NSW Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681

Supreme Court New South Wales

Medium Neutral Citation: NSW Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681 Hearing dates: 15 June 2012 Decision date: 15 June 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (a)Order that Kenneth John Fairfax, solicitor, and Timothy Joseph Ring, chartered accountant, be appointed trustees of all the land in Folio Identifier xxxx being Lot xxx in Deposited Plan 246360 at Mount Druitt and known as xxx, Willmot ("the Property") title to which is presently registered in the names of Michael Robert Walsh and the Defendant as tenants in common in equal shares. (b)Order that the Property be vested in the trustees subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares, to be held by them on the statutory trust for sale under Division 6 of the Conveyancing Act 1919 as amended. (c)Order that Orders (a) and (b) be stayed for 21 days. (d)Order that upon sale of the Property, the sale proceeds are to be applied in the following priority: i.Payment to Aussie Mortgages Limited of the amount required to secure discharge of mortgage xxx from Michael Robert Walsh and Sophia Maree Gregory to the mortgagee. ii.In payment of such agent's commission and costs of sale of the Property as the trustees may determine. iii.In payment to the trustees of their fees in such amount as the parties may agree or as the Court determines. iv.In payment to the Plaintiff of the Plaintiff's costs of these proceedings in such amount as may be agreed or assessed. v.In payment to the Plaintiff one half of the balance then remaining to be held by the Plaintiff in the estate of Michael Robert Walsh deceased. vi.In payment to the Defendant of the balance then remaining. (e)An order that the Defendant is entitled to purchase the Property: i.By private treaty at such price as is agreed between the Defendant and the trustees; or ii.By auction and offset, against the purchase price, the share of the proceeds of sale due to her pursuant to order (d)(vi). (f) Grant leave to issue a writ of possession forthwith, but such writ not to be executed until 29 days after the making of these orders. (g)Order that the Plaintiff's costs of these proceedings be paid out of the proceeds of sale as set out in Order (d)(iv). (h)Order that a copy of these Orders be sent by registered pre-paid post to the Defendant at the Property, postage to be no later than 4:00 p.m. on Wednesday, 20 June 2012. (i)Liberty is reserved to the parties and to the trustees to apply to the Court on seven (7) days notice, including to seek the advice of the Court as to distribution and as to the expenses of the trustees or to obtain such further, or other, relief to enable effect to be given to these Orders or the discharge thereof as are considered necessary or appropriate. (j)These orders shall be entered forthwith with the details of the complete title reference and address of the Property and of the mortgage being inserted. Catchwords: Plaintiff seeks the appointment of trustees for the sale of a property - It also seeks orders for vacant possession of the Property to be given to the trustees for sale and for the application of the proceeds of sale - Defendant named in the Summons is not a beneficiary named in the deceased's Will - As far as the Plaintiff is aware, the Defendant, only, remains in occupation of the Property - The Defendant is a registered proprietor, with the deceased, of the Property, as tenants in common in equal shares - No appearance, by, or on behalf of, the Defendant Legislation Cited: Conveyancing Act 1919 Probate & Administration Act 1898 Uniform Civil Procedure Rules 2005 Cases Cited: Albarran, Application of; Harb v Harb [2010] NSWSC 1251 Anton Fabrications (NSW) Pty Ltd, Re; Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186 Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341 Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151; (2005) 219 ALR 692 Dixon as Trustee of the Bankrupt Estate of Badillo-Watiwat v Watiwat [2012] NSWSC 402 Eathorne v Araya-Marvin [2011] NSWSC 782 Forrest v Nix [2012] NSWSC 493 Hogan v Baseden (1997) 8 BPR 15,723 Joseph v Agrey [2011] NSWSC 1601 McNamara, Re and the Conveyancing Act (1961) 78 WN(NSW) 1068 Matsen v Matsen [2008] NSWSC 135 Ngatoa v Ford (1990) 19 NSWLR 72 National Australia Bank Ltd v Pasupati [2011] NSWSC 540 Pascoe v Dyason [2011] NSWSC 1217 Ross v Ross [2010] NSWCA 301 Smirski v Macander [2010] NSWSC 929 Spathis v Nanos [2008] NSWSC 418 Tory v Tory [2007] NSWSC 1078 Turner v Stone [2009] NSWSC 874 Woodson (Sales) Pty Limited v Woodson (Australia) Pty Limited (1996) 7 BPR 14,685 Category: Principal judgment Parties: NSW Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) (Plaintiff) Sophia Maree Gregory (Defendant) Representation: Solicitors: ZuckerLegal (Plaintiff) No appearance by Defendant File Number(s): 2011/318558