Eathorne & Ors v Araya-Marvin [2011] NSWSC 782

Supreme Court New South Wales

Medium Neutral Citation: Eathorne & Ors v Araya-Marvin [2011] NSWSC 782 Hearing dates: 19 & 21 July 2011 Decision date: 28 July 2011 Jurisdiction: Equity Division Before: Nicholas J Decision: 1. That Trent Hancock and Michael Hird of BDO Business Recovery and Insolvency (NSW-VIC) Pty Limited be appointed as trustees for the sale of the land situated at 27-31 Smarts Crescent, Burraneer NSW 2230, described in folio identifier 4/19017 ("Land"). 2. That the Land be vested in the trustees subject to any encumbrances affecting the entirety of the Land, but free from encumbrances affecting any undivided share or shares therein to be held by the said trustees upon statutory trust for sale under Division 6 of Part 4 of the Conveyancing Act 1919 (NSW). 3. That the trustees be authorised to deduct all fees and expenses charged by them for their services as trustees of the Land from the proceeds of sale of the Land. 4. That the defendant pay the plaintiffs' costs. Catchwords: REAL PROPERTY - appointment of trustees for sale - section 66G of Conveyancing Act - whether contractual entitlement against exercise of discretion - property at risk of mortgagee's sale - no question of general principle Legislation Cited: Commercial Arbitration Act 2010 s 8(1) Conveyancing Act 1919 (NSW) ss 66G, 88B, Division 6 of Part 4 Real Property Act 1900 s 57(2)(b) Cases Cited: Tory v Tory [2007] NSWSC 1078 Woodson (Sales) Pty Limited v Woodson (Australia) Pty Limited (1996) 7 BPR 14,685 Category: Principal judgment Parties: Scott James Eathorne (Plaintiff 1) Nicole Pamela Darwin (Plaintiff 2) Paula Gai Vouris (Plaintiff 3) Gregory Robert Brandtman (Plaintiff 4) Carol Brandtman (Plaintiff 5) Claudia Araya-Marvin (Defendant) Representation: Counsel: H Altan (Plaintiffs) N Lyon (solicitor) (Defendant) K Bonisoli (Bank) Interested party Solicitors: Willis & Bowring (Plaintiffs) Neil Lyon Solicitors (Defendant) File Number(s): 2011/00157166