Eathorne & Ors v Araya-Marvin [2011] NSWSC 782

Eathorne & Ors v Araya-Marvin [2011] NSWSC 782

The Court exercised the discretion under s 66G(1) in favour of the plaintiffs because the defendant had no present enforceable entitlement to the Heritage lot under the Deed: the draft strata plan and partition transfer had not been registered, completion had not occurred, and the parties had reached an impasse making completion speculative. In circumstances of continuing mortgage default and a high probability that the Bank would exercise rights to possession and sale, appointing trustees for sale was not inconsistent with any current entitlement of the defendant and was justified by practical necessity.

Jurisdiction
Australia
Judgment Date
28 July 2011
Procedural Posture
Application Under S 66 G Conveyancing Act 1919 (nsw) for an Order Appointing Trustees for Sale of Co Owned Property / Principal Judgment
Outcome
Application granted; trustees appointed for sale and defendant ordered to pay the plaintiffs' costs.
Legal Topics
['appointment of Trustees for Sale' 'co Ownership' 'statutory Trust for Sale' 'contractual Entitlements Under Property Development Deed' 'mortgage Default and Mortgagee Sale' 'stay Pending Arbitration']
['real Property' 'equity'] ['appointment of Trustees for Sale' 'co Ownership' 'statutory Trust for Sale' 'contractual Entitlements Under Property Development Deed' 'mortgage Default and Mortgagee Sale' 'stay Pending Arbitration']

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Procedural Posture

Application Under S 66 G Conveyancing Act 1919 (nsw) for an Order Appointing Trustees for Sale of Co Owned Property / Principal Judgment

Legal Issues

  1. 1 ['Whether trustees should be appointed for sale of the co-owned Burraneer property under s 66G of the Conveyancing Act 1919 (NSW).' "Whether an order for sale would be inconsistent with the defendant's contractual entitlements under the Property Development Deed." 'Whether mortgage default and the risk of mortgagee possession and sale supported the exercise of discretion in favour of appointing trustees for sale.']

Ratio Decidendi

The Court exercised the discretion under s 66G(1) in favour of the plaintiffs because the defendant had no present enforceable entitlement to the Heritage lot under the Deed: the draft strata plan and partition transfer had not been registered, completion had not occurred, and the parties had reached an impasse making completion speculative. In circumstances of continuing mortgage default and a high probability that the Bank would exercise rights to possession and sale, appointing trustees for sale was not inconsistent with any current entitlement of the defendant and was justified by practical necessity.

Court Disposition

Application granted; trustees appointed for sale and defendant ordered to pay the plaintiffs' costs.

Orders

  • ['That Trent Hancock and Michael Hird of BDO Business Recovery and Insolvency (NSW-VIC) Pty Limited be appointed as trustees for the sale of the land situated at 27-31 Smarts Crescent, Burraneer NSW 2230, described in folio identifier 4/19017 ("Land").' 'That the Land be vested in the trustees subject to any...