Scott v O'Riley [2006] NSWSC 1081

Scott v O'Riley [2006] NSWSC 1081

Because the defendant's non-cooperation and refusal to instruct Mr Crumpton made it no longer possible for Mr Crumpton to continue as trustee for sale and prevented the consent orders from being carried out as contemplated, it was appropriate to remove Mr Crumpton, appoint Mr Hayward in his place, require the defendant to give vacant possession, restrain interference with the sale, and order indemnity costs assessed at $16,000.

Jurisdiction
Australia
Judgment Date
13 October 2006
Procedural Posture
Application Concerning Trustees for Sale Under Section 66 G Conveyancing Act 1919 / Ex Tempore Judgment on Amended Notice of Motion After Consent Orders Appointing Trustees for Sale
Outcome
One trustee for sale removed, an alternative trustee appointed, and the defendant ordered to give vacant possession, not interfere with the sale, and pay indemnity costs assessed at $16,000.
Legal Topics
['appointment of Trustees for Sale' 'removal and Substitution of Trustee for Sale' 'tenants in Common' 'non Cooperation With Sale Orders' 'indemnity Costs']
['conveyancing' 'property Law' 'equity'] ['appointment of Trustees for Sale' 'removal and Substitution of Trustee for Sale' 'tenants in Common' 'non Cooperation With Sale Orders' 'indemnity Costs']

Case Brief

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Procedural Posture

Application Concerning Trustees for Sale Under Section 66 G Conveyancing Act 1919 / Ex Tempore Judgment on Amended Notice of Motion After Consent Orders Appointing Trustees for Sale

Legal Issues

  1. 1 ['Whether a trustee for sale who could no longer continue to act should be removed and an alternative trustee appointed.' 'Whether the defendant should be ordered to give vacant possession and restrained from interfering with the sale.' 'Whether the defendant should pay costs occasioned by frustrating the carrying through of the orders made on 26 April 2006.']

Ratio Decidendi

Because the defendant's non-cooperation and refusal to instruct Mr Crumpton made it no longer possible for Mr Crumpton to continue as trustee for sale and prevented the consent orders from being carried out as contemplated, it was appropriate to remove Mr Crumpton, appoint Mr Hayward in his place, require the defendant to give vacant possession, restrain interference with the sale, and order indemnity costs assessed at $16,000.

Court Disposition

One trustee for sale removed, an alternative trustee appointed, and the defendant ordered to give vacant possession, not interfere with the sale, and pay indemnity costs assessed at $16,000.

Orders

  • ['Orders 1 to 7 inclusive in the Amended Notice of Motion filed 9 October 2006 were made.' 'The defendant is to give vacant possession of the property to the trustee no later than 17 November 2006.' 'Orders 9, 10, and 11 in the Amended Notice of Motion filed 9 October 2006 were made, including orders that the...