Capolingua v Da Silva [2016] NSWSC 1212

Supreme Court New South Wales

Medium Neutral Citation: Capolingua v Da Silva [2016] NSWSC 1212 Hearing dates: 23 August 2016 Date of orders: 31 August 2016 Decision date: 31 August 2016 Jurisdiction: Equity Before: Darke J Decision: Proceedings adjourned Catchwords: CONVEYANCING – sales by court order or direction – appointment of trustees for sale – contractual limitations upon seeking appointment of trustees – discretion to withhold relief – contractual pre-conditions in the course of being satisfied – appropriate to adjourn proceedings for a period Legislation Cited: Conveyancing Act 1919 (NSW), s 66G Cases Cited: Grizonic v Suttor [2004] NSWSC 137; (2004) 12 BPR 22,797 Ngatoa v Ford (1990) 19 NSWLR 72 Re Permanent Trustee Nominees (Canberra) Limited [1989] 1 Qd R 314 Stephens v Debney [1960 SR (NSW) 468 Tory v Tory [2007] NSWSC 1078 Williams v Legg (1993) 29 NSWLR 687 Category: Principal judgment Parties: Nick Jason Carl Capolingua (Plaintiff) Janine Da Silva (Defendant) Representation: Counsel: Mr R Alkadamani (Plaintiff) Mr H Jewell (Defendant)

Solicitors: Wall and Company (Plaintiff) Craig Milne and Company (Defendant) File Number(s): 2014/292818 Publication restriction: None

Judgment

Introduction 1. The plaintiff, Mr Nick Capolingua, and the defendant, Ms Janine Da Silva, are co-owners of the land contained in Auto Consol 7621-29 which consists of Lot 1 in Deposited Plan 168280 and Lot 1 in Deposited Plan 303006 ("the property"). The property is situated off Upper Middle Pocket Road, Middle Pocket, approximately 15km north of Mullumbimby. The plaintiff owns a two-thirds share and the defendant owns the remaining one-third share. The property is subject to a registered mortgage in favour of Westpac Banking Corporation, which secures loans made to both the plaintiff and the defendant. 2. The plaintiff first acquired an interest in the property with various others (not including the defendant) in 1993. The defendant first acquired an interest in the property in 1995. By September 2003 the property was owned by the plaintiff, the defendant and Ms Petra Ghaghaghi. They each held a one-third interest. 3. The three co-owners entered into a Deed on 10 September 2003 ("the Deed") which recorded their agreement concerning ownership of the property. At that time, each of the co-owners lived on the property. Ms Ghaghaghi lived in a house, the plaintiff lived in a machinery shed, and the defendant lived in a silage shed that had been converted into a dwelling. This dwelling is no more than about 50m from the house. 4. In December 2007 the plaintiff purchased Ms Ghaghaghi's interest in the property. The plaintiff then moved into the house on the property. 5. From about 2008 relations soured between the plaintiff on the one hand, and the defendant and Mr Tony Vargas (a resident of the dwelling occupied by the defendant) on the other. A high degree of animosity developed, and evidently remains. Applications for Apprehended Violence Orders have been made by each of the disputants, and many orders of that kind have issued. 6. In April 2015 the plaintiff moved out of the house and into rented accommodation in Mullumbimby. He says that this occurred due to the conflict with the defendant and Mr Vargas. Since May 2015 he has rented the house on the property to his former partner and her new partner for a rent of $350 per week. 7. The plaintiff commenced these proceedings on 7 October 2014. By his Statement of Claim, the plaintiff sought an order for rectification of the Deed and orders for the appointment of trustees for sale of the property pursuant to s 66G of the Conveyancing Act 1919 (NSW). 8. The defendant initially acted for herself in the proceedings. She filed a "Cross Claim/Defence" in December 2014. The defendant generally took issue with the appointment of trustees for sale, but appears not to have specifically addressed the question of rectification. 9. By March 2015 the defendant had retained solicitors to act for her. An Amended Defence was filed on 15 April 2015, in which the defendant conceded that rectification of clause 3.8 of the Deed should be ordered as sought by the plaintiff. (An order to that effect was eventually made by consent on 8 April 2016.) The defendant pleaded that the plaintiff had failed to comply with clause 5 of the Deed, and that the bringing of the s 66G application was contrary to the provisions of the Deed. 10. A Cross Claim was also filed by the defendant against the plaintiff on 15 April 2015. An order for the appointment of trustees for partition was sought, as well as damages for various breaches of the Deed. The Cross Claim was subsequently amended to delete the claim for partition and all allegations of breach of the Deed save for the allegation that the plaintiff is in breach of the Deed by the bringing of the s 66G application.