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Spathis v Nanos

Spathis v Nanos

Case [2008] NSWSC 418 13 May 2008

Conveyancing Act 1919

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CITATION: Spathis v Nanos [2008] NSWSC 418

HEARING DATE(S): 5 May 2008

JUDGMENT DATE :
13 May 2008

JURISDICTION: 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 2002

CATEGORY: 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 687

PARTIES:
PLAINTIFF
Gerasimos Spathis
DEFENDANT
Amalia Nanos

FILE NUMBER(S): SC 4498 of 2007

COUNSEL: Mr I E Davidson - plaintiff
Mr S W Climpson - defendant

SOLICITORS: 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…

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 Spathis v Nanos

Details

AGLC: Spathis v Nanos [2008] NSWSC 418
Case: [2008] NSWSC 418
Decision Date: 13 May 2008

CaseChat Overview and Summary

In the case of Spathis v Nanos, the plaintiff sought an order for the sale of a jointly owned property under section 66G of the Conveyancing Act 1919. The defendant, who was also a co-owner, had expressed interest in purchasing the plaintiff's share of the property. The dispute centred around whether the court should appoint trustees for the sale and, if so, whether the orders should be tailored to allow the defendant to buy the plaintiff's share at a price determined by a valuation. The case was heard and determined by the Supreme Court of New South Wales.

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