Cusick v Savage [2008] NSWSC 212

Cusick v Savage [2008] NSWSC 212

Because the plaintiff and defendant were co-owners of the Bathurst property and the defendant's non-compliance had created an impasse preventing practical implementation of the District Court sale orders, it was appropriate for the Supreme Court to appoint trustees for sale under s 66G of the Conveyancing Act 1919. The Supreme Court, having jurisdiction under the Property (Relationships) Act 1984, could act in aid of the District Court under s 13 of that Act, and could alter the statutory trusts under s 66G(6) so the net proceeds of sale were applied to give effect to the District Court orders, since those orders adjusted interests in property rather than creating merely personal claims.

Jurisdiction
Australia
Judgment Date
13 March 2008
Procedural Posture
Proceedings by Summons Seeking Relief to Carry Into Effect District Court Consent Orders Concerning Sale of Co Owned Land, Ultimately Seeking Appointment of Trustees for Sale Under S 66 G of the Conveyancing Act 1919 / Principal Judgment; Defendant Did Not Appear; Matter Stood Over Before Final Orders So Further Matters About Appointment of Trustees and Remuneration Could Be Attended to
Outcome
The Court held that orders should be made appointing trustees for sale under s 66G of the Conveyancing Act 1919 and altering the statutory trusts so net proceeds would be applied in accordance with the District Court orders, but stood the matter over because at least two trustees or a trust corporation were required...
Legal Topics
['de Facto Relationships' 'property (relationships) Act Orders' 'co Owned Real Property' 'appointment of Trustees for Sale' 'statutory Trusts for Sale' 'supreme Court Acting in Aid of District Court']
['family Law' 'property Law' 'equity' 'civil Procedure'] ['de Facto Relationships' 'property (relationships) Act Orders' 'co Owned Real Property' 'appointment of Trustees for Sale' 'statutory Trusts for Sale' 'supreme Court Acting in Aid of District Court']

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Procedural Posture

Proceedings by Summons Seeking Relief to Carry Into Effect District Court Consent Orders Concerning Sale of Co Owned Land, Ultimately Seeking Appointment of Trustees for Sale Under S 66 G of the Conveyancing Act 1919 / Principal Judgment; Defendant Did Not Appear; Matter Stood Over Before Final Orders So Further Matters About Appointment of Trustees and Remuneration Could Be Attended to

Legal Issues

  1. 1 ["Whether the Supreme Court should appoint trustees for sale under s 66G of the Conveyancing Act 1919 where District Court orders requiring sale of jointly owned property could not practically be implemented because of the defendant's non-compliance." 'Whether the statutory trusts for sale could be altered so that the net proceeds of sale were applied in accordance with the District Court orders made under the Property (Relationships) Act 1984.' 'Whether the Supreme Court could act in aid of and be auxiliary to the District Court in matters under the Property (Relationships) Act 1984.']

Ratio Decidendi

Because the plaintiff and defendant were co-owners of the Bathurst property and the defendant's non-compliance had created an impasse preventing practical implementation of the District Court sale orders, it was appropriate for the Supreme Court to appoint trustees for sale under s 66G of the Conveyancing Act 1919. The Supreme Court, having jurisdiction under the Property (Relationships) Act 1984, could act in aid of the District Court under s 13 of that Act, and could alter the statutory trusts under s 66G(6) so the net proceeds of sale were applied to give effect to the District Court orders, since those orders adjusted interests in property rather than creating merely personal claims.

Court Disposition

The Court held that orders should be made appointing trustees for sale under s 66G of the Conveyancing Act 1919 and altering the statutory trusts so net proceeds would be applied in accordance with the District Court orders, but stood the matter over because at least two trustees or a trust corporation were required...

Orders

  • ["Matter stood over so the plaintiff could attend to the appointment of at least two trustees or a trust corporation, and to provision for trustees' remuneration." 'The appropriate orders were indicated to include appointment of trustees of the whole of the land in Folio Identifier 120/249576 under s 66G of the...