Hughes v Egger (No. 2) [2005] NSWSC 323

New South Wales Supreme Court

Hughes v Egger (No. 2) [2005] NSWSC 323 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 22/03/05, 24/03/05, 05/04/05

JUDGMENT DATE : 5 April 2005

JUDGMENT OF : White J

DECISION : See paras 27 - 31 of judgment.

CATCHWORDS : REAL PROPERTY - Property held as tenants in common - Sale of property by auction - Where either party may wish to bid at the auction, but is barred by statute - Appointment of trustees for sale - Property, Stock and Business Agents Act (2002) NSW s 66(1), (2) - Conveyancing Act (1919) NSW s 66G

Property Relationships Act (1984) NSW LEGISLATION CITED : Property, Stock and Business Agents Act (2002) NSW Conveyancing Act (1919) NSW

Abbott v Pegler (1980) 1 BPR 9267 CASES CITED : Mortimer v Bell (1865) 1 Ch. App. 10 Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 at 247

Desmond Barry Hughes PARTIES : v Sandra June Egger

FILE NUMBER(S) : SC 3618/01

Plaintiff: P Abrahams (solicitor) COUNSEL : Defendant: J De Mestre (solicitor)

Plaintiff: Broun Abrahams SOLICITORS : Defendant: John de Mestre & Co, Solicitors

LOWER COURT JURISDICTION :

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WHITE J

Tuesday, 5 April 2005

3618/01 Desmond Barry Hughes v Sandra June Egger (No. 2) JUDGMENT 1 HIS HONOUR: On 4 February 2005, I gave judgment in these proceedings and stood the matter over to a convenient date to deal with the terms of the orders which should be made to give effect to my reasons. In my judgment I indicated that I would make a declaration pursuant to s 8 of the Property Relationships Act 1984, (NSW) that the plaintiff and the defendant hold the property at 10 Abernethy Street, Seaforth on trust for themselves as tenants in common in the proportions of forty-one per cent for the plaintiff and fifty-nine per cent for the defendant. I also said that I would make orders directing the sale of the property and application of net proceeds of sale after costs in accordance with the parties' beneficial interests. I indicated I would appoint trustees for sale, but expressed the hope that the costs could be avoided if the parties concurred in steps to be taken in relation to the sale. 2 Other matters which need to be addressed in the orders disposing of the proceedings are outlined in that judgment. 3 The parties have prepared short minutes of order to give effect to my reasons. An issue has arisen, however, in relation to the mechanics for the sale of the property. 4 The parties initially prepared short minutes of order on the basis that the property would be submitted for sale by auction. The proposed short minutes of order dealt with the mechanics for the parties setting a reserve price for the sale of the property in the event of their disagreeing on such a price, and for the steps to be taken if the property was not sold at auction. 5 However, a difficulty arose in that the defendant wishes to be able to bid for the property, and it may be that the plaintiff may also wish to bid for the property. The difficulty arises under s 66 of the Property, Stock and Business Agents Act (2002) NSW. Subsections 66(1) and (2) provide: "(1) A sale by auction of residential property or rural land must be notified in the conditions of sale to be subject to the right by the seller or by any person on behalf of the seller or auctioneer to make one bid (and only one bid).