Haley v Perkins (No 2) [2011] NSWSC 597

Haley v Perkins (No 2) [2011] NSWSC 597

More than eight months had passed since the earlier orders, the Defendant was aware of those orders, the Plaintiff had complied with her obligations, and the Defendant had failed or omitted to pay or tender $50,000. The court therefore exercised its powers under s 38 of the Property (Relationships) Act 1984 and s 70(1) and (2) of the Trustee Act 1925 to appoint Henry Kazar as trustee for sale and make consequential orders.

Jurisdiction
Australia
Judgment Date
29 June 2011
Procedural Posture
Application for Appointment of Trustee for Sale / Post Judgment Application Following Defendant's Failure or Omission to Comply With Orders Made in Substantive Proceedings
Outcome
Application granted; Henry Kazar appointed as trustee for sale of the Property, consequential sale and distribution orders made, Defendant ordered to pay the Plaintiff's costs of the application, and most orders stayed for 28 days.
Legal Topics
['appointment of Trustee for Sale' 'property (relationships) Act 1984' 'sale of Jointly Held Property' 'enforcement of Court Orders' 'distribution of Sale Proceeds']
['property Law' 'trusts' 'civil Procedure'] ['appointment of Trustee for Sale' 'property (relationships) Act 1984' 'sale of Jointly Held Property' 'enforcement of Court Orders' 'distribution of Sale Proceeds']

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Procedural Posture

Application for Appointment of Trustee for Sale / Post Judgment Application Following Defendant's Failure or Omission to Comply With Orders Made in Substantive Proceedings

Legal Issues

  1. 1 ['Whether a trustee for sale should be appointed after the Defendant failed or omitted to comply with earlier orders requiring payment of $50,000 to the Plaintiff in exchange for transfer of her interest in the Property.' 'Whether the court had power under the Property (Relationships) Act 1984 and the Trustee Act 1925 to appoint a trustee and make consequential orders for sale and distribution of proceeds.']

Ratio Decidendi

More than eight months had passed since the earlier orders, the Defendant was aware of those orders, the Plaintiff had complied with her obligations, and the Defendant had failed or omitted to pay or tender $50,000. The court therefore exercised its powers under s 38 of the Property (Relationships) Act 1984 and s 70(1) and (2) of the Trustee Act 1925 to appoint Henry Kazar as trustee for sale and make consequential orders.

Court Disposition

Application granted; Henry Kazar appointed as trustee for sale of the Property, consequential sale and distribution orders made, Defendant ordered to pay the Plaintiff's costs of the application, and most orders stayed for 28 days.

Orders

  • ['Pursuant to s 38(1)(g) of the Property Relationships Act 1984 and s 70(1) and (2) of the Trustee Act 1925, Henry Kazar was appointed as Trustee for the sale of the Property comprised in Certificate of Title Folio Identifier ### together with all improvements erected thereon and being the property known as...