Ross v Byrne [2002] NSWSC 182

Ross v Byrne [2002] NSWSC 182

The Court held that since there is no opposition to the appointment of a trustee for sale and the essential issue regarding the plaintiff's liability for expenditures is already the subject of Local Court proceedings, it is appropriate to appoint the trustee for sale, reserve liberty to apply regarding disbursement pending resolution of liability, and not order the taking of accounts or a stay of the Local Court proceedings.

Jurisdiction
Australia
Judgment Date
21 February 2002
Procedural Posture
Summons / Judgment
Outcome
Orders made as per prayers 1, 2 and 3 in the summons; leave to apply reserved for further issues on disbursement; costs divided between defendants and property proceeds.
Legal Topics
['appointment of Statutory Trustee for Sale' 'joint Tenancy' 'tenants in Common' 'taking of Accounts' 'costs']
['equity'] ['appointment of Statutory Trustee for Sale' 'joint Tenancy' 'tenants in Common' 'taking of Accounts' 'costs']

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Procedural Posture

Summons / Judgment

Legal Issues

  1. 1 ['Whether a statutory trustee for sale should be appointed under s 66G of the Conveyancing Act 1919' 'Whether an account should be directed to be taken inter partes for expenditures on the property' 'Whether Supreme Court should stay the Local Court proceedings regarding the alleged liability for expenditure']

Ratio Decidendi

The Court held that since there is no opposition to the appointment of a trustee for sale and the essential issue regarding the plaintiff's liability for expenditures is already the subject of Local Court proceedings, it is appropriate to appoint the trustee for sale, reserve liberty to apply regarding disbursement pending resolution of liability, and not order the taking of accounts or a stay of the Local Court proceedings.

Court Disposition

Orders made as per prayers 1, 2 and 3 in the summons; leave to apply reserved for further issues on disbursement; costs divided between defendants and property proceeds.

Orders

  • ['Orders as in prayers 1, 2 and 3 in the summons granted.' 'Liberty to apply reserved to the parties and Permanent Trustee Company Limited with respect to disbursement of net proceeds of sale.' "Defendants to pay one half of the plaintiff's costs up to and including the date of judgment; the balance of plaintiff's...