Vlatko v Short [2022] NSWSC 1542

Supreme Court New South Wales

Medium Neutral Citation: Vlatko v Short [2022] NSWSC 1542 Hearing dates: 4 November 2022 Decision date: 11 November 2022 Jurisdiction: Equity Before: Peden J Decision: (1) Declare the Trustees are justified in not permitting any set offs to occur prior to the entry of the Consent Orders dated 14 October 2021 in these proceedings. (2) Declare The Trustees are justified in offsetting the amount payable to the Defendants pursuant to Order 2 above against the overpayment of $93,735.44 so that no amount is payable to the Defendants from trust with respect to Order 14. (3) Order the Defendants pay to the Trustees the sum of $3,843.15 within 14 days of the entry of these Orders. (4) Order that the funds held on trust by the Trustees in the amount of $609,838.15, plus any further amount ordered to be paid into trust by the Court, be distributed or held in Trust as follows: (a) In payment of the legal expenses and disbursements of the Trustees in respect of the sale of the Property and subsequent attendances before this Court in the amount of $69,300.00. (b) The amount of $194,212.44 to be held on trust pending determination of the parties' respective costs assessments. (c) The amount of $2,200 to be held on trust pending determination of the parties' respective costs assessments for the Trustees' legal expenses in relation to holding funds on Trust pending the costs assessments. (d) The sum of $347,968.86 to the Plaintiff on account of his 26% share of the proceeds. (5) Vacate Order 1 made by his Honour Darke J on 5 September 2022. (6) Direct the parties to confer and provide agreed costs orders to my Associate within 7 days of the publication of this judgment. (7) Should the parties not be able to agree on costs orders, the parties are to provide their competing orders together with submissions of no more than 2 pages and any necessary evidence, within 10 days of the entry of these Orders. Catchwords: LAND LAW — Co-ownership — Statutory trust for partition — Where s 66G proceedings resolved by final consent orders — Where parties now diverge on the proper interpretation of the consent orders — Where defendants consider the orders allow set offs of up to $3 million — Where plaintiff and trustees consider the release means there is nothing to set off against — Where plaintiff seeks declarations that its construction of the orders is correct and orders restraining the defendants from seeking additional set-offs Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 73 Conveyancing Act 1919 (NSW) ss 66G, 66I Trustee Act 1925 (NSW) s 63 Cases Cited: Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 Texts Cited: T Prince and P Herzfeld, Interpretation (2nd ed, 2020, Lawbook Co) Category: Principal judgment Parties: Jamie Vlatko (Plaintiff/Applicant) Malcolm Graham Short (First Defendant/First Respondent) Kieran Trevor Le Plastrier (Second Defendant/Second Respondent) Jodie Sue Green (Third Respondent) Johnathan Neofytou (Fourth Respondent) Representation: Counsel: C D Freeman (Plaintiff/Applicant) G W McGrath SC (Defendants/First and Second Respondents) J Green (Solicitor) (Third and Fourth Respondents)