Scott v O'Riley [2006] NSWSC 1081

New South Wales Supreme Court

CITATION : Scott v O'Riley [2006] NSWSC 1081

HEARING DATE(S) : 13 October 2006

JUDGMENT DATE : 13 October 2006

JURISDICTION : Equity

JUDGMENT OF : Campbell J

EX TEMPORE JUDGMENT DATE : 10/13/2006

DECISION : One trustee for sale removed. Alternative appointed. Co-owner seeking to frustrate activities of trustee for sale to pay costs thereby occasioned.

CATCHWORDS : CONVEYANCING - joint tenancy and tenancy in common - appointment of trustees for sale under section 66G Conveyancing Act 1919 - one trustee for sale becomes incapable of continuing to act - appointment of substitute trustee for sale - effects of one co-owner seeking to frustrate orders for appointment of trustees for sale

LEGISLATION CITED : Conveyancing Act 1919 Property (Relationships) Act 1984

PARTIES : Shirley Francis Scott - Plaintiff John Joseph O'Riley - Defendant

FILE NUMBER(S) : SC 3953/04

AM Gruzman - Plaintiff COUNSEL : GA Sirtes - for Mr Crumpton No Appearance - Defendant

McBride Harle & Martin - Plaintiff SOLICITORS : Gray & Perkins - for Mr Crumpton Unrepresented - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

FRIDAY 13 OCTOBER 2006

3953/04 SHIRLEY FRANCIS SCOTT v JOHN JOSEPH O'RILEY JUDGMENT – Ex Tempore 1 HIS HONOUR: This matter is being heard even though the defendant has not attended court today. 2 The matter began on 15 July 2004 with the filing of summons. The plaintiff and the defendant are registered proprietors as tenants in common in equal shares of a property contained in Folio Identifier 2/300339 known as 119 Queen Victoria Street, Bexley. The plaintiff's application was an application, in the form commonly used, seeking appointment of trustees for sale under section 66G Conveyancing Act 1919. 3 Somewhat belatedly, on 27 October 2004 the defendant filed a cross-claim which alleged that he and the plaintiff had been in a de facto relationship, and seeking adjustment of property interests under the Property (Relationships) Act 1984. The plaintiff denies that there was any de facto relationship. 4 Once that cross-claim had been filed, the preparation of the matter proceeded at a slower pace than an application for appointment of trustees for sale would proceed. It came to be fixed for hearing before me on 11 and 12 May 2006. 5 Before that date, though, consent orders were made in chambers, on 26 April 2006. Those consent orders appointed trustees for sale of the land. The persons appointed were Mr McBride, a solicitor from the firm acting for the plaintiff, and Mr Crumpton, a solicitor from the firm acting for the defendant. The order required the defendant to co-operate with the trustees for sale with respect to the sale, give access to prospective purchasers as required by any real estate agent appointed by the trustees and to vacate the subject property on reasonable notice given by the trustees. There was provision for the solicitor for the defendant to have the conduct of the sale of the property. The agreed manner of division of the proceeds of sale was that one half of the net proceeds of sale was to be paid to the defendant. The other half of the net proceeds of sale was to be allocated so that the defendant received $61,000 from it, and the plaintiff received the rest. Costs orders were made as well. The cross-claim was dismissed. 6 Notwithstanding his agreement to those orders, the defendant has engaged in a campaign of non co-operation. He has failed to sign a real estate agency agreement (although this is probably not necessary, as it was the trustees for sale who had the carriage of the sale between them), and he has not co-operated in permitting inspection of the property. The situation has been reached where he refuses to give instructions to Mr Crumpton. Mr Crumpton, justifiably in my view, has decided it is no longer possible for him to continue to act as a trustee for sale. He seeks to be removed. 7 The situation has now arisen where the original orders of the Court cannot be carried out in precisely the way that was contemplated. It is, it seems to me, within the Court's power to administer the carrying through of its orders to now make an order which permits Mr Crumpton to be removed, and permits the appointment of an alternative trustee for sale. Because section 66G empowers the Court to appoint trustees for sale, in the plural, it is necessary to have two trustees for sale, save in the circumstance where a trustee company is appointed as trustee for sale, in the manner that section 66G itself contemplates. 8 The defendant attended Court when the matter was before me previously, on 29 September 2006. On that date, he was made aware, because he was present when I delivered a judgment saying it, that this matter would be stood over to 13 October 2006. On that occasion, I also gave leave for any other Notice of Motion which might be sought to be brought concerning the matter to be returnable on 13 October 2006. 9 There was, on that occasion, some discussion about the manner in which the defendant could be communicated with. He made it clear that he had a facsimile number, which was the same as his telephone number. 10 I am satisfied that he has been served, by facsimile, with an Amended Notice of Motion upon which the plaintiff moves today. I am also satisfied that he has been served with the evidence upon which the plaintiff moves today, apart from the evidence of service itself. 11 It is, in my view, appropriate to appoint a new trustee for sale, in place of Mr Crumpton. It is also appropriate to do that by a conveyancing mechanism precisely the same as that contemplated by the combined effect of Mr Crumpton's Notice of Motion and the plaintiff's Notice of Motion, namely removing Mr Crumpton as trustee for sale, discharging the earlier order which appointed Mr Crumpton insofar as it appoints Mr Crumpton, and appointing an alternative trustee, Mr Hayward, in his place. I adopt this conveyancing technique because it is precisely the conveyancing technique which has been notified to the defendant. That I adopt it in no way reflects adversely on Mr Crumpton. 12 In consequence of the defendant's course of conduct in frustrating the carrying through of the orders which were made on 26 April 2006, the plaintiff has incurred costs. I am satisfied that those costs total in excess of $19,000. By the Notice of Motion, the plaintiff sought only that they be assessed in the sum of $16,000. In my view, it is appropriate to assess them at $16,000. I make orders 1 to 7 inclusive in the Amended Notice of Motion filed 9 October 2006. I order the defendant give vacant possession of the property to the trustee no later than 17 November 2006. 13 The plaintiff seeks orders to the effect that the defendant, once he leaves the property, not approach within 50 metres of it, and not interfere with the proposed sale. In light of his course of conduct so far, those orders seem to me to be appropriate. I make orders 9, 10, and 11 in the Amended Notice of Motion filed 9 October 2006. 14 I order the defendant to pay the plaintiff's costs on an indemnity basis from 26 May 2006, assessed at $16,000. 15 These orders may be entered forthwith. 16 I modify order 3 in the Amended Notice of Motion by adding to the end of it, the words: "provided that the discharge of order 8 made 26 April 2006 does not extend to disentitling Timothy Crumpton from receiving from the proceeds of sale, before division between the plaintiff and the defendant, his costs of having acted as trustee for sale in the period 26 April 2006 to today." 17 I make orders 1 and 2 in Mr Crumpton's Notice of Motion filed 29 September 2006. **********