Meszaros v Meszaros [2017] NSWSC 1193

Meszaros v Meszaros [2017] NSWSC 1193

Although the plaintiff was likely to have obtained an order for appointment of trustees for sale, the usual approach in s 66G proceedings is that both parties' costs are paid out of the proceeds of sale as an incident of co-ownership. The defendant's early agreement to sale after proceedings commenced was not unreasonable, there was no evidence that he avoided service, and there was no reason to depart from the usual approach.

Jurisdiction
Australia
Judgment Date
06 September 2017
Procedural Posture
Proceedings for Appointment of Trustees for Sale of Land Pursuant to S 66 G of the Conveyancing Act 1919 (nsw) / Costs Determination on the Papers After the Principal Relief Was Resolved by Settlement
Outcome
The plaintiff's application for an order that the defendant pay her costs was rejected; the parties' costs were ordered to be paid out of the proceeds of sale.
Legal Topics
['appointment of Trustees for Sale' 'co Ownership of Land' 's 66 G Conveyancing Act 1919 (nsw)' 'costs Out of Proceeds of Sale']
['equity' 'costs' 'real Property'] ['appointment of Trustees for Sale' 'co Ownership of Land' 's 66 G Conveyancing Act 1919 (nsw)' 'costs Out of Proceeds of Sale']

Case Brief

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Procedural Posture

Proceedings for Appointment of Trustees for Sale of Land Pursuant to S 66 G of the Conveyancing Act 1919 (nsw) / Costs Determination on the Papers After the Principal Relief Was Resolved by Settlement

Legal Issues

  1. 1 ["Whether the defendant should pay the plaintiff's costs of the proceedings after settlement without a determination on the merits." "Whether the parties' costs should be paid out of the proceeds of sale of the co-owned property." 'Whether the defendant acted unreasonably by not consenting to sale before proceedings were commenced or by allegedly avoiding service.']

Ratio Decidendi

Although the plaintiff was likely to have obtained an order for appointment of trustees for sale, the usual approach in s 66G proceedings is that both parties' costs are paid out of the proceeds of sale as an incident of co-ownership. The defendant's early agreement to sale after proceedings commenced was not unreasonable, there was no evidence that he avoided service, and there was no reason to depart from the usual approach.

Court Disposition

The plaintiff's application for an order that the defendant pay her costs was rejected; the parties' costs were ordered to be paid out of the proceeds of sale.

Orders

  • ["The parties' costs of the proceedings be paid out of the proceeds of sale of the property at 61 Kooringal Drive, Agnes Banks, after payment of the amounts described in clause 1(e) of the deed made on 5 May 2017 between the plaintiff and the defendant."]