Foundas v Arambatzis (No. 3) [2020] NSWCA 87

Foundas v Arambatzis (No. 3) [2020] NSWCA 87

Order 8 should not be set aside because, once the s 66G order appointing trustees for sale was made, the appellant and first respondent no longer held beneficial interests in the land; their interests were converted into rights to the proceeds of sale. Although the trustees had not become registered proprietors and the appellant retained bare legal title under s 86(2) of the Real Property Act 1900 (NSW), that title did not support a right to possession as against the trustees for sale. On the taking of an account in equity, the appellant could not rely on a co-owner's legal right of occupation to avoid accounting for an occupation fee after demand was made by the trustees.

Jurisdiction
Australia
Judgment Date
07 May 2020
Procedural Posture
Land Law Co Ownership Application Concerning Occupation Rent After Appointment of Trustees for Sale / Application to Set Aside or Vary Order 8 Made on 24 March 2020, Treated as an Application Under R 36.16(3 A) of the Uniform Civil Procedure Rules 2005 (nsw)
Outcome
Application to set aside order 8 made on 24 March 2020 dismissed with costs.
Legal Topics
['occupation Rent' 'statutory Trust for Sale' 'section 66 G Conveyancing Act 1919 (nsw)' 'vesting Order' 'right to Possession' 'registered Proprietor']
['land Law' 'co Ownership' 'equity' 'civil Procedure'] ['occupation Rent' 'statutory Trust for Sale' 'section 66 G Conveyancing Act 1919 (nsw)' 'vesting Order' 'right to Possession' 'registered Proprietor']

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Procedural Posture

Land Law Co Ownership Application Concerning Occupation Rent After Appointment of Trustees for Sale / Application to Set Aside or Vary Order 8 Made on 24 March 2020, Treated as an Application Under R 36.16(3 A) of the Uniform Civil Procedure Rules 2005 (nsw)

Legal Issues

  1. 1 ['Whether order 8 requiring the appellant to be charged with a reasonable market rent for occupation of the property from 29 October 2018 to delivery of vacant possession should be set aside.' "Whether the appellant's status as a co-owner and registered proprietor preserved a right to occupy the property without charge after an order appointing trustees for sale under s 66G of the Conveyancing Act 1919 (NSW)."]

Ratio Decidendi

Order 8 should not be set aside because, once the s 66G order appointing trustees for sale was made, the appellant and first respondent no longer held beneficial interests in the land; their interests were converted into rights to the proceeds of sale. Although the trustees had not become registered proprietors and the appellant retained bare legal title under s 86(2) of the Real Property Act 1900 (NSW), that title did not support a right to possession as against the trustees for sale. On the taking of an account in equity, the appellant could not rely on a co-owner's legal right of occupation to avoid accounting for an occupation fee after demand was made by the trustees.

Court Disposition

Application to set aside order 8 made on 24 March 2020 dismissed with costs.

Orders

  • ['Order 8 made on 24 March 2020 should not be set aside nor varied.' "Ms Foundas' application to set aside order 8 made on 24 March 2020 should be dismissed with costs." 'If the appellant seeks a stay of orders 6 and 7 after 28 May 2020, by 14 May 2020 the appellant is to file and serve any affidavit and submissions...