Smith & Hillig v Gao [2021] NSWSC 1016

Smith & Hillig v Gao [2021] NSWSC 1016

In the circumstances of continued non-cooperation and unreasonable conduct by the first respondent, and applying relevant authorities, the applicants (trustees for sale) are entitled to formal vesting of the property, an order for vacant possession (including writ for possession), the deduction of a fixed occupation fee of $685 per week from 22 January 2021 until possession is obtained, deduction of unnecessary costs caused by the respondent's conduct from her share of sale proceeds, and payment of the applicants' indemnity costs from her share.

Parties
First Applicant: Michael John Morris Smith; Second Applicant: Peter Hillig; First Respondent: Min Gao; Second Respondent: Graham Perry
Jurisdiction
Australia
Judgment Date
16 July 2021
Procedural Posture
Equity Application (consequential Orders) / Post Judgment, Application for Consequential and Ancillary Orders
Outcome
Application granted; orders made as sought with minor qualification as to timeline for vacant possession.
Legal Topics
Costs—indemnity Basis, Vesting Order, Vacant Possession, Writ of Possession, Mesne Profits, Trustees for Sale, Orders for Sale of Land
Equity Property Law Civil Procedure Costs—indemnity Basis Vesting Order Vacant Possession Writ of Possession Mesne Profits +2 more

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Parties

Michael John Morris Smith

First Applicant

Peter Hillig

Second Applicant

Min Gao

First Respondent

Graham Perry

Second Respondent

Procedural Posture

Equity Application (consequential Orders) / Post Judgment, Application for Consequential and Ancillary Orders

Legal Issues

  1. 1 Whether to order formal vesting of the Parramatta Property in the trustees for sale
  2. 2 Whether to order delivery of vacant possession and a writ for possession
  3. 3 Whether to direct the deduction of an occupation fee/mesne profits from first respondent's share

Ratio Decidendi

In the circumstances of continued non-cooperation and unreasonable conduct by the first respondent, and applying relevant authorities, the applicants (trustees for sale) are entitled to formal vesting of the property, an order for vacant possession (including writ for possession), the deduction of a fixed occupation fee of $685 per week from 22 January 2021 until possession is obtained, deduction of unnecessary costs caused by the respondent's conduct from her share of sale proceeds, and payment of the applicants' indemnity costs from her share.

Court Disposition

Application granted; orders made as sought with minor qualification as to timeline for vacant possession.

Orders

  • Property to vest in applicants as trustees for sale.
  • First respondent to deliver vacant possession of the Parramatta Property by 10 September 2021.