O’Dea v O’Dea [2019] NSWSC 1560

Supreme Court New South Wales

Medium Neutral Citation: O'Dea v O'Dea [2019] NSWSC 1560 Hearing dates: 11 and 29 October, 6 November 2019 Date of orders: 06 November 2019 Decision date: 06 November 2019 Jurisdiction: Equity Before: Darke J Decision: Order directing the trustees to make particular distribution refused. Judicial advice given to trustees concerning amount to be retained as security for right of indemnity. Catchwords: EQUITY – trusts and trustees – application by plaintiffs for an order that the trustees of a statutory trust for sale under s 66G of the Conveyancing Act 1919 (NSW) be directed to distribute proceeds of sale in a particular manner by making various adjustments – where the orders recording the terms of the statutory trust for sale required the trustees to distribute the proceeds of sale to the plaintiffs and the defendant in equal shares, subject to any adjustments that should be made in favour of either side – held that the orders should not be construed so as to require the trustees to make the adjustments sought by the plaintiffs – trustees not bound to decide that the adjustments should be made – proposed adjustments not adjustments between the plaintiffs and defendant in their capacity as co-owners – inappropriate to direct trustees to make distribution as sought by the plaintiffs

EQUITY – trusts and trustees – judicial advice – application for judicial advice brought by trustees of a statutory trust for sale under s 66G of the Conveyancing Act 1919 (NSW) – where plaintiffs and defendant are beneficiaries under the statutory trust for sale – where the defendant previously entered into contract with trustees to purchase the property – where that contract was terminated by trustees – where property subsequently sold to third party – where defendant foreshadows potential claims against trustees in relation to the termination of the contract – whether trustees are justified in retaining some or all of the proceeds of sale to protect their right of indemnity in relation to the potential claims – trustees justified in retaining some of the proceeds of sale – judicial advice given Legislation Cited: Conveyancing Act 1919 (NSW), ss 66F, 66G Trustee Act 1925 (NSW), s 63 Cases Cited: Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd (2008) 14 BPR 98,326; [2008] NSWSC 839 Bar-Mordecai v State of New South Wales (2012) 83 NSWLR 125; [2012] NSWCA 207 Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210 Re Fettell (1952) 52 SR (NSW) 221 Ross v Ross (2010) 15 BPR 28,945; [2010] NSWCA 301 Whitehead v Whitehead [2002] NSWSC 486 Category: Consequential orders (other than Costs) Parties: Liam Bailey (First Applicant) Christopher Palmer (Second Applicant) Rosanna Elizabeth O'Dea, Larissa Mary O'Dea and Andrew Thomas Jotham O'Dea (Plaintiffs) Michael Thomas O'Dea (Defendant) Representation: Counsel: Mr M K Condon SC (Applicants) Mr G Farland (Plaintiffs) Mr D M Thackeray, solicitor (Defendant)