Rovere v Rovere [2023] NSWSC 1410

Rovere v Rovere [2023] NSWSC 1410

The trustees had acted reasonably, diligently and honestly in selling the property, addressing the defendant's complaints, engaging solicitors and bringing the motion. The defendant's objections to individual time entries and broader allegations of misconduct were not made out. Because the further costs since 1 September 2021 were occasioned by the defendant's conduct and not by the plaintiffs, those costs were properly payable from the defendant's share of the proceeds. The reasonable capped amount of $63,372.22 was approved for deduction from the defendant's remaining share of $235,992.69, with the balance payable to him and the trustees discharged.

Jurisdiction
Australia
Judgment Date
21 November 2023
Procedural Posture
Consequential Orders Concerning Trustees for Sale Under Conveyancing Act 1919, S 66 G / Trustees' Notice of Motion Dated 19 May 2023 for Approval of Remuneration, Payment of Remaining Sale Proceeds and Discharge From Appointment
Outcome
Trustees' remuneration approved; further costs ordered to be deducted from the defendant's share of sale proceeds; trustees discharged after payment to the defendant; liberty to apply granted for 14 days.
Legal Topics
['co Ownership' 'statutory Trust for Sale' 'trustees for Sale' 'trustee Remuneration' 'trustee Indemnity and Reimbursement' 'costs Borne by Beneficiary Share' 'discharge of Trustees']
['land Law' 'equity' 'trusts' 'civil Procedure'] ['co Ownership' 'statutory Trust for Sale' 'trustees for Sale' 'trustee Remuneration' 'trustee Indemnity and Reimbursement' 'costs Borne by Beneficiary Share' 'discharge of Trustees']

Case Brief

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Procedural Posture

Consequential Orders Concerning Trustees for Sale Under Conveyancing Act 1919, S 66 G / Trustees' Notice of Motion Dated 19 May 2023 for Approval of Remuneration, Payment of Remaining Sale Proceeds and Discharge From Appointment

Legal Issues

  1. 1 ["Whether the trustees' remuneration, costs and disbursements incurred in selling the Coffs Harbour property and dealing with the defendant's complaints were reasonable and should be approved." "Whether the trustees' further costs incurred since 1 September 2021 should be deducted from the defendant's share of the proceeds of sale rather than borne by all beneficiaries." "Whether the defendant's allegations about the trustees' time entries and conduct of the sale justified refusing or reducing the trustees' remuneration or costs." 'Whether the trustees should be discharged from their appointment as trustees for sale.']

Ratio Decidendi

The trustees had acted reasonably, diligently and honestly in selling the property, addressing the defendant's complaints, engaging solicitors and bringing the motion. The defendant's objections to individual time entries and broader allegations of misconduct were not made out. Because the further costs since 1 September 2021 were occasioned by the defendant's conduct and not by the plaintiffs, those costs were properly payable from the defendant's share of the proceeds. The reasonable capped amount of $63,372.22 was approved for deduction from the defendant's remaining share of $235,992.69, with the balance payable to him and the trustees discharged.

Court Disposition

Trustees' remuneration approved; further costs ordered to be deducted from the defendant's share of sale proceeds; trustees discharged after payment to the defendant; liberty to apply granted for 14 days.

Orders

  • ["The trustees, Messrs David Kerr and Tim Gumbleton, in their capacity as trustees for sale of the land at Coffs Harbour, who now hold the balance of the proceeds of sale of the property in the sum of $235,992.69, are directed to pay and disburse the said proceeds of sale by payment to themselves of $63,372.22 in...