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Starr-Diamond v Diamond (No 3)

Starr-Diamond v Diamond (No 3)

Case [2013] NSWSC 351 5 April 2013

Partition of Land

Statutory Trust for Sale

Trustees for Sale

Jurisdiction of Courts (Cross Vesting) Act 1987

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Simone Starr-Diamond v Talus Diamond (No. 3) [2013] NSWSC 351
Hearing dates: 5 April 2013
Decision date: 05 April 2013
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Trustees for Sale appointed for the two Tasmanian properties. . Plaintiff to pay the defendant's costs of the present motion for appointment of trustees for sale. See paragraph [21] of these reasons for full orders.

Catchwords: REAL PROPERTY - partition of land - statutory trust for sale - motion to appoint trustees for sale for two parcels of real estate in Tasmania - motion consequent upon proceedings in New South Wales decided under the Property Relationships Act 1984 s 20, Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675 - appointment sought in respect of the Tasmanian properties in exercise of the Court's power under Jurisdiction of Courts (Cross Vesting) Act 1987 (s 4(3) - whether court has power to make the orders sought - plaintiff does not appear at hearing of motion - whether plaintiff properly served with notice of motion - on what terms the proposed trustees for sale should be appointed
Legislation Cited: Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW); Conveyancing Act 1919 (NSW); Partition Act 1869 (Tas); Service and Execution of Process Act 1992 (Cth)
Cases Cited: Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675; Starr-Diamond v Diamond [2013] NSWCA 7, Starr-Diamond v Talus Diamond (No 2) [2013] NSWSC 1650; Dixon v Roy (1991) 5 BPR 11,655; Equus Financial Services Ltd & Anor v RMBL Investments Pty Ltd (1996) 22 ACSR 744; British South Africa Co v Companhia de Mocambique [1893] AC 602; Harrison v Schipp (2002) 54 NSWLR 738; Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360.
Category: Consequential orders
Parties: Plaintiff:- Simone Starr-Diamond
Defendant:- Talus Diamond
Representation: Counsel:
Defendant:- F. Sinclair
Solicitors:
Defendant:- S. Hodges

File Number(s): 2008/278342

Judgment

This is my third judgment in these proceedings. My principal judgment in the matter was given on 19 June 2012: Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675. My second judgment was given on 20 July 2012: Starr-Diamond v Talus Diamond (No 2) [2012] NSWSC 1650. The second judgment dealt with the form of final orders and costs issues. But the second judgment did not appoint trustees for sale of the Baker's Beach and Ambleside properties in Tasmania. This third judgment now deals with that issue, on the defendant's motion. Persons, matters and things are referred to in this judgment in the same way as they are in my principal judgment and the second judgment. All three judgments should be read together.

Since the second judgment the plaintiff has commenced proceedings in the Court of Appeal seeking an extension of the stay upon the orders made in my second judgment. Hoeben JA (as his Honour then was) determined the plaintiff/appellant's stay application adversely to her on 12 February 2013: Starr-Diamond v Diamond [2013] NSWCA 7. The…

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 Starr-Diamond v Diamond (No 3)

Details

AGLC: Starr-Diamond v Diamond (No 3) [2013] NSWSC 351
Case: [2013] NSWSC 351
Decision Date: 05 April 2013

CaseChat Overview and Summary

Starr-Diamond v Diamond (No 3) concerned a dispute over the partition and sale of two parcels of real estate located in Tasmania. Simone Starr-Diamond, the plaintiff, sought an order under the Jurisdiction of Courts (Cross Vesting) Act 1987 for the appointment of trustees for sale of the properties. This application followed a decision in New South Wales, where the parties' relationship was determined under the Property Relationships Act 1984. The court was tasked with deciding whether it had the power to appoint trustees for sale of the Tasmanian properties and, if so, what terms should govern the appointment.

The legal issues included whether the court could exercise its power under the Cross Vesting Act in relation to the Tasmanian properties, whether the plaintiff had been properly served with the notice of motion, and what terms should apply to the appointment of trustees for sale. The court had to consider whether the exercise of its jurisdiction in this matter was appropriate and whether the plaintiff had been duly notified of the proceedings. Additionally, the court needed to determine the appropriate terms and conditions for appointing the trustees.

In delivering the judgment, the court held that it did have the power to make the orders sought under the Cross Vesting Act. However, the plaintiff did not attend the hearing of the motion, and there was a question as to whether she had been properly served with the notice of motion. Despite these concerns, the court proceeded to consider the terms of the appointment of trustees for sale. The court concluded that it was appropriate to appoint trustees for sale on specific terms that were outlined in the judgment. These terms included the authority for the trustees to manage and sell the properties in a manner that would best serve the interests of all parties involved.

The final orders of the court included the appointment of trustees for sale of the two parcels of real estate in Tasmania on the terms specified in the judgment. The court also directed that further steps be taken to ensure proper service of process to the plaintiff and to address any concerns about her participation in the proceedings.

Orders