Spathis v Nanos [2008] NSWSC 418

Spathis v Nanos [2008] NSWSC 418

The defendant did not identify any circumstance making it inequitable to order sale under s 66G. Her concern about dummy bidding was not well founded, the parties' dealings showed an inability to agree on market value by valuations, there was no unreasonable change of position by the plaintiff, and the cost-saving argument did not materially outweigh the plaintiff's entitlement to realise his share and seek the best possible sale price. The facts did not resemble Cain v Cain and did not justify moulding the orders to require a valuation-based buyout by the defendant.

Jurisdiction
Australia
Judgment Date
13 May 2008
Procedural Posture
Application Under S 66 G of the Conveyancing Act 1919 for Appointment of Trustees for Sale of Co Owned Land / Principal Judgment
Outcome
Orders under s 66G of the Conveyancing Act 1919 made appointing trustees for sale; defendant granted leave under s 66I to bid for or buy the property; costs to be heard separately.
Legal Topics
['co Ownership' 'statutory Trust for Sale' 'appointment of Trustees for Sale' 'discretion Under S 66 G of the Conveyancing Act 1919' 'leave for Co Owner to Bid or Buy Under S 66 I']
['real Property' 'equity'] ['co Ownership' 'statutory Trust for Sale' 'appointment of Trustees for Sale' 'discretion Under S 66 G of the Conveyancing Act 1919' 'leave for Co Owner to Bid or Buy Under S 66 I']

Case Brief

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Procedural Posture

Application Under S 66 G of the Conveyancing Act 1919 for Appointment of Trustees for Sale of Co Owned Land / Principal Judgment

Legal Issues

  1. 1 ['Whether orders should be made under s 66G of the Conveyancing Act 1919 appointing trustees for sale of 39-45 Tickner Street, Castlereagh.' "Whether the defendant's desire and offers to purchase the plaintiff's share at market value justified refusing an order under s 66G." 'Whether the plaintiff had unreasonably changed position by insisting on a sale by trustees.' 'Whether concern about possible dummy bids at public auction justified refusing or modifying the order.' "Whether any s 66G orders should be moulded to accommodate the defendant's wished-for purchase following valuation, as in Cain v Cain [2007] NSWSC 623."]

Ratio Decidendi

The defendant did not identify any circumstance making it inequitable to order sale under s 66G. Her concern about dummy bidding was not well founded, the parties' dealings showed an inability to agree on market value by valuations, there was no unreasonable change of position by the plaintiff, and the cost-saving argument did not materially outweigh the plaintiff's entitlement to realise his share and seek the best possible sale price. The facts did not resemble Cain v Cain and did not justify moulding the orders to require a valuation-based buyout by the defendant.

Court Disposition

Orders under s 66G of the Conveyancing Act 1919 made appointing trustees for sale; defendant granted leave under s 66I to bid for or buy the property; costs to be heard separately.

Orders

  • ['Order pursuant to section 66G of the Conveyancing Act 1919 that Constantine Dion Vertzayias and Harry Danalis be appointed Trustees of the Property comprised in Certificate of Title Folio Identifier 12/236008 together with all improvements erected thereon and being the property known as 39-45 Tickner Street,...