Pennie v Pennie [2010] NSWSC 1070

New South Wales Supreme Court

CITATION : Pennie v Pennie [2010] NSWSC 1070

HEARING DATE(S) : 7 October 2010 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 7 October 2010

DECISION : Cross-Summons dismissed with costs

CATCHWORDS : EQUITY – PRACTICE AND PROCEDURE – REMEDIES – s 76(1) of the Trustee Act 1925 (NSW) provides that where an order is made by the Court directing the sale or mortgage of any land, the Court may, if it thinks expedient, make an order vesting the land or any part thereof for such estate as the Court thinks fit in the purchaser or mortgagee or in any other person – the claimants sought a vesting order and an order that they be permitted to sell property in respect of which the Court declared they have a charge securing payment to them of a fixed amount – whether the Court retains a discretion to make the orders sought – where the opponent has a costs order in his favour arising from the same proceedings in which the declaration was made which will inevitably reduce the amount owed to the claimants and may wipe it out altogether – where if the property was sold the penurious circumstances of the claimants would mean that there would be little prospect that anything paid over would be recovered – HELD – the orders sought were discretionary and the discretion should in the circumstances of this case be exercised against making the order sought

Legal Profession Act 2004 LEGISLATION CITED : Trustee Act 1925 (NSW) Conveyancing Act 1919 (NSW)

CATEGORY : Principal judgment

CASES CITED : Williams v Legg (1993) 29 NSWLR 687 Ngatoa v Ford (1990) 19 NSWLR 72

Harry George Pennie - Plaintiff PARTIES : Stuart James Pennie - First Defendant Michelle Jane Pennie - Second Defendant