John Allan Batty v Sharon Doherty and Anor [2013] NSWSC 1441

Supreme Court New South Wales

Medium Neutral Citation: John Allan Batty v Sharon Doherty and Anor [2013] NSWSC 1441 Hearing dates: 27 September 2013 Decision date: 27 September 2013 Jurisdiction: Equity Division Before: Slattery J Decision: A Court annexed mediation ordered and direction given. Catchwords: REAL PROPERTY - application for appointment of trustees for sale Conveyancing Act 1919 s 66G - property owned by six siblings in equal shares - whether service of the Summons on all co-owners proved - one of the co-owners bankrupt - whether, and if so how, the trustee in bankruptcy should be joined as a party - outstanding dispute between the parties in relation various property related payments made by two of the co-owners - potential promissory estoppel claim by one of the co-owners. Legislation Cited: Conveyancing Act 1919 s 66G Cases Cited: Re Debney (1959) SR (NSW) 471 Ngatoa v Ford (1990) 19 NSWLR 72 Williams v Legg (1993) 23 NSWLR 687. Category: Interlocutory applications Parties: Plaintiff: John Allan Batty First Defendant: Sharon Doherty Second Defendant: Jeannie Batty Representation: Counsel: Plaintiff: P Nagle Second Defendant: T Flaherty Solicitors: File Number(s): 2013/8559 Publication restriction: No

EX TEmpore Judgment 1This matter was last before me in the Applications List on 13 September 2013. On that occasion Mr Nagle appeared for the plaintiff but there was no appearance for any of the defendants. I adjourned the matter for two weeks. Today, the second defendant, Ms Jeannie Batty appeared in person. But after standing the matter down, the Court has been much assisted by Mr Flaherty of counsel appearing on a pro bono basis for her at short notice today. The Court appreciates that assistance. The pro bono work done by the legal profession is often the only way that justice can be done between parties to some proceedings. 2Mr Flaherty and Mr Nagle, who appears for the plaintiff, have had a chance to talk through the further directions to be given in these proceedings. As a result of those discussions, a general consensus has been reached. 3Some short comments about the background to this case and the need for its rapid resolution with the assistance of the lawyers concerned are necessary at this point. 4Mr Nagle brings an application under Conveyancing Act 1919 s 66G on behalf of three of six owners of a country property in Gulgong New South Wales ("the Property"). The Property is a small rural property which valuation evidence indicates is worth approximately $200,000. The certificate of title, which was tendered today, shows that the Property is in the name of the six co-owners who are members of the Batty family and children of the late James Allan Batty who bequeathed the property to them in his will. They hold the Property as tenants in common, as to one-sixth share each. Their first names are: John, Sharon, Jeannie, James, Robert and Stephen. 5The Property is not mortgaged. A solicitor is prepared to be a trustee for the sale. In those circumstances I see no need to appoint more than one trustee for sale.