Dyson v Holden [2010] NSWSC 1494

New South Wales Supreme Court

CITATION : Dyson v Holden [2010] NSWSC 1494

HEARING DATE(S) : 10 December 2010

JUDGMENT DATE : 10 December 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 10 December 2010

1. Order pursuant to s 38(1)(g) of the Property (Relationships) Act 1984 (NSW) and s 70(1) and (2) of the Trustee Act 1925 (NSW) that the plaintiff be appointed as trustee for the sale of the property at 68 Waratah Crescent, Sanctuary Point, New South Wales, being the land in Lot 185, DP 318167 ("the property"). 2. Order pursuant to s 71 of the Trustee Act that the property be vested in the plaintiff as trustee for sale, subject to incumbrances. 3. Order that the plaintiff, as trustee for sale, distribute the proceeds of the sale of the property as follows: (a) in the discharge of incumbrances affecting the property; (b) in the payment of outstanding rates, charges or taxes owing to any public authority in respect of the property; (c) in the payment of the costs of the sale of the property including: (i) the commission of any real estate agent engaged by the plaintiff for the sale; DECISION : (ii) the costs and disbursements of any solicitor retained by the plaintiff for the sale; and (iii) any other costs properly incurred by the plaintiff in relation to the sale; and (d) to the plaintiff. 4. Order that the plaintiff account to the defendant for any rent or licence fee that may be received by him from any tenant or licensee of the property. 5. Order that the plaintiff not disturb the occupation of the defendant, or any tenant or licensee from the defendant, of the property otherwise than as required to obtain vacant possession on completion of the sale. 6. Subject to order 5, order that the plaintiff have power to take or obtain possession of the property in order to give vacant possession to a purchaser. 7. Order that the defendant pay the plaintiff's costs, and that those costs on and from 3 September 2010 be assessed on the indemnity basis. 8. Exhibits are to be dealt with in accordance with Pt 51, rr 51.24 and 51.43 of the Uniform Civil Procedure Rules 2005.