Capolingua v Da Silva (No 2) [2017] NSWSC 527

Supreme Court New South Wales

Medium Neutral Citation: Capolingua v Da Silva (No 2) [2017] NSWSC 527 Hearing dates: 24 April 2017 Date of orders: 04 May 2017 Decision date: 04 May 2017 Jurisdiction: Equity Before: Darke J Decision: Trustees for sale appointed pursuant to s 66G of the Conveyancing Act. Catchwords: CONVEYANCING – sales by court order or direction – appointment of trustees for sale – contractual limitations upon seeking appointment of trustees – where court previously adjourned proceedings due to non-compliance with contractual pre-conditions for sale – whether pre-conditions now satisfied – trustees for sale appointed Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Conveyancing Act 1919 (NSW), ss 66G, 66H Cases Cited: Capolingua v Da Silva [2016] NSWSC 1212 Gray v Sirtex Medical Ltd (2011) 193 FCR 1; [2011] FCAFC 40 Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2000] NSWSC 1100 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. This is the second judgment delivered in these proceedings between co-owners of a property near Mullumbimby. The plaintiff, who owns a two-thirds share in the property, seeks the appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW). In the first judgment (Capolingua v Da Silva [2016] NSWSC 1212), the Court declined to make orders under s 66G in circumstances where the plaintiff had not yet complied with cl 5(b) of a Deed that had been entered into between the parties. 2. Clause 5(b) of the Deed requires that a party wishing to exercise rights under s 66G must first market their interest in the property conscientiously and with all due diligence for one year. The Court was satisfied that the plaintiff's interest had been marketed in accordance with cl 5(b) from about April 2016, but that was a period of only about four months (see the first judgment at [48]-[49]). That factor, considered as part of the overall circumstances of the case, led the Court to conclude (at first judgment [56]-[57]) that it would be inequitable to the defendant to appoint trustees for sale at that time. Accordingly, the proceedings were adjourned for further hearing in April 2017. 3. On that occasion, further evidence was adduced concerning the marketing of the plaintiff's interest in the property, and the current state of the property. An affidavit sworn by Mr Cochrane, the selling agent in charge of the marketing campaign, was read by the plaintiff. Two further affidavits affirmed by the defendant, and an affidavit affirmed by Mr John Walker, were read by the defendant. All three witnesses were cross-examined. 4. The defendant resists the appointment of trustees for sale, primarily on the basis that the plaintiff has still not complied with cl 5(b) of the Deed.