Segal v Barel (No 2) [2013] NSWCA 148

Segal v Barel (No 2) [2013] NSWCA 148

The outcome at first instance should have been for sale as sought by the appellant. The proper analogy is with dissolution of a partnership; thus, both parties' costs at first instance are to be paid out of the sale proceeds, and the appellant is to recover their costs of the appeal from the respondent.

Jurisdiction
Australia
Judgment Date
12 June 2013
Procedural Posture
Appeal / Judgment After Appeal
Outcome
Appeal allowed; orders below set aside and new orders substituted for sale and distribution of property and costs.
Legal Topics
['co Ownership' 'statutory Trust for Sale' 'partition Versus Sale' 'costs']
['property Law'] ['co Ownership' 'statutory Trust for Sale' 'partition Versus Sale' 'costs']

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Procedural Posture

Appeal / Judgment After Appeal

Legal Issues

  1. 1 ['Whether the co-owned land should be sold or partitioned' 'How the proceeds of sale should be distributed' "How the parties' costs at first instance should be borne"]

Ratio Decidendi

The outcome at first instance should have been for sale as sought by the appellant. The proper analogy is with dissolution of a partnership; thus, both parties' costs at first instance are to be paid out of the sale proceeds, and the appellant is to recover their costs of the appeal from the respondent.

Court Disposition

Appeal allowed; orders below set aside and new orders substituted for sale and distribution of property and costs.

Orders

  • ['Appeal allowed.' 'Orders (1), (2), and (3) of 2 November 2012 set aside.' 'Appointment of trustees and statutory trust for sale of property at XXXX Street, North Bondi as per s 66G Conveyancing Act 1919.' "Order (7) of 2 November 2012 varied: substitute 'upon termination of the co-ownership of the property.'"...