Goldberg v Goldberg [2000] NSWSC 399

Goldberg v Goldberg [2000] NSWSC 399

The property needed to be sold, partition was not an option, there was no identified trust or equitable obligation preventing an order, and the possibility of a prospective purchaser did not make trustees unnecessary. Although the proposed trustees were acquainted with the plaintiff, their appointment was appropriate given the property value, absence of charge, and the defendant's ability as a solicitor to protect his rights. Rather than order demolition, the proper course was to declare the trustees' duties to obtain advice, consult under s 66H, and act to obtain the best price.

Jurisdiction
Australia
Judgment Date
03 May 2000
Procedural Posture
Application Under S 66 G of the Conveyancing Act 1919 for Appointment of Trustees for Sale of Jointly Owned Property / Judgment and Orders
Outcome
Application granted; trustees for sale appointed with declarations as to their duties and costs orders made.
Legal Topics
['partition and Sale' 'jointly Owned Property' 'trustees for Sale' 'duties of Trustees' 'costs']
['real Property' 'equity' 'trusts'] ['partition and Sale' 'jointly Owned Property' 'trustees for Sale' 'duties of Trustees' 'costs']

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 Jointly Owned Property / Judgment and Orders

Legal Issues

  1. 1 ['Whether trustees for sale should be appointed under s 66G of the Conveyancing Act 1919 for jointly owned property at Vaucluse.' 'Whether the trustees should be the persons put forward by the plaintiff despite their acquaintance with the plaintiff.' 'Whether trustees should be given power to demolish existing structures on the property before sale.' 'How the costs of the proceedings should be borne.']

Ratio Decidendi

The property needed to be sold, partition was not an option, there was no identified trust or equitable obligation preventing an order, and the possibility of a prospective purchaser did not make trustees unnecessary. Although the proposed trustees were acquainted with the plaintiff, their appointment was appropriate given the property value, absence of charge, and the defendant's ability as a solicitor to protect his rights. Rather than order demolition, the proper course was to declare the trustees' duties to obtain advice, consult under s 66H, and act to obtain the best price.

Court Disposition

Application granted; trustees for sale appointed with declarations as to their duties and costs orders made.

Orders

  • ['Orders 1 and 2 in the summons made.' 'Orders 4(a), (b) and (c) made.' 'New order 4(d): the costs of both parties, as assessed or agreed, other than the costs of 27 April 2000.' 'Order 4(e) made as per original 4(d) of the summons.' "The defendant is to pay the plaintiff's costs of 27 April 2000." 'Declared that...