Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341

Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341

Although the Alexander/Hicks proposal had some advantages in cost and experience, the commercial decisions required for sale and harvesting of the plantation made independence the decisive factor. Because Messrs Parbery and Smith were completely independent, while Messrs Alexander and Hicks had potential conflicts arising from interests or roles concerning adjoining lots and PFA-related land, the investors generally would be better served by appointing Messrs Parbery and Smith. The amended summons sought production of certificates of title, permitting orders under s 138 of the Real Property Act 1900, and ordinary costs should be paid from proceeds of sale because the matter had to come to...

Jurisdiction
Australia
Judgment Date
19 April 2006
Procedural Posture
Summons and Cross Summons in the Equity Division Seeking Appointment of Trustees for Sale Under S 66 G of the Conveyancing Act 1919 and Related Real Property Act Orders / Ex Tempore Judgment
Outcome
Orders made for the plaintiff appointing Messrs Parbery and Smith as trustees for sale; costs to be paid out of the proceeds of sale.
Legal Topics
['appointment of Trustees for Sale' 'statutory Trust for Sale' 'cancellation and Re Issuing of Certificates of Title' 'co Ownership of Land' 'trustee Independence and Conflict of Interest']
['conveyancing' 'trusts' 'torrens Title'] ['appointment of Trustees for Sale' 'statutory Trust for Sale' 'cancellation and Re Issuing of Certificates of Title' 'co Ownership of Land' 'trustee Independence and Conflict of Interest']

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Procedural Posture

Summons and Cross Summons in the Equity Division Seeking Appointment of Trustees for Sale Under S 66 G of the Conveyancing Act 1919 and Related Real Property Act Orders / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether an order should be made under s 66G of the Conveyancing Act 1919 appointing trustees for sale of the land.' 'Whether Messrs Parbery and Smith or Messrs Alexander and Hicks should be appointed as trustees for sale.' 'Whether orders should be made under s 138 of the Real Property Act 1900 for production, cancellation and re-issue of certificates of title.' 'How the costs of the proceedings should be paid.']

Ratio Decidendi

Although the Alexander/Hicks proposal had some advantages in cost and experience, the commercial decisions required for sale and harvesting of the plantation made independence the decisive factor. Because Messrs Parbery and Smith were completely independent, while Messrs Alexander and Hicks had potential conflicts arising from interests or roles concerning adjoining lots and PFA-related land, the investors generally would be better served by appointing Messrs Parbery and Smith. The amended summons sought production of certificates of title, permitting orders under s 138 of the Real Property Act 1900, and ordinary costs should be paid from proceeds of sale because the matter had to come to...

Court Disposition

Orders made for the plaintiff appointing Messrs Parbery and Smith as trustees for sale; costs to be paid out of the proceeds of sale.

Orders

  • ['Messrs Parbery and Smith were appointed as trustees for sale of the whole of the land contained in lots 1, 4, 7, 8, 9 and 10 in deposited plan 264564 under s 66G of the Conveyancing Act 1919.' 'The usual vesting and consequential orders under s 66G were made.' 'Orders were made requiring production of certificates...