Vlatko v Short [2022] NSWSC 1542

Vlatko v Short [2022] NSWSC 1542

The consent orders, properly construed as a final settlement of all existing claims relating to the property, prevent the Trustees from entertaining or allowing set off of any claims for expenses incurred prior to the date of the consent orders, as such claims were mutually released by Order 13; Trustees are, however, justified in adjusting and offsetting post-order expenses as specifically set out in Order 14.

Parties
Plaintiff/applicant: Jamie Vlatko; First Defendant/first Respondent: Malcolm Graham Short; Second Defendant/second Respondent: Kieran Trevor Le Plastrier; Third Respondent: Jodie Sue Green; Fourth Respondent: Johnathan Neofytou
Jurisdiction
Australia
Judgment Date
11 November 2022
Procedural Posture
Equity / Final Orders After Determination of Construction of Consent Orders
Outcome
Declarations and final orders granted in favour of Plaintiff and Trustees' position; competing costs orders to be submitted if not agreed.
Legal Topics
Co Ownership, Statutory Trust for Partition, Consent Orders—construction, Set Off Claims, Trustee Powers and Directions
Land Law Trusts and Trustees Civil Procedure Co Ownership Statutory Trust for Partition Consent Orders—construction Set Off Claims Trustee Powers and Directions

Case Brief

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Parties

Jamie Vlatko

Plaintiff/applicant

Malcolm Graham Short

First Defendant/first Respondent

Kieran Trevor Le Plastrier

Second Defendant/second Respondent

Jodie Sue Green

Third Respondent

Johnathan Neofytou

Fourth Respondent

Procedural Posture

Equity / Final Orders After Determination of Construction of Consent Orders

Legal Issues

  1. 1 Proper construction of consent orders dated 14 October 2021
  2. 2 Whether Trustees are justified in refusing to entertain set off claims relating to pre-order expenses
  3. 3 Whether Trustees should offset post-order expenses under Order 14 only

Ratio Decidendi

The consent orders, properly construed as a final settlement of all existing claims relating to the property, prevent the Trustees from entertaining or allowing set off of any claims for expenses incurred prior to the date of the consent orders, as such claims were mutually released by Order 13; Trustees are, however, justified in adjusting and offsetting post-order expenses as specifically set out in Order 14.

Court Disposition

Declarations and final orders granted in favour of Plaintiff and Trustees' position; competing costs orders to be submitted if not agreed.

Orders

  • Declare the Trustees are justified in not permitting any set offs to occur prior to the entry of the Consent Orders dated 14 October 2021 in these proceedings.
  • Declare The Trustees are justified in offsetting the amount payable to the Defendants pursuant to Order 2 above against the overpayment of $93,735.44 so that no amount is payable to the Defendants from trust with respect to Order 14.