Neilan v Neilan [2019] NSWSC 66

Neilan v Neilan [2019] NSWSC 66

The defendant had notice of the amended summons and hearing, so it was appropriate to proceed in his absence. The plaintiff established a 75% interest in the relevant shares, satisfying the threshold under s 36A. Although the shares might be technically divisible, their value was tied to the right to occupy Flat 3 and sale of only the plaintiff's 75% interest would be impractical. In those circumstances, and having regard to evidence concerning outstanding rates and levies, it was appropriate to order sale of the shares and consequential relief.

Jurisdiction
Australia
Judgment Date
06 February 2019
Procedural Posture
Application Under S 36 a of the Conveyancing Act 1919 (nsw) for Sale of Co Owned Shares / Principal Judgment on Amended Summons Heard in the Defendant's Absence
Outcome
Application granted; sale of the shares ordered with consequential orders including vacation of the premises and distribution of sale proceeds.
Legal Topics
['division of Co Owned Chattels' 'sale of Shares Carrying Occupation Rights' 'tenants in Common' 'consequential Orders for Sale and Vacation of Premises']
['personal Property' 'co Ownership' 'equity' 'conveyancing'] ['division of Co Owned Chattels' 'sale of Shares Carrying Occupation Rights' 'tenants in Common' 'consequential Orders for Sale and Vacation of Premises']

Case Brief

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Procedural Posture

Application Under S 36 a of the Conveyancing Act 1919 (nsw) for Sale of Co Owned Shares / Principal Judgment on Amended Summons Heard in the Defendant's Absence

Legal Issues

  1. 1 ['Whether the Court should proceed to hear the amended summons in the absence of the defendant.' 'Whether s 36A of the Conveyancing Act 1919 (NSW) empowered the Court to order sale of the shares in Avelona Flats Pty Ltd held by the plaintiff and defendant as tenants in common.' 'Whether the plaintiff had established an interest to the extent required for relief under s 36A.' 'What consequential orders should be made for sale, vacation of the premises and distribution of sale proceeds.']

Ratio Decidendi

The defendant had notice of the amended summons and hearing, so it was appropriate to proceed in his absence. The plaintiff established a 75% interest in the relevant shares, satisfying the threshold under s 36A. Although the shares might be technically divisible, their value was tied to the right to occupy Flat 3 and sale of only the plaintiff's 75% interest would be impractical. In those circumstances, and having regard to evidence concerning outstanding rates and levies, it was appropriate to order sale of the shares and consequential relief.

Court Disposition

Application granted; sale of the shares ordered with consequential orders including vacation of the premises and distribution of sale proceeds.

Orders

  • ['Pursuant to s 36A of the Conveyancing Act 1919 (NSW), the shares in Avelona Flats Pty Ltd, being Share Group C numbered 2281-3420, held in the name of the plaintiff as to 75% and the defendant as to 25% as tenants in common, be sold.' 'The plaintiff and the defendant do all things necessary to give effect to the...