Thomson v Sweeney - [2013] NSWSC 1383

Supreme Court

New South Wales

Medium Neutral Citation: Thomson v Sweeney & Ors [2013] NSWSC 1383
Hearing dates: Monday, 9 September 2013
Decision date: 09 September 2013
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to paras [37] and [42] of judgment.

Catchwords: PROCEDURE - costs - parties settled except as to costs - substantive proceedings concerned application for appointment of trustees for sale of land pursuant to s 66G of the Conveyancing Act 1919 - appropriate costs order when settlement effectively a surrender by one party - appropriate form of orders when one party has order under s 66I but has to account for costs of both parties that would be deducted from full purchase price
Legislation Cited: Conveyancing Act 1919
Civil Procedure Act 2005
Cases Cited: McKay v McKay [2008] NSWSC 256
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Spathis v Nanos (No 2) [2008] NSWSC 470
Barel v Segal (No 3) [2012] NSWSC 1319
Botros v Frank [2013] NSWSC 712
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
One.Tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548
Tsaprazis v Goldcrest Properties Pty Ltd [2000] NSWSC 765
Segal v Barel [2013] NSWCA 92
Texts Cited: Young, Cahill & Newton, Annotated Conveyancing and Real Property Legislation 2010-2011
Category: Principal judgment
Parties: George Thomson (Plaintiff)
Phillip Patrick Sweeney (1st Defendant)
Kim Maree Sweeney (2nd Defendant)
Representation: Counsel:
D M Flaherty (Plaintiff)
J Merkel (Defendants)
Solicitors:
Boyd Lawyers (Plaintiff)
Slater Gordon (Defendants)

File Number(s): 2012/368568

Judgment

HIS HONOUR: This judgment concerns questions of costs arising from an application for the appointment of trustees for sale of land. That application was made pursuant to s 66G of the Conveyancing Act 1919. The plaintiff and the defendants are co-owners of land at Elands in New South Wales in the proportion of the plaintiff as to a 50 per cent and the defendants, as joint tenants, as to the remaining 50 per cent share.

The plaintiff filed a summons on 27 November 2012 seeking orders for the appointment of two individuals as trustees of the land to be held by them upon the statutory trusts for sale under Div 6 of Pt 4 of the Conveyancing Act. On 4 April 2013 the defendants filed a cross-summons. Paragraph 1 of the cross-summons sought an order that the land be vested in the trustees to be held by them on a statutory trust partition or, in the alternative, that the property be vested in the trustees on a statutory trust for sale. Paragraph 3 of the cross-summons sought an order pursuant to s 66I of the Conveyancing Act that the defendants be permitted to purchase the property, whether at auction or by private treaty, without payment of a deposit; that they be permitted to set off their interest in the property against the proceeds of sale of the property; and that they be permitted to set off an amount of $29,160…

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 Thomson v Sweeney

Details

AGLC: Thomson v Sweeney [2013] NSWSC 1383
Case: [2013] NSWSC 1383
Decision Date: 09 September 2013

CaseChat Overview and Summary

The case of Thomson v Sweeney involved the applicant, Thomson, who sought an order for the appointment of trustees for the sale of certain land under section 66G of the Conveyancing Act 1919. The defendant, Sweeney, was the registered owner of the land. The dispute arose after the parties settled all issues except for the question of costs. The case was heard in the Supreme Court of New South Wales. The primary focus of the litigation was whether the settlement constituted a surrender by Sweeney and the appropriate form of the costs order when one party has an order under section 66I but has to account for the costs of both parties that would be deducted from the full purchase price.

The court had to determine the nature of the settlement reached by the parties, specifically whether it constituted a surrender by Sweeney, and the appropriate form of the costs order. The court also needed to decide how to handle the situation where one party had an order under section 66I but had to account for the costs of both parties, which would be deducted from the full purchase price. The primary legal issue was the interpretation of the settlement terms and the appropriate costs order in light of the settlement and the statutory provisions.

The court found that the settlement effectively constituted a surrender by Sweeney, as the terms of the settlement indicated that Sweeney was effectively relinquishing his interest in the land to Thomson. The court noted that the settlement was comprehensive and covered all aspects of the dispute, except for the issue of costs. The court also determined that the appropriate form of the costs order was one where Sweeney would account for the costs of both parties, which would be deducted from the full purchase price. This approach ensured that the costs were fairly apportioned between the parties, reflecting the comprehensive nature of the settlement. The court's decision provided clarity on the interpretation of the settlement and the appropriate form of the costs order in such circumstances.

Orders