CITATION: Spathis v Nanos [2008] NSWSC 418 HEARING DATE(S): 5 May 2008
JUDGMENT DATE :
13 May 2008JURISDICTION: Equity JUDGMENT OF: Jagot AJ CATCHWORDS: REAL PROPERTY - co-owner seeking sale under s 66G of Conveyancing Act 1919 - defendant keen to purchase plaintiff's share of property - whether orders should be made appointing trustees for sale - if orders made whether orders should be moulded to accommodate defendant's wish to purchase following valuation - orders under s 66G made LEGISLATION CITED: Conveyancing Act 1919
Property, Stock and Business Agents Act 2002CATEGORY: Principal judgment CASES CITED: Cain v Cain [2007] NSWSC 623
Callahan v O’Neill [2002] NSWSC 877
Grizonic v Suttor (2004) 12 BPR 22,797
Hogan v Baseden (1997) 8 BPR 15,723
Ngatoa v Ford (1990) 19 NSWLR 72
Tory v Tory [2007] NSWSC 1078
Williams v Legg (1993) 29 NSWLR 687PARTIES: PLAINTIFF
DEFENDANT
Gerasimos Spathis
Amalia NanosFILE NUMBER(S): SC 4498 of 2007 COUNSEL: Mr I E Davidson - plaintiff
Mr S W Climpson - defendantSOLICITORS: JSM Lawyers - plaintiff
James Lawyers - defendant
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
Jagot AJ
13 May 2008
4498 of 2007 GERASIMOS SPATHIS v AMALIA NANOS
JUDGMENT
1 HER HONOUR: This is an application under s 66G of the Conveyancing Act 1919 for an order appointing trustees for the sale of land known as 39 – 45 Tickner Street, Castlereagh.
2 The plaintiff and defendant are co-owners of the property in equal shares. The plaintiff and the defendant’s father purchased the property as an investment. The defendant’s father transferred his share to the defendant in September 1997. The plaintiff wishes to access his share of the property due to declining health (he has Parkinson’s disease and is building another residence on his land with wheelchair access and additional accommodation).
3 The defendant opposed the making of an order under s 66G on four grounds: - (i) the desire of the defendant to purchase the plaintiff’s share of the property at a fair market value, her open offers to do so, and willingness to give undertakings as necessary to secure this purchase, (ii) an alleged unreasonable change in the plaintiff’s position from a willingness to sell his share to the defendant at a fair market value to an insistence on a sale by trustees (although the defendant accepted that no equitable estoppel could arise on the facts), (iii) the defendant’s belief that a sale to her will involve substantial savings compared to the expense of a sale by trustees, and (iv) a concern arising from the background to this matter that if the property is sold by public auction there might be dummy bids in circumstances where the defendant’s desire to buy the property is well known to the plaintiff and the plaintiff (at one time) insisted the property was worth $1.2 million. The defendant relied on the same matters to support a submission that, if an order is to be made under s…
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- AGLC
- Spathis v Nanos [2008] NSWSC 418
- Case
- [2008] NSWSC 418
- Decision Date
CaseChat Overview and Summary
The court was required to consider two primary legal issues. Firstly, whether the court should exercise its discretion to appoint trustees for the sale of the jointly owned property as requested by the plaintiff. Secondly, if the court decided to appoint trustees, whether it should mould the orders to allow the defendant to purchase the plaintiff's share of the property at a price determined by a valuation. These issues turned on the interpretation of section 66G of the Conveyancing Act 1919 and the relevant case law interpreting this section.
The court determined that it had the discretion to appoint trustees for the sale of the jointly owned property under section 66G of the Conveyancing Act 1919. The court found that the plaintiff's application for the sale of the property was not frivolous or vexatious, and that there were no other means available to resolve the deadlock between the co-owners. The court also considered the defendant's interest in purchasing the plaintiff's share of the property. It found that, while the defendant's desire to purchase was a relevant consideration, it was not determinative of the court's decision. The court ultimately decided to mould the orders to allow the defendant to purchase the plaintiff's share of the property at a price determined by a valuation. The court found that this approach was in the best interests of both parties and would allow for an orderly and efficient sale of the property.
The final orders of the court were that trustees be appointed for the sale of the jointly owned property, and that the defendant be given the opportunity to purchase the plaintiff's share of the property at a price determined by a valuation. The court's decision provides guidance to co-owners in similar situations and highlights the importance of considering all relevant factors when exercising discretion under section 66G of the Conveyancing Act 1919.
Orders
Orders of the court
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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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