Robert Colin White v Nicole Maree White [2021] NSWSC 484

Supreme Court New South Wales

Medium Neutral Citation: Robert Colin White v Nicole Maree White [2021] NSWSC 484 Hearing dates: 24, 25 March, 16 and 26 April 2021 Date of orders: 26 April 2021 Decision date: 26 April 2021 Jurisdiction: Equity Before: Rein J Decision: 1. An order that Roy Hanna and Omar Khan as Trustees for sale of the property located at 128 Duri Road, Hillvue, New South Wales, 2340, being the land comprised in Folio Identifier 17/240820 ("the Property") be given possession of the Property. 2. Leave for the issue forthwith of a Writ of Possession for the Property in the form of the document annexed to the Short Minutes of Order handed up by the Trustees and marked "A". 3. An order pursuant to Section 114(2) of the Civil Procedure Act 2005 (NSW) for the Sheriff to secure entry onto the Property in favour of the Trustees for sale. 4. An order that the costs of and associated with the Motion filed on 4 March 2021 be paid to the Plaintiff (in addition to the costs order made on 8 December 2020) on an indemnity basis from the net proceeds of the sale of the Property due to the First Defendant. Catchwords: LAND LAW – Co-ownership – Statutory trust for sale – Application by trustee for possession of property – One co-owner failing to respond to notices to vacate issued by the trustees seeking possession of the property to effect its sale – Whether the co-owner in possession of the property is entitled to remain in the property until its sale – Whether the trustee is entitled to a writ of possession to effect a sale of the property Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Cases Cited: Abbott v Pegler (1980) 1 BPR 9267 Application of Richard Albarran; Harb v Harb [2010] NSWSC 1251 Texts Cited: Nil Category: Principal judgment Parties: Robert Colin White (Plaintiff/Applicant on the Amended Notice of Motion) Roy Hanna and Omar Khan (Court Appointed Trustees/Applicant on the Amended Notice of Motion) Nicole Maree White (First Defendant/Respondent on the Notice of Motion) Westpac Banking Corporation (Second Defendant) Representation: Counsel: Ms K Boettcher (Plaintiff and Trustees)