Dobrijevich v Burge [2001] NSWSC 1176

New South Wales Supreme Court

CITATION : Dobrijevich v Burge [2001] NSWSC 1176 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3391/01 HEARING DATE(S) : 3 December 2001 JUDGMENT DATE : 3 December 2001

PARTIES : Irena Dobrijevich (P) Peter John Burge (D) JUDGMENT OF : Hamilton J

COUNSEL : S J Motbey (P) D in person SOLICITORS : S A Teen (P) D in person CATCHWORDS : REAL PROPERTY [315] - Partition of land - Statutory trust for sale - Effect of statutory trust - Power of Court to vary trust - Whether power may be exercised after sale - Whether statutory trust should be varied so that defendant's share of proceeds should bear whole of trustee company's costs of acting. LEGISLATION CITED : Conveyancing Act 1919 s 66F, 66G(6) CASES CITED : Re Estate of R D Firns [2001] NSWSC 184 DECISION : Application to vary statutory trust so that defendant's share of proceeds should bear whole of trustee company's costs of acting refused.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

MONDAY, 3 DECEMBER 2001

3391/01 IRENA DOBRIJEVICH v PETER JOHN BURGE JUDGMENT

1 HIS HONOUR: This is an application by motion in proceedings in which the plaintiff claimed an order for the appointment of a trustee for sale under s 66G of the Conveyancing Act 1919 ("the CA"), and the defendant resisted the appointment of a trustee in circumstances that I shall return to. There is also pending in the proceedings a cross-claim brought by the defendant against the plaintiff concerning matters independent of the sale of the property which was the subject of the plaintiff's claim. Master McLaughlin on 16 August this year appointed the Permanent Trustee Company Limited as the trustee for sale and the property has since been sold at auction. 2 As the trustee approaches the distribution of the funds, it is apparent that the major items to be deducted as costs and expenses pursuant to the definition of the statutory trust for sale in s 66F of the CA are as follows: