Denton by her tutor NSW Trustee and Guardian v Denton [2019] NSWSC 660

Supreme Court New South Wales

Medium Neutral Citation: Denton by her tutor NSW Trustee and Guardian v Denton [2019] NSWSC 660 Hearing dates: On the papers Date of orders: 05 June 2019 Decision date: 05 June 2019 Jurisdiction: Equity Before: Darke J Decision: Defendant ordered to pay the plaintiff's costs on an indemnity basis. Catchwords: COSTS – proceedings for appointment of trustees for sale of property under Conveyancing Act 1919 (NSW), s 66G – departure from the usual order made in such cases – NSW Trustee and Guardian ("NSW Trustee") appointed financial manager for plaintiff – where NSW Trustee made a decision to sell the co-owned property in order to pay the plaintiff's debts and provide for future expenses – where defendant unsuccessfully challenged the NSW Trustee's decision in NCAT – where defendant then agreed to sale but later maintained opposition to sale – whether defendant's conduct unreasonable – conduct held to be unreasonable – indemnity costs ordered Legislation Cited: Conveyancing Act 1919 (NSW), s 66G Cases Cited: Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 Category: Costs Parties: Evelyn Joyce Denton by her tutor NSW Trustee and Guardian (Plaintiff) Peter Denton (Defendant) Representation: Counsel: K Burke (Plaintiff) N Carney (Defendant)

Solicitors: Chamberlains Law Firm (Plaintiff) Ferry Stols Law (Defendant) File Number(s): 2018/312284 Publication restriction: None

Judgment 1. On 12 October 2018 the plaintiff, by her tutor the NSW Trustee and Guardian ("NSW Trustee"), filed a Summons seeking relief under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of land situated at Koola Avenue, East Killara NSW ("the Property"). The plaintiff was a co-owner of the Property with the defendant, who is the plaintiff's son. At all material times, the dispute has been between the defendant and the NSW Trustee acting in its capacity as the financial manager of the plaintiff's estate. 2. The proceedings were initially contested by the defendant. However, on 22 March 2019, the parties reached an in-principle settlement. On 2 April 2019, the Court approved the settlement. Orders were made appointing trustees for sale and disposing of the proceedings (save as to costs). Orders were made on the same day for the parties to file and serve any evidence in relation to the question of costs and to file and serve any written submissions on costs. It was noted that the issue of costs was to be dealt with on the papers. 3. In summary, the plaintiff contends that the "usual" costs order made in cases under s 66G of the Conveyancing Act namely, that the parties' costs of the proceedings be paid out of the proceeds of sale, should be displaced in the circumstances of this case. Instead, the plaintiff seeks an order that the defendant pay the plaintiff's costs of the proceedings on an indemnity basis. The basis of such order is said to arise from the defendant's unreasonable conduct in resisting the order for the appointment of trustees for sale. The defendant essentially opposes the orders on the ground that his conduct was reasonable in the circumstances. 4. In support of the application, the plaintiff relies on the affidavit of Jarrad McCarthy sworn 26 March 2019. In opposition, the defendant relies on parts of the affidavits of Rana Khoreiche dated 13 March 2019 and Gary Patterson sworn 12 October 2018. The Court has considered the entirety of each of those affidavits.