Angius v Salier; Angius v Angius [2017] NSWSC 198

Angius v Salier; Angius v Angius [2017] NSWSC 198

Although the trustees' statement that s 66H 'entitles' them to consult misstated the statutory duty, the plaintiff's offers did not require further consultation because they clearly communicated his position. However, the trustees' lack of response reasonably contributed to misunderstanding by the plaintiff and his lawyers, and the balance of convenience justified giving the plaintiff a final, strictly timetabled opportunity to pursue s 66I relief while remaining in possession; therefore the writ of possession was stayed on undertakings and directions were made to progress the s 66I application promptly.

Jurisdiction
Australia
Judgment Date
07 March 2017
Procedural Posture
Equity Proceedings Concerning Trustees for Sale and Writ of Possession / Motion for Stay of Writ of Possession and Directions for Proposed Conveyancing Act S 66 I Relief
Outcome
Stay granted on terms. Costs reserved.
Legal Topics
['conveyancing Act 1919 Ss 66 G, 66 H and 66 I' 'stay of Writ of Possession' 'consultation by Trustees for Sale' 'sale of Co Owned Property' 'variation of Directions for Sale']
['equity' 'property Law' 'trustees for Sale' 'civil Procedure'] ['conveyancing Act 1919 Ss 66 G, 66 H and 66 I' 'stay of Writ of Possession' 'consultation by Trustees for Sale' 'sale of Co Owned Property' 'variation of Directions for Sale']

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Procedural Posture

Equity Proceedings Concerning Trustees for Sale and Writ of Possession / Motion for Stay of Writ of Possession and Directions for Proposed Conveyancing Act S 66 I Relief

Legal Issues

  1. 1 ['Whether execution of the writ for possession should be stayed on the motion of the occupying co-owner.' 'Whether the trustees for sale failed to consult with the occupying co-owner under Conveyancing Act 1919 s 66H.' 'Whether the plaintiff should be given a further opportunity to pursue relief under Conveyancing Act 1919 s 66I while remaining in possession of the property.']

Ratio Decidendi

Although the trustees' statement that s 66H 'entitles' them to consult misstated the statutory duty, the plaintiff's offers did not require further consultation because they clearly communicated his position. However, the trustees' lack of response reasonably contributed to misunderstanding by the plaintiff and his lawyers, and the balance of convenience justified giving the plaintiff a final, strictly timetabled opportunity to pursue s 66I relief while remaining in possession; therefore the writ of possession was stayed on undertakings and directions were made to progress the s 66I application promptly.

Court Disposition

Stay granted on terms. Costs reserved.

Orders

  • ["Note the plaintiff by his counsel gives the usual undertaking as to damages, secured over the plaintiff's interest in the property at 2 Denning Street Coogee." "Note the plaintiff by his counsel gives a further undertaking to do all things necessary on the plaintiff's part to bring prayers for relief (2) and (3)...