Dobrijevich v Burge [2001] NSWSC 1176

Dobrijevich v Burge [2001] NSWSC 1176

It was not unreasonable for the plaintiff to seek a court-appointed trustee given prior discord, but the defendant's conduct was not such as to justify making his share alone bear the trustee company's costs; the usual allocation of trustee fees from the total proceeds should stand.

Jurisdiction
Australia
Judgment Date
03 December 2001
Procedural Posture
Application by Motion Within Equity Proceedings / Post Judgment; Consideration of Distribution and Costs Following Sale Under Statutory Trust
Outcome
Plaintiff's motion to vary the statutory trust so the defendant alone bears the trustee company's costs dismissed. Costs of proceedings up to and including 16 August 2001 awarded to plaintiff; no order as to costs of the notice of motion.
Legal Topics
['partition of Land' 'statutory Trust for Sale' 'variation of Statutory Trust' 'distribution of Sale Proceeds' 'apportionment of Trustee Costs']
['real Property' 'equity'] ['partition of Land' 'statutory Trust for Sale' 'variation of Statutory Trust' 'distribution of Sale Proceeds' 'apportionment of Trustee Costs']

Case Brief

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Procedural Posture

Application by Motion Within Equity Proceedings / Post Judgment; Consideration of Distribution and Costs Following Sale Under Statutory Trust

Legal Issues

  1. 1 ["Whether the Court has power to vary the statutory trust for sale after sale of the property so that only the defendant's share of the proceeds bears the trustee company's fees" 'Whether it is appropriate to alter the trust to shift trustee costs entirely to the defendant']

Ratio Decidendi

It was not unreasonable for the plaintiff to seek a court-appointed trustee given prior discord, but the defendant's conduct was not such as to justify making his share alone bear the trustee company's costs; the usual allocation of trustee fees from the total proceeds should stand.

Court Disposition

Plaintiff's motion to vary the statutory trust so the defendant alone bears the trustee company's costs dismissed. Costs of proceedings up to and including 16 August 2001 awarded to plaintiff; no order as to costs of the notice of motion.

Orders

  • ["The plaintiff's notice of motion filed 16 November 2001 is dismissed." "The defendant must pay the plaintiff's costs of the proceedings up to and including 16 August 2001." 'No order as to the costs of the notice of motion.' "Liberty to either party to apply on twelve hours' notice for directions as to dispersal...