Lewin v Lewin [2019] NSWSC 380

Lewin v Lewin [2019] NSWSC 380

The 5250 shares in Birtley Towers Ltd were property within s 66G and were held by the plaintiff and defendant as tenants in common in equal shares. Because they were presently entitled to the rights attached to the shares, including rights in respect of the Unit and dividends, their ownership was in possession and amounted to co-ownership for s 66G. With no basis advanced to refuse relief, trustees should be appointed for sale. The defendant's continued resistance to the application, including serious unfounded allegations inconsistent with her earlier acknowledgements of co-ownership, was unreasonable and caused unnecessary costs, justifying an order that half of the plaintiff's costs be...

Jurisdiction
Australia
Judgment Date
05 April 2019
Procedural Posture
Application Under Conveyancing Act 1919 (nsw), S 66 G for Appointment of Trustees for Sale / Principal Judgment on the Papers After the Defendant Did Not Oppose or Did Not Contest the Relief Sought, Save as to Costs
Outcome
Orders to be made appointing trustees for sale of the 5250 shares in Birtley Towers Ltd, with costs orders departing in part from the usual s 66G costs position.
Legal Topics
['statutory Trust for Sale' 'shares in a Home Unit Company' 'meaning of Property Under S 66 G' 'co Ownership in Possession' 'departure From Usual Costs Rule in S 66 G Proceedings']
['personal Property' 'co Ownership' 'costs'] ['statutory Trust for Sale' 'shares in a Home Unit Company' 'meaning of Property Under S 66 G' 'co Ownership in Possession' 'departure From Usual Costs Rule in S 66 G Proceedings']

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Procedural Posture

Application Under Conveyancing Act 1919 (nsw), S 66 G for Appointment of Trustees for Sale / Principal Judgment on the Papers After the Defendant Did Not Oppose or Did Not Contest the Relief Sought, Save as to Costs

Legal Issues

  1. 1 ['Whether shares in a home unit company are "property" for the purposes of Conveyancing Act 1919 (NSW), s 66G.' 'Whether the plaintiff and defendant held the shares in "co-ownership" for the purposes of s 66G.' 'Whether the ownership of the shares was "in possession" within the definition of co-ownership.' 'Whether it was appropriate to appoint trustees for sale of the 5250 shares in Birtley Towers Ltd.' "Whether the plaintiff's costs should be paid out of the defendant's share of the proceeds of sale, including on an indemnity basis."]

Ratio Decidendi

The 5250 shares in Birtley Towers Ltd were property within s 66G and were held by the plaintiff and defendant as tenants in common in equal shares. Because they were presently entitled to the rights attached to the shares, including rights in respect of the Unit and dividends, their ownership was in possession and amounted to co-ownership for s 66G. With no basis advanced to refuse relief, trustees should be appointed for sale. The defendant's continued resistance to the application, including serious unfounded allegations inconsistent with her earlier acknowledgements of co-ownership, was unreasonable and caused unnecessary costs, justifying an order that half of the plaintiff's costs be...

Court Disposition

Orders to be made appointing trustees for sale of the 5250 shares in Birtley Towers Ltd, with costs orders departing in part from the usual s 66G costs position.

Orders

  • ['The plaintiff is to file within 14 days the necessary consents to act as trustee and affidavits as to fitness to act as trustee.' 'The plaintiff is to submit proposed Short Minutes of Order to give effect to the reasons.' "Half of the plaintiff's costs are to be paid out of the proceeds of sale before distribution...