Baker v David [2015] NSWCA 235

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Baker v David [2015] NSWCA 235 Hearing dates: 3 July 2015 Decision date: 18 August 2015 Before: McColl JA at [1]; Meagher JA at [2]; Sackville AJA at [33] Decision: 1. Appeal allowed. 2. Set aside the orders made on 1 April 2015 and entered on 2 April 2015. 3. Remit the proceedings to the Equity Division to be dealt with in the Real Property List. 4. The matter proceed by way of pleadings. 5. The plaintiff (respondent) file and serve a statement of claim which joins all necessary parties within 21 days. 6. The defendant (appellant) file and serve his defence and any cross-claim within a further 21 days. 7. The proceedings be listed for further directions before the Real Property List Judge, as arranged with his or her Associate. 8. Costs of the proceedings before the primary judge be costs in the proceedings. 9. Each party bear his own costs of the appeal. 10. Grant leave to Mr Crowe-Maxwell and Mr White to apply in the proceedings as remitted to the Equity Division for payment of fees and expenses incurred in acting as Court appointed trustees. Catchwords: EQUITY – appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) – whether order appointing trustees would be inconsistent with a contractual right to exclusive possession – whether primary judge addressed arguments made as to enforceability and construction of contract contended for Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Conveyancing Act 1919 (NSW), s 66G Supreme Court Act 1970 (NSW), s 63 Uniform Civil Procedure Rules 2005, rr 51.53(1), 6.24 Cases Cited: Gordon v Ross [2006] NSWCA 157 Hunter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 Williams v Legg (1993) 29 NSWLR 687 Category: Principal judgment Parties: Geoffrey Charles Baker (Appellant) Bernard David (Respondent) Representation: Counsel: A Rogers and G Farland (Appellant) J B Whittle SC and D Neggo (Respondent)