Three Co-Owners of Real Property v Another Co-owner and a Trustee in Bankruptcy [2020] NSWSC 42

Procedural Posture

Consequential Orders; Payment Out of Court / Application for Proposed Consent Orders to Pay Out Funds in Court After Compromise of Apportionment Issues

Legal Issues

1. 1 ["Whether funds in Court representing proceeds of sale of co-owned real property could be paid out by proposed consent orders agreed by the plaintiffs and the first defendant's trustee in bankruptcy but not signed by the first defendant." 'Whether the first defendant had standing to oppose the proposed consent orders after her bankruptcy.' 'Whether a tutor should be appointed for the first defendant before orders were made for payment out of the fund.']

Ratio Decidendi

The Court could make the proposed consent orders because the whole of the first defendant's estate involved in the proceedings, including any possible after-acquired property claim, was vested in the Trustee in Bankruptcy, leaving the first defendant with no standing to oppose the orders. Although the first defendant was a person under legal incapacity by reason of the NCAT financial management orders, she was not carrying on the proceedings in respect of the vested estate, so no tutor needed to be appointed before the proceedings were concluded.

Court Disposition

Orders made permitting the funds in Court to be paid out to the plaintiffs and the second defendant; orders stayed for 28 days.

Orders

• ['The monies paid into Court by the trustees for sale, being $1,764,702.88 paid on 13 June 2019 and $10,774.99 paid on 4 November 2019, totalling $1,775,477.87, may be paid out of Court and distributed as follows: first plaintiff $470,000.00; second plaintiff $470,000.00; third plaintiff $655,477.87; second...