Vidler v Simpson [2013] NSWSC 1457

Procedural Posture

Proceedings Originally Seeking an Order Under S 66 G of the Conveyancing Act 1919 (nsw) for Appointment of Trustees to Sell Co Owned Property / Ex Tempore Judgment on Dispute Concerning Performance or Abandonment of a Settlement Agreement, Distribution of Sale Proceeds, Contribution for Outstanding Fees, and Costs

Legal Issues

1. 1 ['Whether the parties abandoned the original settlement agreement under which the defendants were to pay each plaintiff $600,000 for their respective shares in the property' 'What terms governed the subsequent arrangement for sale of the property and distribution of proceeds' 'Whether the plaintiffs were entitled to one third each of the sale proceeds after deducting expenses or only $600,000 each plus interest' 'Whether the defendants were liable to contribute to outstanding fees incurred in complying with an order of the Environmental Protection Authority' 'Whether the plaintiffs were entitled to recover interest included in the contractor payment' 'What costs order should be made']

Ratio Decidendi

The defendants could not perform the original settlement agreement to buy the plaintiffs' interests, proposed instead that the property be sold and the proceeds split equally, and the plaintiffs accepted that proposal by signing the agency agreement. The parties therefore abandoned the original settlement agreement and agreed to a sale and equal split of the proceeds. Accordingly, the plaintiffs were entitled to one third each of the sale proceeds after deducting expenses. The plaintiffs were also entitled to contribution for contractor amounts paid over and above their two thirds share because that contribution liability arose after the settlement agreement and was not released,...

Court Disposition

The plaintiffs were held entitled to a one third share each of the proceeds of sale of the property after deducting expenses and to recover the amount paid to contractors over and above their two thirds share of that liability; the defendants should pay the plaintiffs' costs of the application.

Orders

• ['The plaintiffs are entitled to a one third share each of the proceeds of sale of the property after deducting expenses.' 'The plaintiffs are entitled to recover the amount that they have paid to contractors over and above their two third share of that liability.' 'The plaintiffs are to bring in short minutes of...