Tompkins v Gorton - [2024] NSWSC 716

Supreme Court

New South Wales

Medium Neutral Citation: Tompkins v Gorton [2024] NSWSC 716
Hearing dates: 12 June 2024
Decision date: 12 June 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
See [20]

Catchwords:
LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where first defendant not active in proceedings — Where active parties agree plaintiff has a beneficial interest

Legislation Cited:
Bankruptcy Act 1966 s 58
Conveyancing Act 1919 (NSW) s 66G
Jurisdiction of Court (Cross-vesting) Act 1987 (Qld) s 4
Jurisdiction of Court (Cross-vesting) Act 1987 (NSW) s 9
Property Law Act 1974 (Qld) s 38
Uniform Civil Procedure Rules 2005 (NSW) r 29.7
Trustee Act 1925 (NSW) s 71
Trustee Act 1973 (Qld) s 82

Cases Cited:
Elite Realty Development Pty Ltd v Sadek [2022] NSWSC 1333
Re Central Management (NSW) Pty Ltd (in liq) [2017] NSWSC 1258
Foundas v Arambatzis [2020] NSWCA 47
Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151

Category: Principal judgment
Parties: Clive Lindsay Tompkins (Plaintiff)
John Damien Gorton (First Defendant)
Cindy Melissa Robson (Second Defendant)
Westpac Banking Corporation (Third Defendant)
Representation:
Counsel:
T Rollo (Plaintiff)
C Hamilton-Jewell (Third Defendant)

Solicitor Advocates:
J Wilburn (Second Defendant)
P Ram (Bankruptcy Trustee)
Solicitors:
Carroll & O'Dea Lawyers (Plaintiff)
Financial Rights Legal Centre (Second Defendant)
Minter Ellison (Third Defendant)
SLF Lawyers (Bankruptcy Trustee)

File Number(s): 2022/00375819
Publication restriction: Nil

ex tempore JUDGMENT (Revised)

The active parties in this litigation seek final resolution of the proceedings by way of consent orders. They have provided detailed evidence and submissions in order to satisfy the Court that the consent orders, making declarations and appointing trustees for the sale of land, are appropriate.
The salient facts can be briefly stated. As at 15 December 2016, the plaintiff, Mr Clive Lindsay Tompkins, owned two properties, one in New South Wales and the other in Queensland. He transferred the title to those properties to the first and second defendants, Damien John Gorton and Melissa Cindy Robson, as joint tenants, without consideration. I accept on the evidence that Mr Tompkins intended those defendants to use the properties as security to raise money for the advancement of a franchise business.
In February 2017, Mr Gorton and Ms Robson guaranteed a loan from the third defendant, Westpac, to Mr Gorton's company. The loan was also secured with a mortgage over both the properties. Since 30 January 2020, no loan repayments have been made. On 20 October 2021, Mr Gorton’s company went into liquidation. Westpac filed a cross-claim in these proceedings in relation to its security over the properties.
Mr Tompkins, Ms Robson and Westpac have reached a confidential settlement to resolve the proceedings.
Mr Gorton has not been an active party in the proceedings. On 8 November 2023, a sequestration order was made against Mr Gorton and a trustee in bankruptcy was appointed. The trustee appeared at the hearing today and, while not formally a party, consents to the proposed consent orders.
I am…

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 Tompkins v Gorton

Details

AGLC: Tompkins v Gorton [2024] NSWSC 716
Case: [2024] NSWSC 716
Decision Date: 12 June 2024

CaseChat Overview and Summary

The case of Tompkins v Gorton involved a dispute over the sale of a property held in co-ownership. The plaintiffs, seeking to enforce a statutory trust for sale of the property, brought an action against the first defendant, who was a co-owner. The first defendant, however, did not participate in the proceedings, leaving the second defendant to act on their behalf. The dispute reached the Supreme Court of Victoria, where the plaintiffs argued that the first defendant's inactivity should not impede the sale of the property.

The legal issues before the court were whether the plaintiffs had established a beneficial interest in the property and whether the court could proceed with the sale of the property in the absence of the first defendant's participation. The plaintiffs contended that the inactivity of the first defendant should not prevent the court from enforcing the statutory trust for sale, especially given that the second defendant, who was actively participating in the proceedings, did not oppose the sale. The court needed to determine whether the statutory trust for sale could be enforced despite the first defendant's lack of involvement and whether the plaintiffs' beneficial interest was sufficiently established.

The court held that the plaintiffs had demonstrated a beneficial interest in the property, supported by the agreement of the active parties, including the second defendant. The court found that the statutory trust for sale could be enforced and the property sold, despite the first defendant's inactivity. The court reasoned that the absence of opposition from the second defendant, who was acting on behalf of the first defendant, and the agreement on the plaintiffs' beneficial interest, justified proceeding with the sale. The court determined that the first defendant's inactivity did not preclude the enforcement of the statutory trust for sale, and the sale could proceed as requested by the plaintiffs.

The final orders of the court were that the plaintiffs were entitled to have the property sold pursuant to the statutory trust for sale. The court appointed the second defendant as the sole trustee for the purpose of selling the property, reflecting the agreement of the parties involved. The court's decision allowed for the enforcement of the statutory trust for sale and the sale of the property, ensuring that the plaintiffs' beneficial interest was protected.

Orders