of folio identifier 152/740177 and that the property vest in such trustees, subject to incumbrances affecting the entirety, but free from incumbrances affecting any undivided shares, to be held by them on the statutory trust for sale.
4.Vary order (7) made on 2 November 2012 by deleting the words "upon partition" and inserting "upon termination of the co-ownership of the property" in lieu thereof.
5.Set aside orders (8) and (9) made on 2 November 2012.
6.In lieu thereof order that the trustees are to apply the proceeds of sale (subject to Order 7 of these orders) as follows:
6.1to the payment of all costs and expenses of the sale;
6.2to divide the balance into 2 equal shares, one for the appellant and one for the respondent;
6.3as to the appellant's share:
(a)to the payment to the Commonwealth Bank of Australia for the appellant's share of the housing loan (account 255477505), the appellant's share of that loan to be calculated in the ratio of 132,891.00:894,172.29 to the total amount of the loan then due;
(b)to the payment to the Commonwealth Bank of Australia for the balance of Viridian account 2124 10567813;
(c)to the payment to the respondent of the sum of $428,080.50; and
(d)to the payment of the balance to the appellant;
6.4as to the respondent's share:
(a)to the payment to the Commonwealth Bank of Australia for the respondent's share of the housing loan (account 255477505), the respondent's share of that loan to be calculated in the ratio of 761,280.29:894,172.29 to the total amount of the loan then due;
(b)to the payment to the Commonwealth Bank of Australia for the balance of Viridian account 2124 10520759; and
(c)to the payment of the balance to the respondent.
7.Set aside Order (14) made on 2 November 2012 and order in lieu thereof that the costs of both parties of the Equity Division proceedings be paid out of the proceeds of sale before they are applied in accordance with Order 6 of these orders.
8.Order that the respondent pay the appellant's costs of the appeal.
9. Order that the respondent have a certificate under the Suitors' Fund Act 1951, if qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken…
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- AGLC
- Segal v Barel (No 2) [2013] NSWCA 148
- Case
- [2013] NSWCA 148
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the initial orders made by the Equity Division were appropriate, particularly concerning the appointment of trustees for the sale of the co-owned property and the subsequent distribution of the proceeds. This involved considering the application of section 66G of the *Conveyancing Act 1919* (NSW) for the appointment of trustees for sale and the principles governing the allocation of sale proceeds and costs in such proceedings. The court also had to consider the appropriate wording for orders relating to the termination of co-ownership and the payment of legal costs.
The Court of Appeal allowed the appeal, setting aside the orders of 2 November 2012. It ordered the appointment of new trustees to hold the property on a statutory trust for sale. The court varied the original orders to reflect that the co-ownership was to be terminated upon the sale of the property. Crucially, the court ordered that the costs of both parties of the Equity Division proceedings were to be paid out of the proceeds of sale before distribution. The proceeds were then to be divided equally between the appellant and respondent, with specific directions for the payment of outstanding loans and account balances from each party's share. The respondent was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1.Appeal allowed.
2.Set aside orders (1), (2), and (3) made on 2 November 2012.
3.In lieu thereof, order that pursuant to s.66G of the Conveyancing Act 1919 Margaret Colleen Hole of Level 7, 9 Barrack Street, Sydney and Michael Osborne of Level 14, 6 O'Connell Street, Sydney, solicitors, be appointed trustees of the property known as XXXX Street, North Bondi (also referred to as Dover Heights) in the State of New South Wales and being the whole of the land the subject of folio identifier 152/740177 and that the property vest in such trustees, subject to incumbrances affecting the entirety, but free from incumbrances affecting any undivided shares, to be held by them on the statutory trust for sale.
4.Vary order (7) made on 2 November 2012 by deleting the words "upon partition" and inserting "upon termination of the co-ownership of the property" in lieu thereof.
5.Set aside orders (8) and (9) made on 2 November 2012.
6.In lieu thereof order that the trustees are to apply the proceeds of sale (subject to Order 7 of these orders) as follows:
6.1to the payment of all costs and expenses of the sale;
6.2to divide the balance into 2 equal shares, one for the appellant and one for the respondent;
6.3as to the appellant's share:
(a)to the payment to the Commonwealth Bank of Australia for the appellant's share of the housing loan (account 255477505), the appellant's share of that loan to be calculated in the ratio of 132,891.00:894,172.29 to the total amount of the loan then due;
(b)to the payment to the Commonwealth Bank of Australia for the balance of Viridian account 2124 10567813;
(c)to the payment to the respondent of the sum of $428,080.50; and
(d)to the payment of the balance to the appellant;
6.4as to the respondent's share:
(a)to the payment to the Commonwealth Bank of Australia for the respondent's share of the housing loan (account 255477505), the respondent's share of that loan to be calculated in the ratio of 761,280.29:894,172.29 to the total amount of the loan then due;
(b)to the payment to the Commonwealth Bank of Australia for the balance of Viridian account 2124 10520759; and
(c)to the payment of the balance to the respondent.
7.Set aside Order (14) made on 2 November 2012 and order in lieu thereof that the costs of both parties of the Equity Division proceedings be paid out of the proceeds of sale before they are applied in accordance with Order 6 of these orders.
8.Order that the respondent pay the appellant's costs of the appeal.
9. Order that the respondent have a certificate under the Suitors' Fund Act 1951, if qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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