Supreme Court New South Wales Medium Neutral Citation: Scheibl v Radig [2018] NSWSC 1900 Hearing dates: 06 December 2018 Date of orders: 06 December 2018 Decision date: 06 December 2018 Jurisdiction: Equity Before: Emmett AJA Decision: 1 See [15] Ka Catchwords: CONVEYANCING - appointment of trustees for sale – orders under s 66G of the Conveyancing Act 1919 (NSW) Legislation Cited: Conveyancing Act 1919 (NSW) Real Property Act 1900 (NSW) Category: Principal judgment Parties: Kevin Frank Scheibl (Plaintiff) Karin Julie Radig (Defendant) Representation: Counsel: Ms Z Hillman (Plaintiff) No appearance (Defendant) Solicitors: Hughes and Taylor Solicitors (Plaintiff) No appearance (Defendant) File Number(s): 2018/136679 EX TEMPORE Judgment 1. HIS HONOUR: By summons filed on 1 May 2018, the plaintiff, Mr Kevin Scheibl, seeks orders under s 66G of the Conveyancing Act 1919 (NSW) (the Conveyancing Act) in relation to a property located in Burwood Road, Concord (the Concord Property). The Concord Property is under the provisions of the Real Property Act 1900 (NSW). Section 66G(1) of the Conveyancing Act relevantly provides that, where any property is held in co-ownership the Court may, on the application of any one or more of the co-owners, appoint trustees of the property and vest the property in such trustees. The Court may either appoint trustees for partition or trustees for sale. Mr Scheibl seeks the appointment of trustees on the statutory trust for sale in accordance with s 66F(2). 2. The Concord Property was purchased by Mr Scheibl and the defendant, Ms Karin Radig, on 4 December 1996. At the time of the purchase, Mr Scheibl and Ms Radig were in a de facto relationship. They arranged a facility with National Australia Bank Limited (NAB) for approximately $526,000 to enable them to complete the purchase. Approximately $460,000 was drawn under the facility. The balance of the purchase price was contributed as to $80,000 by Mr Scheibl and as to $83,000 by Ms Radig. The Concord Property was originally purchased by the parties as joint tenants, but Mr Scheibl subsequently applied for the severance of the joint tenancy and he and Ms Radig are now registered as proprietors of the Concord Property as tenants in common in equal shares. 3. The relationship between Mr Scheibl and Ms Radig came to an end in about 1998 or 1999. During the time that they were engaged in the relationship, the costs associated with the Concord Property were paid from an offsetting account held by the parties with NAB. While complete details are not now available, Mr Scheibl has estimated that he has paid approximately 51.1% of the loan repayments and that Ms Radig paid approximately 48.9% of the repayments. 4. Following the termination of their relationship, Mr Scheibl and Ms Radig at various times have occupied the Concord property without payment of rent or occupation fee to the other. During one period, the Concord property was let to third parties and the income applied in reduction of the amounts owing to NAB. 5. Following the end of the relationship, a number of attempts were made by Mr Scheibl to obtain Ms Radig's agreement to effect a sale of the Concord Property but no agreement has been reached. From time to time, Ms Radig has asserted that she is owed money by Mr Scheibl but has provided no material in support of that claim. 6. Mr Scheibl has now been diagnosed with a condition which has the consequence that he is unable to work. He is presently in receipt of a retirement benefit from the Royal Australian Navy and a disability pension. He wishes to effect sale of the Concord Property so that he can be relieved of his debt to NAB and obtain a property, unencumbered, in which he can reside. 7. The matter was listed before me this morning and, when it was called, there was no appearance for Ms Radig. Mr Ryan Williams, a process server, has deposed that on 17 July 2018, he served Ms Radig with the summons and an affidavit of Mr Scheibl affirmed on 4 April 2018. At the time of service, Mr Williams asked the recipient questions that indicated that she was the defendant. The summons was returnable on 24 September 2018. On 21 September 2018, a partner in the firm of Hughes & Taylor spoke to Ms Radig by telephone and Ms Radig said that she could not find a lawyer and wanted an adjournment. 8. There was no appearance for Ms Radig before the Registrar in Equity on 24 September 2018 and the proceedings were adjourned. Later on 24 September 2018, Hughes & Taylor sent an email to Ms Radig. On 22 October 2018, Hughes & Taylor received an email from Ms Radig containing without prejudice material. The content is not relevant but the fact of the communication is evidence of Ms Radig's awareness of the proceedings. 9. On 23 October 2018, Hughes & Taylor received a further email from Ms Radig, saying that she wanted to attend Court herself but could not as she was away with work and could not find legal representation in time. On 24 October 2018, Hughes & Taylor sent a further email to Ms Radig, informing her that the matter was listed in Court on 29 October 2018. 10. There was no appearance for Ms Radig on 29 October 2018, at the directions hearing on that day. Later on 29 October 2018, Hughes & Taylor sent a further email to Ms Radig, noting that there was no appearance at the directions hearing and attaching a copy of the orders made by the Registrar in Equity on that day listing the matter on 23 November 2018. The proceedings came before Kunc J on 23 November 2018, when, again, there was no appearance by Ms Radig. 11. Later on 23 November 2018, Hughes & Taylor sent a further email to Ms Radig informing her that the proceedings had been listed for hearing on 6 December 2018. On 3 December 2018, Hughes & Taylor sent a letter by email to Ms Radig confirming that the proceedings were listed for final hearing on Thursday, 6 December 2018 and informing her that, if she did not appear, the proceedings may be determined in her absence. A copy of submissions proposed to be made on behalf of Mr Scheibl was attached to the letter sent by email. 12. In all of the circumstances, I am satisfied that the defendant had ample notice of these proceedings and the fact that the proceedings were listed for hearing today. Accordingly, there does not appear to be any reason why I should not proceed to deal on a final basis with the summons. It will of course be open to Ms Radig, if she is so advised, to apply to have set aside any orders made in her absence. 13. I have evidence before me that Mr Dib Chidiac and Ms Kaye Loder have consented to act as trustees on the statutory trust for sale of the Concord Property. While Mr Chidiac has not previously acted as a trustee, he is an experienced real estate agent in the Concord area, having sold close to 1,000 properties in that area in his time as a real estate agent since 2009. Ms Loder is a retired solicitor and has had considerable experience in relation to the sale of property pursuant to orders made by the Court, the administration of estates and otherwise. 14. I am satisfied that orders should be made in terms of the prayers for relief in the summons subject to one exception. Mr Scheibl originally claimed that there should be paid out of the proceeds of sale an amount to reimburse him for the costs of repairs to the Concord Property borne by him. He no longer presses that claim. 15. For the above reasons, I propose to make the following orders: 1 Kaye Loder and Dib Chidiac be appointed Trustees (the Trustees) for the sale the property located at 4/247P Burwood Road, Concord in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier 4/SP50915 (the Concord Property). 2 The Concord Property vest in the Trustees subject to any encumbrances affecting the entirety thereof and free of any encumbrances affecting any undivided shares therein upon the statutory trust for sale created pursuant to Division 6 of Part 4 of the Conveyancing Act 1919 (NSW). 3 The Trustees be empowered to offer the Concord Property for sale by public auction with power to fix a reserve price. 4 The Trustees have the sole conduct of the sale of the Concord Property and be authorised to engage a licensed real estate agent for sale, an auctioneer, a solicitor or licensed conveyancing agent and such other persons as are reasonably required to assist the Trustees to effect the sale. 5 The Trustees be: a. Authorised to charge remuneration for work done at reasonable rates; b. Indemnified from the trust in respect of any expenses properly incurred by the Trustees; c. Permitted to retain amounts received from the sale of the trust property on account of their remuneration and expenses. 6 On completion of the sale of the Concord Property by the Trustees, the settlement funds received on completion ("the sale proceeds") shall be distributed in the following order: a. First, in payment of selling costs and expenses in connection with the sale of the Concord Property including: i. legal costs and disbursements in transferring the Concord Property into the names of the Trustees; ii. selling agent's fees and commission; iii. auctioneer's fees; and iv. legal costs and disbursements associated with the sale; b. Then in payment of any amounts owing in connection with the Concord Property for council rates, water rates, water usage and any other utility or statutory imposts including Capital Gains Tax, Land Tax and Goods & Services Tax (GST); c. Then the remuneration and any other expenses of the Trustees in respect of the sale; d. Then in payment of one half share of those amounts paid by the plaintiff: i. in reduction of the loan obtained by the parties from the National Australia Bank Limited for the purchase of the Concord Property; ii. for the rates and utilities relating to the Concord Property which have been paid by the plaintiff from May 2017 to the date of sale of the Concord Property; e. Then the remaining balance of the sale proceeds be paid in equal shares to the Plaintiff and the Defendant. 7 Reserve liberty to the parties and the Trustees to apply on 5 days' notice with respect to any other matter that may arise with respect to the above Orders, the sale of the Concord Property or distribution of the sale proceeds. 8 The motion filed by the Plaintiff on 16 November 2018 is dismissed with no order as to costs. 9 The Defendant is to pay the Plaintiff's costs of this proceeding (save in respect of the motion referred to in order 8 above) as assessed or agreed. ********** Amendments 10 December 2018 - Decision added DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2018