Proietti v Proietti [2022] NSWSC 875

Supreme Court New South Wales

Medium Neutral Citation: Proietti v Proietti [2022] NSWSC 875 Hearing dates: 11 June 2022 Decision date: 30 June 2022 Jurisdiction: Equity Before: Kunc J Decision: Trustees for sale to be appointed Catchwords: LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Defendant unsuccessfully relies on claims in estoppel and contract — No issues of principle Legislation Cited: Conveyancing Act 1919 (NSW) Cases Cited: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 Foundas v Arambatzis [2020] NSWCA 47 Q (A Pseudonym) v E Co (A Pseudonym) [2020] NSWCA 220 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 Waltons Stores (Interstate) Ltd v Maher and Anor (1988) 164 CLR 387; [1988] HCA 7 Category: Principal judgment Parties: Peter Proietti (Plaintiff) Philip Proietti (Defendant) Representation: Counsel:

A Paterson (Plaintiff) Philip Proietti (self-represented)

Solicitors:

Maatouks Law Group (Plaintiff) File Number(s): 2022/14128 Publication restriction: No

Judgment

Summary 1. The parties to these proceedings are two brothers who inherited the family home at Marsfield (the Property) from their late mother. Without intending any disrespect, I will refer to them by their given names. 2. The defendant (Philip) is fifty-two years of age. He has resided in the Property for more than thirty years, being the vast majority of his adult life, and during that time provided care to his elderly parents preceding their deaths. The plaintiff (Peter) has mostly lived independently and has not resided at the Property for many years. 3. Peter and Philip now hold the Property as tenants in common. They are in dispute about when and, if so, on what terms, the Property should be sold. Peter has brought these proceedings for orders under s 66G of the Conveyancing Act 1919 (NSW). Philip opposed any such orders being made. 4. As is well known, orders under s66G will generally be made unless the defendant can demonstrate some extant legal or equitable right that is inconsistent with that relief being granted, or which cannot be accommodated by the terms on which any orders are made. For the reasons which follow, the Court finds that Philip has not made out any of the legal arguments he advanced in defence to Peter's application, being proprietary estoppel, promissory estoppel and contract. The Court will make orders for the appointment of trustees for sale of the Property, subject to hearing the parties about the form of those orders and including whether Philip can demonstrate that he has any possibility of raising funds within a reasonable time to bid at any auction. 5. Mr A Paterson of Counsel appeared for Peter. Philip represented himself.