Abadir v Abadir [2013] NSWSC 1053

Supreme Court New South Wales

Medium Neutral Citation: Abadir v Abadir [2013] NSWSC 1053 Hearing dates: 11/07/2013 Decision date: 11 July 2013 Jurisdiction: Equity Division Before: McDougall J Decision: Trustees for sale appointed Catchwords: REAL PROPERTY - land in co-ownership - sale of land - application to appoint trustee - no question of principle. Legislation Cited: Conveyancing Act 1919 (NSW) Category: Principal judgment Parties: Michael Nabil Abadir (First Plaintiff) Daniel Nabil Abadir (Second Plaintiff) Merry Shaid Abadir (First Defendant) Demina Nabil Abadir (Second Defendant) Christine Nabil Abadir (Third Defendant) Representation: Counsel: S J Chapple (Plaintiff) George Abadeer (Tutor in person, for Second and Third Defendants) Solicitors: CK Lawyers (Plaintiffs) File Number(s): 2012/386629

Judgment (ex tempore - revised 11 july 2013) 1HIS HONOUR: This is an application for appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW). The subject property is located at Marrickville. The plaintiffs and the three defendants are together the proprietors of that property, by transmission. 2The property was owned by the late Nabil William Abadir. The plaintiffs are the sons by his first marriage. The first defendant is his second wife (the late Mr Abadir's first wife having predeceased him). The second and third defendants are children of his second marriage, that is to say, his marriage to the first defendant. 3The deceased's Will left his estate on trust for each of the parties to the present case in equal shares. In respect of the property at Marrickville, that trust was effectuated by a transmission application pursuant to which the parties hold as tenants in common in equal shares. 4The first plaintiff, Mr Michael Abadir, would like to realise his interest in the property so as to enable him to reduce his indebtedness. The second plaintiff consents to the sale. The second and third defendants are minors. Their uncle, Mr George Abadeer, has been appointed as their tutor. He informs me that he does not oppose the sale, and that his sole interest is to ensure that his nieces receive their equal one fifth shares of the net proceeds of sale. 5The person who resists the sale is the first defendant, Mrs Merry Abadir. The basis of her resistance is obscure. On the evidence before me, she signed an agency agreement under which a real estate agent handled and effected the sale of the property. However, Mrs Abadir would not co-operate in completion of the sale, and ultimately the purchasers rescinded the contract. 6Correspondence with Mrs Abadir's lawyers has failed to show why it is that she opposes the sale, except she says she was overseas when arrangements for the sale were made and that she "intends on contesting the purported transmission". 7It seems to me to matter not that Mrs Abadir was overseas when the sale was effected, given that she appears to have intended the property to be sold, as may be inferred from her signature to the agency agreement. 8Although the plaintiffs' solicitors have asked why it is that Mrs Abadir wants to contest the transmission and on what basis she might do so, repeated requests for that information have remained unanswered. 9Mrs Abadir does not appear today. I am however satisfied from affidavits of service and other affidavits that she was served with the summons and principal affidavits in the proceedings, that she was served with the Notice of Motion seeking appointment of Mr Abadeer as tutor, and she has been given ample notice of this hearing today. I am satisfied, also, that the plaintiffs' solicitor has done what he can to persuade Mrs Abadir to seek legal advice and to respond in a reasoned way to the present application. 10In all the circumstances, there being no reasoned basis shown for withholding the discretion to make the orders, I am satisfied this is an appropriate case where trustees should be appointed to effect the sale. 11The orders that are sought are regular in form. I am satisfied that the proposed trustees (two solicitors) are fit and proper persons to act as trustees, and capable of doing so. I am satisfied, further, that they consent to act as trustees. 12The orders provide, among other things, for the net proceeds of sale to be distributed in equal shares between the five parties to these proceedings. Since that is in accordance the deceased's Will it is appropriate that the trustees should be at liberty to do that. 13It may be that Mrs Abadir will seek to interrupt that process. Since these orders are made in her absence (although, as I am satisfied, on notice to her), she will have an opportunity to do so should she wish to do so. In saying that I do not want it to be thought for a moment that I think there is a rational basis, on the evidence, for interrupting the sale and distribution of proceeds as to reflect the deceased's Will. 14I make orders and give directions in accordance with paragraphs 1 - 9 of the short minutes of order initialled by me and dated today's date. 15