Neilan v Neilan [2019] NSWSC 66

Supreme Court New South Wales

Medium Neutral Citation: Neilan v Neilan [2019] NSWSC 66 Hearing dates: 6 February 2019 Decision date: 06 February 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Pursuant to s 36A of the Conveyancing Act 1919 (NSW), order that the shares in Avelona Flats Pty Ltd being Share Group C No 2281 to 3420 in the name of the plaintiff as to 75% and the defendant as to 25% as tenants in common be sold. 2. Order that the plaintiff and the defendant do all things necessary to give effect to O 1. 3. Order that the defendant vacate the premises known as Flat 3, 35 Arcadia St, Coogee within 42 days of the date of these orders. 4. Order that the plaintiff have authority to conduct the said sale either by public auction or by private treaty and the transfer of the shares to the purchaser thereof and to receive the purchase moneys. 5. Order that the plaintiff hold the proceeds of such sale to be paid as follows: (a) outstanding Council rates, water rates, company levies, agent's commission and legal costs of the sale; (b) costs of these proceedings on a solicitor/client basis; (c) 25% of the net balance to the defendant; (d) $180,000 to the defendant, such payment to be in discharge of the loan made by the defendant to the estate of the late Michelle Anne Waldon pursuant to the agreement made 14 June 2013 between the executrix of the estate and the defendant; and (e) the balance remaining of the proceeds of sale to the plaintiff. 6. Liberty to both parties to apply on three days' notice for any application to vary or implement the above orders. 7. These orders be entered forthwith. 8. Direct the plaintiff to notify the defendant by email to the defendant's email address as soon as practicable after entry of these orders of the making of these orders and thereafter serve a sealed copy of the orders on the defendant as soon as practicable. Catchwords: PERSONAL PROPERTY — Co-ownership — Direction by court to divide co-owned chattels — plaintiff seeking order for sale of shares held by the parties as co-tenants in common pursuant to s 36A of the Conveyancing Act 1919 (NSW) — sale of shares ordered and defendant to vacate the premises Legislation Cited: Conveyancing Act 1919 (NSW), s 36A Cases Cited: Capogreco v Rogerson [2015] NSWSC 1371 Ferrari v Beccaris [1979] 2 NSWLR 181 Naziridis v Rimis (1985) 9 BPR 16 Re Gillie, ex parte Cornell (1996) 150 ALR 110; (1996) 70 FCR 254 Category: Principal judgment Parties: Emily Kate Neilan (Plaintiff) Steven Neilan (Defendant) Representation: Counsel: S Southwick (Plaintiff)