Capolingua v Da Silva (No 2) [2017] NSWSC 527

Capolingua v Da Silva (No 2) [2017] NSWSC 527

The Court is satisfied that, following the adjourned period, the plaintiff's interest in the property has now been marketed conscientiously and with all due diligence for a period of one year, as required by clause 5(b) of the Deed, such that the pre-condition for the appointment of trustees for sale under s 66G is now satisfied. Disclosure by the selling agent of relevant matters did not breach the standard required; recent property damage does not preclude the appointment of trustees given trustees can address sale timing and presentation. Trustees for sale should therefore be appointed.

Parties
Plaintiff: Nick Jason Carl Capolingua; Defendant: Janine Da Silva
Jurisdiction
Australia
Judgment Date
04 May 2017
Procedural Posture
Equity—application for Appointment of Trustees for Sale / Final Judgment on Application Following Further Evidence; Determination and Orders
Outcome
Application granted; trustees for sale appointed; cross-claim dismissed; directions made for costs submissions.
Legal Topics
Appointment of Trustees for Sale, Sales by Court Order or Direction, Contractual Pre Conditions for Sale
Equity Conveyancing Appointment of Trustees for Sale Sales by Court Order or Direction Contractual Pre Conditions for Sale

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Parties

Nick Jason Carl Capolingua

Plaintiff

Janine Da Silva

Defendant

Procedural Posture

Equity—application for Appointment of Trustees for Sale / Final Judgment on Application Following Further Evidence; Determination and Orders

Legal Issues

  1. 1 Whether the plaintiff has now satisfied the contractual pre-conditions (clause 5(b) of the Deed) for appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW)
  2. 2 Whether recent damage to the property ought to bar the appointment of trustees for sale

Ratio Decidendi

The Court is satisfied that, following the adjourned period, the plaintiff's interest in the property has now been marketed conscientiously and with all due diligence for a period of one year, as required by clause 5(b) of the Deed, such that the pre-condition for the appointment of trustees for sale under s 66G is now satisfied. Disclosure by the selling agent of relevant matters did not breach the standard required; recent property damage does not preclude the appointment of trustees given trustees can address sale timing and presentation. Trustees for sale should therefore be appointed.

Court Disposition

Application granted; trustees for sale appointed; cross-claim dismissed; directions made for costs submissions.

Orders

  • Trustees for sale of the property are appointed pursuant to s 66G of the Conveyancing Act 1919 (NSW).
  • Trustees to distribute net proceeds of sale in accordance with agreed formula per clause 3.8 of the Deed as referenced in Joint Supplementary Submissions.