Tompkins v Gorton [2024] NSWSC 716

Tompkins v Gorton [2024] NSWSC 716

The Court was satisfied that Mr Gorton had been served, notified and had no sufficient explanation for non-appearance, and that any interest of his had vested in his trustee in bankruptcy. On the uncontested evidence and the active parties' agreement, Mr Tompkins retained beneficial ownership of the Second Defendant's interests. Westpac, as mortgagee, was a co-owner capable of seeking statutory trustees for sale, the Court had cross-vesting jurisdiction concerning the Queensland property, there was no resistance or inequitable basis to refuse sale, and the nominated trustees were fit and proper. Consent orders were therefore appropriate.

Jurisdiction
Australia
Judgment Date
12 June 2024
Procedural Posture
Equity Real Property List; Co Ownership and Statutory Trust for Sale Proceedings / Final Resolution by Consent Orders; Principal Judgment
Outcome
Consent orders made; declarations as to trust and vesting made; statutory trustees appointed for sale of the New South Wales and Queensland properties; proceedings otherwise dismissed with leave to discontinue against the First Defendant.
Legal Topics
['co Ownership' 'statutory Trust for Sale' 'appointment of Trustees for Sale' 'beneficial Ownership' 'mortgage Security' 'proceeding in Absence of Party' "vesting of Bankrupt's Property"]
['land Law' 'equity' 'real Property' 'bankruptcy'] ['co Ownership' 'statutory Trust for Sale' 'appointment of Trustees for Sale' 'beneficial Ownership' 'mortgage Security' 'proceeding in Absence of Party' "vesting of Bankrupt's Property"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Real Property List; Co Ownership and Statutory Trust for Sale Proceedings / Final Resolution by Consent Orders; Principal Judgment

Legal Issues

  1. 1 ["Whether the proceedings should be finally determined despite the First Defendant's absence from the hearing." "Whether the Plaintiff was beneficial owner of the Second Defendant's interests in the New South Wales and Queensland properties." 'Whether the Court should appoint trustees for sale of the New South Wales Property under s 66G of the Conveyancing Act 1919 (NSW) and the Queensland Property under s 38 of the Property Law Act 1974 (Qld).' 'Whether Westpac, as mortgagee, was a co-owner for the purposes of the statutory trust for sale provisions.' "Whether the First Defendant's bankruptcy affected claims to, or enforcement of security over, the properties."]

Ratio Decidendi

The Court was satisfied that Mr Gorton had been served, notified and had no sufficient explanation for non-appearance, and that any interest of his had vested in his trustee in bankruptcy. On the uncontested evidence and the active parties' agreement, Mr Tompkins retained beneficial ownership of the Second Defendant's interests. Westpac, as mortgagee, was a co-owner capable of seeking statutory trustees for sale, the Court had cross-vesting jurisdiction concerning the Queensland property, there was no resistance or inequitable basis to refuse sale, and the nominated trustees were fit and proper. Consent orders were therefore appropriate.

Court Disposition

Consent orders made; declarations as to trust and vesting made; statutory trustees appointed for sale of the New South Wales and Queensland properties; proceedings otherwise dismissed with leave to discontinue against the First Defendant.

Orders

  • ['The Court declares that the Plaintiff is and has at all times been the beneficial owner of the interests of the Second Defendant in the New South Wales Property and the Queensland Property.' 'The Second Defendant holds her interests in the Properties on trust for the Plaintiff.' "Pursuant to section 71 of the...