Pappas v Priakos [2007] NSWSC 570

New South Wales Supreme Court

CITATION : Pappas v Priakos [2007] NSWSC 570

HEARING DATE(S) : 20 April 2007 JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 20 April 2007

DECISION : Further Order made authorising sale to different purchaser and on more advantageous terms than sale originally authorised

CATCHWORDS : PROCEDURE – Orders setting aside or varying – liberty to apply

LEGISLATION CITED : (NSW) Uniform Civil Procedure Rules 2005 r 36

PARTIES : Nicholas George Pappas v Penelope Priakos

FILE NUMBER(S) : SC 1324/07

COUNSEL : Mr M K Meek (plaintiff) (ex parte)

SOLICITORS : Nicholas G Pappas & Co (plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Friday 20 April 2007

1324/07 Nicholas George Pappas v Penelope Priakos JUDGMENT (ex tempore) 1 HIS HONOUR: On 13 March 2007 I made orders that Nicholas George Pappas, in his capacity as executor of the estate of the late Adreanna Pritchett, be authorised to sell the property situate at and known as unit 9/1 Wyuna Road, Point Piper, to Paul and Katherine Swain at a price of $620,000, upon the terms and conditions of the Draft Agreement being PX02 herein. I ordered that Mr Pappas have the conduct of the sale, and reserved liberty to apply in the event of any difficulty arising in the conduct of the sale. I authorised Mr Pappas, upon receipt of the proceeds of the sale, to pay the liabilities of the estate and thereafter distribute the net assets in accordance with law. I gave reasons for those orders, with which these reasons should be read. 2 Since those orders were made, Mr and Mrs Swain have withdrawn from the proposed purchase, and Mr Pappas has caused the property to be readvertised. A new potential purchaser, Grappa Pty Limited, has been found, which is prepared to pay a price of $625,000, an increase in $5,000 over the price in the contract to the Swains. Mr Pappas and Grappa have exchanged contracts for sale and purchase of the property, subject to an order of the Court approving the sale by Mr Pappas to Grappa, and conditional upon Mr Pappas using reasonable endeavours to obtain such order by 30 April 2007; if an order is not obtained by then, either party may rescind by written notice to the other. 3 On 10 April 2007, Mr Pappas gave notice to Ms Priakos of his intention to approach the Court for such an order. He has not received any response from Ms Priakos. On 18 April, Mr Pappas notified Ms Priakos by facsimile of the listing the matter before the Court today. In both letters he asked whether Ms Priakos would consent to the amendment; again, no reply has so far been received. It may well be that Ms Priakos has returned to the United States of America, and I note that the letter was forwarded by facsimile to her address in the United States. While it would ordinarily have been very short notice, the orders sought (in the light of the orders that are already on foot) cannot operate to the detriment, but only (at least to some extent) to the benefit, of Ms Priakos, in that the selling price is increased by $5,000. In those circumstances, I do not think further notice to Ms Priakos before the order is made is necessary. I will, however, make provision for service of the order I propose to make on her, reserving to her a very short time to apply to set it aside. 4 So far as the substance of the application is concerned, as I have foreshadowed, it seems to me that there is no detriment and only benefit to the estate and potentially Ms Priakos in making the order sought. 5 The order of 13 March having been entered, and it having been made in circumstances where both parties were before the Court, it is not open to me to set aside or vary it under (NSW) Uniform Civil Procedure Rules 2005 rr 36.15, 36.16, or 36.17. However, I do not see why, given the nature of the application, and the liberty to apply that I reserved, it is not open to the Court to make a further order, authorising a different sale in addition to the sale already authorised. 6 I make the following orders: 1. Order that Nicholas George Pappas, in his capacity as executor of the estate of the late Andreanna Pritchett, be authorised to sell the property situate at and known as Unit 9/1 Wyuna Road, Point Piper to Grappa Pty Limited as trustee for the Surmer Family Trust at a price of $625,000 and otherwise upon the terms and conditions of the draft contract being Exhibit PX02 herein. 2. Order that the costs of this application be paid out of the estate of the late Andreanna Pritchett. 3. Order that Nicholas George Pappas have the conduct of the sale. 4. Reserve liberty to apply in the event of any difficulty arising in the conduct of the sale. 5. Order that Nicholas George Pappas be authorised, upon receipt of the proceeds of the sale, to pay the liabilities of the estate and thereafter distribute the net assets in accordance with the law. 6. Direct that these orders be entered forthwith. 7. Direct that a copy of these orders be served on the Defendant by delivery to 65A Dwyer Avenue, Little Bay, in the State of New South Wales and by email to ppriakos@kw.comm and by facsimile transmission to her on facsimile number 0015-1-210-493-0756 by 24 April 2007. 8. Reserve leave to the Defendant to apply, at her own risk as to costs, by 27 April 2007, to vary or set aside this order. **********