Application by Buckett; Kent v Buckett [2012] NSWSC 735

Supreme Court New South Wales

Medium Neutral Citation: Application by Buckett; Kent v Buckett [2012] NSWSC 735 Hearing dates: 2 July 2012 Decision date: 02 July 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (a)Order that Glenn Richard Walters and Roderick Alexander Ian Storie be appointed as trustees for sale of the property in Folio Identifier xxxx ("the property") and that the property vest in such trustees subject to incumbrances affecting the entirety, but free from incumbrances affecting any undivided shares to be held by them on the statutory trust for sale under s 66G of the Conveyancing Act 1919. (b)Order that from the proceeds of sale of the property, the trustees may deduct the commission and other expenses of the real estate agent, the legal expenses of the trustees in respect of the sale, the legal expenses of transferring the property to the purchaser, and the costs of these proceedings as ultimately determined, and that the portions of the balance payable to the parties be determined by the trustees in accordance with the co-ownership of the property. (c)Order pursuant to s 66I of the Conveyancing Act that on any sale of the property, any of the co-owners may purchase the property, whether at auction or otherwise. (d)Order that leave be reserved to the trustees to apply for any directions regarding the sale of the property or the distribution of the proceeds of sale. (e)Order that, subject to order (j) hereunder, Marjorie Kent pay the costs of the proceedings, calculated on the ordinary basis, commenced by Jacqueline Maisie Buckett and Terry James Buckett, from her share of the proceeds of sale of the property. (f)Order that a copy of these Orders be sent, by registered pre-paid post, to Marjorie Kent, at the address at South Coogee at which other documents have been served, postage to be no later than 4:00 p.m. on Thursday 5 July 2012. (g)These orders shall be entered forthwith with the details of the complete title reference and address of the property being inserted. (h)In proceedings 2011/129997, being satisfied that when the trial was called on, Marjorie Kent, the Plaintiff did not appear, and that Jacqueline Maisie Buckett and Terry James Buckett, the Defendants, did appear, order that the proceedings be dismissed. (i)In proceedings 2011/129997, order that, subject to Order (j) hereunder, the Plaintiff pay the Defendants' costs, calculated on the ordinary basis, limited to those costs not already obtained in relation to the proceedings in which relief is sought under s 66G of the Conveyancing Act. (j)In relation to the costs of each of the proceedings, the costs assessor assessing the costs payable by Marjorie Kent should determine whether the fees of senior counsel were warranted and, if not, the amount of counsel's fees that should be paid. Catchwords: Plaintiffs seek appointment of trustees for the sale of a property pursuant to s 66G of the Conveyancing Act 1919 - Plaintiffs and Defendant are registered proprietors of the property as tenants in common - Plaintiffs wish to sell the property in the course of administration of a deceased estate - Application for family provision order out of deceased's estate by Defendant in s 66G proceedings - No appearance by, or on behalf of, the Defendant - Application for family provision order dismissed - S 66G orders made Legislation Cited: Conveyancing Act 1919 Family Provision Act 1982 Succession Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: 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 Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151; (2005) 219 ALR 692 McNamara, Re and the Conveyancing Act (1961) 78 WN (NSW) 1068 Matsen v Matsen [2008] NSWSC 135 National Australia Bank Ltd v Pasupati [2011] NSWSC 540 Ngatoa v Ford (1990) 19 NSWLR 72 NSW Trustee & Guardian v Gregory [2012] NSWSC 681 Steinecke v Wayne [2011] NSWSC 428 Texts Cited: Nevill and Ashe, Equity Proceedings With Precedents (New South Wales), (1981) Butterworths Category: Principal judgment Parties: Jacqueline Maisie Buckett (first Plaintiff in 2011/41004 and first Defendant in 2011/129997) Terry James Buckett (second Plaintiff in 2011/41004 and second Defendant in 2011/129997) Marjorie Kent (first Respondent in 2011/41004 and Plaintiff in 2011/129997) Representation: Mr L Ellison SC (Plaintiffs in 2011/41004) No appearance for Defendant in 2011/41004 No appearance for Plaintiff in 2011/129997 Mr L Ellison SC (Defendants in 2011/129997) Roberts Mann Solicitors (Plaintiffs in 2011/41004) No appearance for Defendant in 2011/41004 No appearance for Plaintiff in 2011/129997 Roberts Mann Solicitors (Defendants in 2011/129997) File Number(s): 2011/41004; 2011/129997