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 DiamondRepresentation: 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…
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- AGLC
- Starr-Diamond v Diamond (No 3) [2013] NSWSC 351
- Case
- [2013] NSWSC 351
- Decision Date
CaseChat Overview and Summary
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
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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