Vanessa Djuricic v Giles Geoffrey Woodgate in his capacity as Trustee of the Bankrupt Estate of Radovan Duricic

[2012] NSWSC 1381

Supreme Court

New South Wales

Medium Neutral Citation:	Vanessa Djuricic -v- Giles Geoffrey Woodgate in his capacity as Trustee of the Bankrupt Estate of Radovan Duricic [2012] NSWSC 1381
Hearing dates:	7 November 2012
Decision date:	07 November 2012
Jurisdiction:	Equity Division
Before:	Windeyer AJ
Decision:	Trustees proposed by defendant be appointed
Catchwords:	REAL PROPERTY - appointment of trustees for sale in case of co-owners - competing sets of trustees proposed - matters to be considered
Cases Cited:	Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341
Category:	Principal judgment
Parties:	Vanessa Djuricic - Plaintiff Giles Geoffrey Woodgate in his capacity as Trustee of the Bankrupt Estate of Radovan Duricic - Defendant
Representation:	Counsel: E. Yin - Plaintiff P. Reynolds - Defendant Solicitors: Mitry Lawyers - Plaintiff Turks Legal - Defendant
File Number(s):	2012/242038

EX TEMPORE Judgment

1. HIS HONOUR:This is an application for the appointment of trustees for sale of property 69 Innisfail Road, Wakeley. The plaintiff and the defendant hold the property in equal shares as tenants in common, the defendant being the trustee of the bankrupt estate of Radovan Duricic, the brother of the plaintiff.

1. There is no objection to the order for the appointment of trustees being made. The only question is who should be the trustees for sale. The plaintiff seeks the appointment of Mr Kassem and Mr Kite, partners in the firm of Cor Cordis; while the defendant seeks the appointment of Mr Crouch and Ms Amirbeaggi as trustees. There is no suggestion that one pair of proposed trustees is superior in ability or knowledge to the other.

1. The matters which are referred to by Young CJ in Eq in Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341 are that in deciding these matters where there is a contest as to who should be appointed trustees for sale four matters are of importance. These are that the Court prefers the preference of the person with the greater interest in the land, that the trustees should be independent and free from conflicts, that the trustees where they have more to do than to sell a piece of real estate should have appropriate skill and experience, and that the Court should endeavour to get the best value for the parties' money. It follows that other things being equal, the cheaper should be preferred.

1. In this particular instance it is only the fourth matter which requires consideration, the others being equal.

1. While it is a little difficult to tell, the charges proposed by Crouch Amirbeaggi show rates of $470 an hour for a partner, $405 for a director and $355 for a manager, with other descending rates for persons of descending order of importance and expertise. The fees proposed by Messrs Kassem and Kite of Cor Cordis give figures of $525 for a partner, $400 for a senior manager, $375 for a manager and then in the same way descending fees for different levels of employee.

1. Those figures would tend to favour the Crouch Amirbeaggi trustees, although there is now in evidence an email from Mr Kite that his firm would be prepared to limit fees to $10,000 plus GST plus disbursements provided that there was no difficulty in obtaining vacant possession and no other unforeseen problems. That figure, based on $525 an hour, would be for work of less than 20 hours, and it is difficult to see in a matter as simple as this how even that time would be required.

1. I should add that I do not consider there should be any difficulty in obtaining vacant possession as the plaintiff is the one seeking the order for sale and has an obvious obligation to vacate the premises at the request of whoever are appointed trustees for sale.

1. Although in these matters, if there is no contest, the trustees put forward by the plaintiff are normally appointed without any argument, I do not think the fact that the plaintiff seeks a particular appointment should carry the day. It is clear that it is in the interests of both co-owners that the fees of the trustees for sale be as low as possible.

1. In the circumstances, I have come to the conclusion that the trustees proposed by the defendant should be appointed. I should add that they did put forward other trustees, being partners in a firm called Jones Partners, but as their fees were higher than the fees of the other two competing groups they can be disregarded.

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Decision last updated: 16 November 2012