Rima Abood v Chakib Carlo Gabrielle [2022] NSWSC 912

Rima Abood v Chakib Carlo Gabrielle [2022] NSWSC 912

The plaintiff was a registered co-owner of the Property and the first defendant, having served no evidence and failed to plead or prosecute his cross-claim as directed, established no proprietary right, contract, fiduciary duty, estoppel or other equitable basis to refuse an order under s 66G(1). The $134,000 drawn from the joint account was taken entirely for the first defendant's benefit, so that amount plus attributed interest was to be adjusted in the plaintiff's favour from the sale proceeds.

Jurisdiction
Australia
Judgment Date
08 July 2022
Procedural Posture
Application Under S 66 G(1) of the Conveyancing Act 1919 (nsw) for Appointment of Trustees for Sale of Co Owned Real Property / Principal Judgment After Hearing
Outcome
Orders made appointing trustees for sale; first defendant's cross-summons dismissed.
Legal Topics
['co Ownership' 'statutory Trust for Sale' 'appointment of Trustees for Sale' 'adjournment' 'costs' 'adjustment of Sale Proceeds' 'caveats']
['real Property' 'equity' 'civil Procedure' 'bankruptcy'] ['co Ownership' 'statutory Trust for Sale' 'appointment of Trustees for Sale' 'adjournment' 'costs' 'adjustment of Sale Proceeds' 'caveats']

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Procedural Posture

Application Under S 66 G(1) of the Conveyancing Act 1919 (nsw) for Appointment of Trustees for Sale of Co Owned Real Property / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether trustees should be appointed under s 66G(1) of the Conveyancing Act 1919 (NSW) for sale of the Property.' 'Whether the first defendant established any proprietary right, contract, fiduciary duty or estoppel making it inequitable to order sale.' "Whether the hearing should be adjourned despite the first defendant's failure to serve evidence or plead his cross-claim as directed." 'Whether the first defendant should bear responsibility for $134,000 drawn from the joint account and interest attributed to that drawdown.' 'How costs and net sale proceeds should be dealt with.']

Ratio Decidendi

The plaintiff was a registered co-owner of the Property and the first defendant, having served no evidence and failed to plead or prosecute his cross-claim as directed, established no proprietary right, contract, fiduciary duty, estoppel or other equitable basis to refuse an order under s 66G(1). The $134,000 drawn from the joint account was taken entirely for the first defendant's benefit, so that amount plus attributed interest was to be adjusted in the plaintiff's favour from the sale proceeds.

Court Disposition

Orders made appointing trustees for sale; first defendant's cross-summons dismissed.

Orders

  • ['Sean Magnus Wengel and Michael Craig Brereton, both of William Buck of Level 29, 66 Goulburn Street, Sydney, are appointed trustees of the Property situated at 7 Jellicoe Street, Condell Park NSW, being the whole of the land contained in folio identifier 151/8700, pursuant to section 66G(1) of the Conveyancing Act...