M Matta & Ors v C Matta [2015] NSWSC 963

M Matta & Ors v C Matta [2015] NSWSC 963

Because Ms Cilia Matta had been served, had notice of the hearing and an opportunity to appear, it was proper to proceed in her absence. The overwhelming majority of co-owners wished to sell, there was no evidence of any fiduciary duty, contractual arrangement or other consideration preventing sale, and s 66G orders are ordinarily made almost as of right. Trustees for sale should therefore be appointed, and because the Plaintiffs incurred costs due to Ms Cilia Matta's opposition and non-attendance without advancing any reason against sale, those costs should be paid from her share of the sale proceeds on the ordinary basis.

Jurisdiction
Australia
Judgment Date
24 June 2015
Procedural Posture
Application for Appointment of Trustees for Sale Under S 66 G of the Conveyancing Act 1919 (nsw) / Hearing of Summons; Ex Tempore Principal Judgment; Defendant Did Not Appear
Outcome
Application granted.
Legal Topics
['termination of Co Ownership' 'statutory Trust for Sale' 'appointment of Trustees for Sale' 'proceeding in Absence of a Party' 'costs From Share of Sale Proceeds']
['real Property' 'civil Procedure' 'costs'] ['termination of Co Ownership' 'statutory Trust for Sale' 'appointment of Trustees for Sale' 'proceeding in Absence of a Party' 'costs From Share of Sale Proceeds']

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Procedural Posture

Application for Appointment of Trustees for Sale Under S 66 G of the Conveyancing Act 1919 (nsw) / Hearing of Summons; Ex Tempore Principal Judgment; Defendant Did Not Appear

Legal Issues

  1. 1 ['Whether it was proper to proceed with the hearing in the absence of Ms Cilia Matta.' 'Whether trustees for sale should be appointed under s 66G of the Conveyancing Act 1919 (NSW).' "Whether the costs of the proceedings should be borne out of Ms Cilia Matta's share of the sale proceeds."]

Ratio Decidendi

Because Ms Cilia Matta had been served, had notice of the hearing and an opportunity to appear, it was proper to proceed in her absence. The overwhelming majority of co-owners wished to sell, there was no evidence of any fiduciary duty, contractual arrangement or other consideration preventing sale, and s 66G orders are ordinarily made almost as of right. Trustees for sale should therefore be appointed, and because the Plaintiffs incurred costs due to Ms Cilia Matta's opposition and non-attendance without advancing any reason against sale, those costs should be paid from her share of the sale proceeds on the ordinary basis.

Court Disposition

Application granted.

Orders

  • ['Trustees for sale be appointed under s 66G of the Conveyancing Act 1919 (NSW).' 'The property be vested in the trustees on a statutory trust for sale under Pt 4 Div 6 of the Conveyancing Act 1919 (NSW).' 'The trustees are authorised to charge reasonable remuneration up to the specified hourly rate and up to the...