Application by Buckett; Kent v Buckett [2012] NSWSC 735

Application by Buckett; Kent v Buckett [2012] NSWSC 735

The applicants established the criteria for statutory trustees for sale under s 66G of the Conveyancing Act 1919 by proof of co-ownership, the necessity for sale in administration of the estate, and absence of contrary proprietary or fiduciary rights. Adequate notice was given to the absent party. No discretionary bar nor evidence was present to dissuade appointment of the proposed independent trustees. Family provision proceedings were to be dismissed for want of prosecution. Orders for sale, appointment of trustees, and costs were appropriate.

Jurisdiction
Australia
Judgment Date
02 July 2012
Procedural Posture
Civil / Final Judgment at Trial, Following Ex Parte Hearing in Defendant's Absence
Outcome
Orders for appointment of trustees for sale, vesting of property, directions for proceeds distribution and costs, and dismissal of the related family provision proceedings.
Legal Topics
['statutory Trust for Sale' 'trustee Appointment' 'co Ownership Dispute' 'family Provision Claim' 'costs of Proceedings']
['equity' 'property Law' 'estates'] ['statutory Trust for Sale' 'trustee Appointment' 'co Ownership Dispute' 'family Provision Claim' 'costs of Proceedings']

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Procedural Posture

Civil / Final Judgment at Trial, Following Ex Parte Hearing in Defendant's Absence

Legal Issues

  1. 1 ['Whether trustees for sale should be appointed under s 66G of the Conveyancing Act 1919 for co-owned land' 'Whether the requirements for proceeding in the absence of a party were satisfied (notice, opportunity to appear)' 'Whether there is an impediment or discretionary ground to refuse a statutory trust for sale' 'Whether a family provision claim under the Succession Act 2006 should be dismissed for want of appearance' 'Appropriate orders for costs following success in s 66G proceedings']

Ratio Decidendi

The applicants established the criteria for statutory trustees for sale under s 66G of the Conveyancing Act 1919 by proof of co-ownership, the necessity for sale in administration of the estate, and absence of contrary proprietary or fiduciary rights. Adequate notice was given to the absent party. No discretionary bar nor evidence was present to dissuade appointment of the proposed independent trustees. Family provision proceedings were to be dismissed for want of prosecution. Orders for sale, appointment of trustees, and costs were appropriate.

Court Disposition

Orders for appointment of trustees for sale, vesting of property, directions for proceeds distribution and costs, and dismissal of the related family provision proceedings.

Orders

  • ['Glenn Richard Walters and Roderick Alexander Ian Storie appointed as trustees for sale of the property and property vested in them subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares, to be held on statutory trust for sale under s 66G of the Conveyancing Act...