McDonald v Ellis [2018] NSWSC 278

McDonald v Ellis [2018] NSWSC 278

The appointment of a trustee for sale should be ordered because no party identified grounds for refusal, the proposed orders were appropriate, and any possible disadvantageous taxation consequences would not make it inequitable to grant s 66G relief. An adjournment was not justified because the first defendant had ample time to seek taxation rulings and the plaintiff had sought sale for more than 9 months and needed sale to address financial difficulties. The plaintiff's and second defendant's costs should be paid from the proceeds, but the first defendant should bear his own costs and pay the plaintiff's costs of the Cross Summons because his opposition and Cross Summons caused delay and...

Jurisdiction
Australia
Judgment Date
07 March 2018
Procedural Posture
Summons Seeking Appointment of a Trustee for Sale Pursuant to S 66 G of the Conveyancing Act 1919 (nsw), With Cross Summons for Partition / Principal Judgment; on the Papers
Outcome
Orders made for the appointment of a trustee for sale and costs of the proceedings; Cross Summons dismissed.
Legal Topics
['co Ownership' 'statutory Trust for Sale' 'appointment of Trustee for Sale' 'adjournment to Obtain Taxation Rulings' 'costs From Proceeds of Sale']
['land Law' 'equity' 'costs'] ['co Ownership' 'statutory Trust for Sale' 'appointment of Trustee for Sale' 'adjournment to Obtain Taxation Rulings' 'costs From Proceeds of Sale']

Case Brief

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Procedural Posture

Summons Seeking Appointment of a Trustee for Sale Pursuant to S 66 G of the Conveyancing Act 1919 (nsw), With Cross Summons for Partition / Principal Judgment; on the Papers

Legal Issues

  1. 1 ['Whether Perpetual Trustee Company Limited should be appointed trustee for sale of the co-owned property under s 66G of the Conveyancing Act 1919 (NSW).' 'Whether the proceedings should be adjourned to allow the first defendant to obtain private taxation rulings from the Australian Taxation Office and Revenue NSW.' 'Whether the costs of the plaintiff, the first defendant and the second defendant should be paid out of the net proceeds of sale.' 'Whether the Cross Summons should be dismissed and costs ordered in respect of it.']

Ratio Decidendi

The appointment of a trustee for sale should be ordered because no party identified grounds for refusal, the proposed orders were appropriate, and any possible disadvantageous taxation consequences would not make it inequitable to grant s 66G relief. An adjournment was not justified because the first defendant had ample time to seek taxation rulings and the plaintiff had sought sale for more than 9 months and needed sale to address financial difficulties. The plaintiff's and second defendant's costs should be paid from the proceeds, but the first defendant should bear his own costs and pay the plaintiff's costs of the Cross Summons because his opposition and Cross Summons caused delay and...

Court Disposition

Orders made for the appointment of a trustee for sale and costs of the proceedings; Cross Summons dismissed.

Orders

  • ['Perpetual Trustee Company Limited appointed trustee of the property known as "Tamahine" situated at 21 Baden Street, Coogee NSW, being the whole of the land comprised in Folio Identifier 8/8843 pursuant to s 66G of the Conveyancing Act 1919.' 'The land vests in the Trustee subject to encumbrances affecting the...