Togias v State of New South Wales [2023] NSWSC 665

Supreme Court New South Wales

Medium Neutral Citation: Togias v State of New South Wales [2023] NSWSC 665 Hearing dates: 17 March and 11 April 2023 and then in chambers based upon written submissions received on 15 May 2023. Date of orders: 20 June 2023 Decision date: 20 June 2023 Jurisdiction: Equity Before: Slattery J Decision: Second defendant granted leave to apply for judgment for possession, upon satisfying the Court that the plaintiff's former de-facto partner has notice of and does not oppose the application. Plaintiff will be permitted to remain in occupation of the property pending its sale at least until the determination of other pre-sale accounting issues. Costs reserved. Catchwords: LAND LAW – Co-ownership – second defendant has recently become the registered proprietor of certain residential real property occupied by the plaintiff and her former de facto partner – the second defendant has acquired title to the property consequent upon the making of orders under the Criminal Assets Recovery Act 1990 against the plaintiff's former de facto partner – the Court of Appeal has declared that the plaintiff has a 25% interest in the property and the second defendant holds the other 75% – the second defendant now seeks to sell the property – whether the second defendant has an immediate right to possession of the property against the plaintiff, a co-owner in equity – whether the plaintiff occupies the property as a tenant at will of the second defendant – whether judgment for possession should be entered in favour of the second defendant against the plaintiff – whether the issue of a writ for possession should be stayed. Legislation Cited: Civil Procedure Act 2005, ss 67, 135 Conveyancing Act 1919, ss 66(1), 127 Criminal Assets Recovery Act 1990 Uniform Civil Procedure Rules 2005, rr 31.46, 39.1(1)(d) Cases Cited: Angius v Salier [2017] NSWSC 198 Baumgartner v Baumgartner (1987) 164 CLR 137 Biviano v Natoli (1998) 43 NSWLR 695 Bull v Bull [1955] 1 QB 234 Commonwealth Bank v MacDonald [2000] NSWSC 553 Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47 DKLR Holding Co (No. 2) Pty Ltd v The Commissioner of Stamp Duties (1980) 1 NSWLR 510 Forgeard v Shanahan (1994) 35 NSWLR 206 Frankel v Paterson [2015] NSWSC 1307 Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 King Investment Solutions v Hussain [2005] NSWSC 1076 Lucas v Lucas [1962] Qd R 205 NSW Trustee and Guardian v Togias (2002) 406 ALR 254 Owners Strata Plan 50276 v Thoo (2013) 17 BPR 33,789 Re Webuildem Pty Ltd [2012] NSWSC 708 Saunders v Vautier [1841] EWHC Ch J82 (1841) Cr & Ph 240 Sze Tu v Jam Studios Pty Ltd [2018] NSWSC 868 Togias v State of New South Wales & Anor [2021] NSWSC 1588 Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 Texts Cited: S. Bridge, E. Cooke and M Dixon, Megarry and Wade, The Law of Real Property (9th ed 2019, London, Sweet & Maxwell) at [12-034] and [12-051] Category: Principal judgment Parties: Plaintiff: Nicolitsa Togias First Defendant: State of New South Wales Second Defendant: NSW Trustee and Guardian Representation: Counsel: Plaintiff/Respondent: Mr M. Condon SC Second Defendant/Applicant: Mr T.S. Hale SC (for Trustee)