Purser v Purser [2024] NSWSC 611

Supreme Court New South Wales

Medium Neutral Citation: Purser v Purser [2024] NSWSC 611 Hearing dates: 15 May 2024 Decision date: 15 May 2024 Jurisdiction: Equity - Real Property List Before: Peden J Decision: At [21] Catchwords: LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where owners are joint tenants — Where joint tenancy not severed at time of hearing — Where orders made pursuant to s 66G Conveyancing Act 1919 (NSW) Legislation Cited: Conveyancing Act 1919 (NSW) Cases Cited: Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341 Foundas v Arambatzis [2020] NSWCA 47 Stibbard-Leaver v Leaver [2021] NSWSC 65 Texts Cited: Nil Category: Principal judgment Parties: Laura Purser (Plaintiff) Glen Ian Purser (Defendant) Representation: Counsel: S Hill (Plaintiff)

Solicitors: Higgins Lawyers (Plaintiff) File Number(s): 2023/00458015 Publication restriction: Nil

Ex Tempore JUDGMENT – revised 1. These proceedings concern a property in Glen Davis in New South Wales. The plaintiff, Laura Purser, and the defendant, Glen Ian Purser, are the co-owners of the property, holding as joint tenants. They are husband and wife. Ms Purser seeks orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the property. 2. The property was purchased by the parties in around 2014 and is subject to a registered mortgage in favour of Sydney Mutual Bank Ltd. As at 30 October 2023, around $88,000 was owing under the mortgage, and the mortgage repayments were in arrears. In September 2023, a caveat was lodged over the property by Southern Steel Supplies Pty Ltd. That company claims to have a charge over the property pursuant to a deed of guarantee. 3. Ms Purser deposes that she is concerned that Mr Purser has been dealing with the property without consulting her. Her evidence is that Mr Purser has refused her suggestion that the property be sold to discharge the debt secured over the property, and that she and her husband are unable to work together to manage and maintain the property. 4. In December 2023, Ms Purser commenced these proceedings. 5. On 2 April 2024, Mr Purser filed an appearance in these proceedings. On 9 May 2024, however, he filed a submitting appearance pursuant to which he submitted, "To the making of all orders sought save as to the costs order in favour of the plaintiff sought in para 9 of the summons." 6. By paragraph 9 of the summons, Ms Purser sought an order that the costs of the summons, including the trustees' costs, be paid on an indemnity basis from Mr Purser's share of the net proceeds of sale. However, Ms Purser has since decided to seek different orders to those in paragraph 9 of the summons, so that she now seeks the following to be paid from the proceeds before distribution to the parties: 1. Trustees' fees in an amount determined by the parties or the Court; and 2. Her costs on an indemnity basis. 1. She no longer seeks an order that Mr Purser alone bear those costs.