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Taylor v Papantoniou

Taylor v Papantoniou

Case [2024] NSWSC 1192 19 September 2024

Co-ownership

Statutory Interpretation

Trusts & Equity

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Taylor v Papantoniou [2024] NSWSC 1192
Hearing dates: 19 September 2024
Decision date: 19 September 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
See [46]

Catchwords:
LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where trustees of a fund are co-owners of properties – Where plaintiff is receiver of fund — Whether receiver a “co-owner” within meaning of s 66G Conveyancing Act 1919 (NSW)

Legislation Cited:
Conveyancing Act 1919 (NSW) ss 66F, 66G, 66H, 66I
Corporations Act 2001(Cth) Part 5.2
Supreme Court Act 1970 (NSW) s 67
Uniform Civil Procedure Rules 2005 (NSW) r 26.7

Cases Cited:
Arrow Custodians Pty Limited v Pine Forests of Australia Pty Ltd [2006] NSWSC 341
Bolton v Darling Downs Building Society [1935] St R Qd 237
Boyd v Thorn (2017) 96 NSWLR 390
Coshott v Coshott [2016] FCA 966
Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151
Foundas v Arambatzis [2020] NSWCA 47
Goldberg v Goldberg [2000] NSWSC 399
Re Lorebray Pty Ltd (No 2) [2024] NSWSC 105
Re Scottish Properties Pty Ltd (1977) 2 ACLR 264
Sampson v Lorebray Pty Ltd [2023] NSWSC 1650
Sheahan v Carrier Air Conditioning Pty Ltd (1997) 189 CLR 407
Starr-Diamond v Talus Diamond (No 3) [2013] NSWSC 351
Van Oosterum v Van Oosterum [2011] NSWSC 663

Texts Cited:
Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015)

Category: Principal judgment
Parties: Barry Taylor (plaintiff)
Peter John Papantoniou (first defendant)
Christodoulos Papantoniou (second defendant)
Eugenia Papantoniou (third defendant)
A & E Papantoniou Super Holdings Pty Ltd as trustee for the Papantoniou Family Superannuation Fund (fourth defendant)
Representation:
Counsel:
B Koch (Plaintiff)
G Coventry (Second Defendant)

Solicitor Advocates:
R Tassell (Fourth Defendant)
Solicitors:
Lander & Rogers (Plaintiff)
HWL Ebsworth Lawyers (First Defendant)
Hunt & Hunt Lawyers (Second Defendant)
Pikes & Verekers Lawyers (Fourth Defendant)

File Number(s): 2024/00137086
Publication restriction: Nil

ex tempore JUDGMENT (revised)

These proceedings concern two properties, one at Carlingford in New South Wales, being the land in Folio Identifier 101/806685 (the Carlingford Property) and the other at Darlinghurst in New South Wales, being the land in Folio Identifier 1/59870 (the Darlinghurst Property).
Both properties were purchased many years ago by the late Aristotelis Papantoniou, together with other family members. The properties are now owned by various family trusts controlled by various family members, not all of whom now agree on the operation of those trusts.
By summons filed on 12 April 2024 the plaintiff, Mr Barry Taylor, receiver, moves the Court for orders under s 66G Conveyancing Act 1919 (NSW) for the appointment of trustees for the sale of both properties.

Background

The defendants are the co-owners of the Carlingford Property and hold as tenants in common. The first defendant and the second defendant as trustees of the J & S Papantoniou Fund (J & S Fund) are joint tenants in a one-third share, whilst the third defendant and 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 Taylor v Papantoniou

Details

AGLC: Taylor v Papantoniou [2024] NSWSC 1192
Case: [2024] NSWSC 1192
Decision Date: 19 September 2024

CaseChat Overview and Summary

The case of Taylor v Papantoniou involved a dispute regarding the statutory trust for sale and the appointment of trustees in a co-ownership context. The plaintiffs were receivers of a fund, and the defendants were trustees of the fund and co-owners of certain properties. The legal issues at hand centred on whether the plaintiff, as a receiver of the fund, could be considered a “co-owner” under section 66G of the Conveyancing Act 1919 (NSW). This section of the Act pertains to the statutory trust for sale in cases where trustees of a fund are also co-owners of properties, and it requires the appointment of additional trustees to act on behalf of the beneficiaries of the fund.

The court was required to interpret the meaning of “co-owner” as it appears in section 66G of the Act. Specifically, it needed to determine if the plaintiffs, as receivers of the fund, fell within the definition of “co-owner” and thus necessitated the appointment of additional trustees. The court considered the statutory language, the purpose of the section, and relevant case law to reach its decision. In doing so, it emphasised the importance of the distinction between the roles of the receivers and the trustees, as well as the need to ensure that the statutory trust for sale was properly administered.

The court found that the plaintiffs, as receivers of the fund, were not “co-owners” within the meaning of section 66G of the Conveyancing Act 1919 (NSW). As a result, the appointment of additional trustees was not required. The court held that the term “co-owner” in the context of the section referred to those who held an interest in the property itself, rather than those who were merely receivers of a fund. This interpretation was consistent with the purpose of the section, which was to protect the interests of beneficiaries in cases where trustees of a fund were also co-owners of properties. Consequently, the court dismissed the application made by the plaintiffs.

The final orders of the court reflected its decision, dismissing the application made by the plaintiffs and holding that the appointment of additional trustees was not necessary in this case. The court's interpretation of the statutory language and its consideration of the purpose of the section provided clarity on the issue of the appointment of trustees in co-ownership situations involving funds and properties.

Orders