Vacation Club Ltd v A G G Properties Pty Ltd [2019] NSWSC 1357

Supreme Court New South Wales

Medium Neutral Citation: Vacation Club Ltd v A G G Properties Pty Ltd [2019] NSWSC 1357 Hearing dates: On the papers Date of orders: 09 October 2019 Decision date: 09 October 2019 Jurisdiction: Equity Before: Darke J Decision: Trustees for sale appointed in respect of co-owned property. Ancillary orders made under Real Property Act 1900 (NSW) s 138(2). Catchwords: LAND LAW – co-ownership – statutory trust for sale – application by plaintiffs under Conveyancing Act 1919 (NSW) s 66G(1) – timeshare resort operated by company on property – where property is co-owned by hundreds of defendants – where almost all of the defendant co-owners are members of the company – where company passed resolutions to authorise certain co-owners to make application to the Court for the appointment of trustees for sale in respect of the property – whether it is appropriate to appoint trustees for sale – no reason to refuse relief – trustees for sale appointed

LAND LAW – Torrens title – powers of Court – Real Property Act 1900 (NSW) s 138 – ancillary orders sought to cancel sub-folios and to create a new consolidated folio in respect of property – where co-owners have each been issued with a certificate of title in respect of their respective sub-folios – where plaintiffs sought orders for the production of the certificates of title – where only some of the certificates of title produced to the plaintiffs – where Court satisfied that certificates of title have not been, and are not likely to be, produced – orders made under s 138(2) Legislation Cited: Conveyancing Act 1919 (NSW), s 66G Corporations Act 2001 (Cth), ss 140, 461, Ch 5C Real Property Act 1900 (NSW), s 138 Uniform Civil Procedure Rules 2005 (NSW), r 10.6 Cases Cited: Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd (2006) 18 BPR 35,209; [2006] NSWSC 341 Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 Bindaree Beef Pty Limited v Chinatex (Australia) Pty Ltd [2018] NSWSC 1499 Botterill v Botterill (2000) 10 BPR 18,787; [2000] NSWSC 1152 Callahan v O'Neill [2002] NSWSC 877 Capolingua v Da Silva [2016] NSWSC 1212 Chalhoub v Chalhoub [2005] NSWSC 572 City of Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 424; [2007] NSWCA 351 Crocombe v Pine Forests of Australia Pty Ltd (No 3) (2007) 13 BPR 24,241; [2007] NSWSC 217 Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 Matsen v Matsen [2008] NSWSC 135 McVeigh v Whitelaw [2005] NSWSC 1112 Prentice v Registrar General (2014) 17 BPR 33,231; [2014] NSWSC 1060 Sahab Holdings Pty Ltd v Registrar-General (2011) 15 BPR 29,627; [2011] NSWCA 395 Stephens v Debney (1959) 60 SR (NSW) 468 Tory v Tory [2007] NSWSC 1078 Woodgate as trustee in bankruptcy of Geoffrey Leonard Hadley v Registrar-General [2012] NSWSC 1640 Woodson (Sales) Pty Limited v Woodson (Australia) Pty Limited (1996) 7 BPR 14,685 Category: Principal judgment Parties: Vacation Club Ltd (First Plaintiff) Mark Andrew Skipper (Second Plaintiff) Jewell Rose Owen (Third Plaintiff) A G G Properties Pty Ltd and the parties listed in Schedule A (Defendants) Representation: Counsel: Mr B F Katekar (Plaintiffs)