Dominic Morabito & Anor v Terence Steven O'Sullivan & Anor [2014] NSWSC 1329

Dominic Morabito & Anor v Terence Steven O'Sullivan & Anor [2014] NSWSC 1329

The applicants were trustees for sale of the Property under s 66G of the Conveyancing Act 1919 (NSW), and the evidence showed that the first respondent was thwarting the sale by remaining in possession without apparent reason. An order for possession was therefore appropriate, but issue of a writ was deferred until 30 days after personal service of the orders and reasons to give the first respondent an opportunity to apply to set them aside. His unreasonable conduct justified indemnity costs.

Jurisdiction
Australia
Judgment Date
26 September 2014
Procedural Posture
Motion for Possession of Land / Ex Tempore Judgment
Outcome
Order for possession made.
Legal Topics
['possession' 'trustees for Sale' 's 66 G Conveyancing Act 1919 (nsw)' 'writ of Possession' 'personal Service' 'indemnity Costs']
['real Property' 'civil Procedure' 'costs'] ['possession' 'trustees for Sale' 's 66 G Conveyancing Act 1919 (nsw)' 'writ of Possession' 'personal Service' 'indemnity Costs']

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Procedural Posture

Motion for Possession of Land / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the first respondent should be ordered to give possession of the Property to the applicants as trustees for sale.' 'Whether leave should be granted to issue a writ of possession despite concern about formal proof of personal service of the motion.' "Whether the first respondent should pay the applicants' costs on an indemnity basis."]

Ratio Decidendi

The applicants were trustees for sale of the Property under s 66G of the Conveyancing Act 1919 (NSW), and the evidence showed that the first respondent was thwarting the sale by remaining in possession without apparent reason. An order for possession was therefore appropriate, but issue of a writ was deferred until 30 days after personal service of the orders and reasons to give the first respondent an opportunity to apply to set them aside. His unreasonable conduct justified indemnity costs.

Court Disposition

Order for possession made.

Orders

  • ['Orders pursuant to ss 20 and 92 of the Civil Procedure Act 2005 (NSW) that the first respondent give possession of the land contained in XXXX, New South Wales ("Property") within 7 days.' "Grants leave to the first and second applicant to issue a writ of possession of the Property 30 days after the date on which...