Robert Colin White v Nicole Maree White [2021] NSWSC 484 (26 April 2021)

Last Updated: 6 May 2021

Supreme Court New South Wales

Case Name:	Robert Colin White v Nicole Maree White
Medium Neutral Citation:	[2021] NSWSC 484
Hearing Date(s):	24, 25 March, 16 and 26 April 2021
Date of Orders:	26 April 2021
Decision Date:	26 April 2021
Jurisdiction:	Equity
Before:	Rein J
Decision:	1. An order that Roy Hanna and Omar Khan as Trustees for sale of the property located at 128 Duri Road, Hillvue, New South Wales, 2340, being the land comprised in Folio Identifier 17/240820 (“the Property”) be given possession of the Property. 2. Leave for the issue forthwith of a Writ of Possession for the Property in the form of the document annexed to the Short Minutes of Order handed up by the Trustees and marked “A”. 3. An order pursuant to Section 114(2) of the Civil Procedure Act 2005 (NSW) for the Sheriff to secure entry onto the Property in favour of the Trustees for sale. 4. An order that the costs of and associated with the Motion filed on 4 March 2021 be paid to the Plaintiff (in addition to the costs order made on 8 December 2020) on an indemnity basis from the net proceeds of the sale of the Property due to the First Defendant.
Catchwords:	LAND LAW – Co-ownership – Statutory trust for sale – Application by trustee for possession of property – One co-owner failing to respond to notices to vacate issued by the trustees seeking possession of the property to effect its sale – Whether the co-owner in possession of the property is entitled to remain in the property until its sale – Whether the trustee is entitled to a writ of possession to effect a sale of the property
Legislation Cited:	Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW)
Cases Cited:	Abbott v Pegler (1980) 1 BPR 9267 Application of Richard Albarran; Harb v Harb [2010] NSWSC 1251
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Robert Colin White (Plaintiff/Applicant on the Amended Notice of Motion) Roy Hanna and Omar Khan (Court Appointed Trustees/Applicant on the Amended Notice of Motion) Nicole Maree White (First Defendant/Respondent on the Notice of Motion) Westpac Banking Corporation (Second Defendant)
Representation:	Counsel: Ms K Boettcher (Plaintiff and Trustees) Solicitors: Brydens Lawyers (Plaintiffs and Trustees)
File Number(s):	2020/214888
Publication Restriction:	Nil

EX TEMPORE JUDGMENT

1. On 9 December 2020, Messrs Roy Hanna and Omar Khan (“The Trustees”), were appointed by an order of Rees J of this Court, trustees for sale of a property at Hillvue (“the Property”) of which the Defendant, Nicole Maree White (“Nicole”), is the registered owner. This is an application by the Trustees for possession of the Property. The appointment of the Trustees was in the following terms:

“4. Pursuant to section 66G of the Conveyancing Act 1919 (NSW):

(a) Order that the property at 128 Duri Road, Hillvue NSW 2340 (the “Hillvue Property”) be sold.
(b) Appoint Roy Hanna and Omar Khan, solicitors, as trustees for the sale of the Hillvue Property.

5. Order that, following the sale of the Hillvue Property and after payment of any rates, taxes and costs of sale, the trustees distribute the net proceeds of sale as follows:

a. First, to the second defendant, Westpac Banking Corporation, in discharge of registered mortgage AM886228.
b. Second, to the plaintiff in discharge of unregistered mortgage dated 30 March 2017, comprising:

i. $246,896.72 owing under the Loan Agreement; and
ii. $25,500 in costs and expenses, pursuant to Clause 5 of Memorandum No. Q860000.

c. Third, any remaining funds to the first defendant.”

2. The orders were made on 9 December 2020.
3. The order for the appointment of the Trustees followed on from the entry of default judgment in favour of the Plaintiff against Nicole in the sum of $246,896.72, together with an order that Nicole pay the Plaintiff $25,500 in a lump sum for his costs.
4. On 15 December 2020, Mr Hanna caused a letter to be sent via Express Post to Nicole, requesting that she vacate the Property by no later than 8 January 2021. Nicole did not respond to that request, nor did she vacate the Property by 8 January 2021.
5. On 3 February 2021, Nicole was personally served with a further notice to vacate the Property, which notice was dated 3 February 2021. At this time, Nicole was also personally served with a copy of the letter dated 15 December 2020. Nicole did not respond to that notice, nor did she vacate the Property. Accordingly, on 1 March 2021, the Plaintiff filed a notice of motion seeking, inter alia, leave to issue a writ for possession of the Property. An Amended Notice of Motion was filed on 4 March 2021 rectifying the wording of the orders sought, which included specifying a property to which the writ for possession was to be issued, and joining the Trustees as applicants on the motion, as the Trustees have been appointed by this Court to sell the Property. They are the parties to whom any writ for possession should be granted.
6. The notice of motion was first listed before Ward CJ in Eq and her Honour made the following orders:

“1. List the notice of motion filed 4 March 2021 for hearing before Rein J on 24 March 2021 at 10.30 am with an estimate of half an hour.
2. Direct that the plaintiff forward to Rein J's Associate all relevant materials for that matter.
3. Direct that the plaintiff notify the defendant of the listing.”

7. In compliance with Order 3 of her Honour's Orders, on 23 March 2021, Mr Hanna caused a letter to be placed in the post box at the Property, notifying Nicole of the listing before me on 24 March 2021. Nicole did not respond to that letter and she did not attend at the hearing before me on 24 March 2021, which was a hearing fixed to be held by AVL. When the matter first came before me on 24 March 2021, I raised a concern that the evidence did not establish that any attempt had been made to obtain Nicole's cooperation in relation to putting the property on the market which would enable inspections by a real estate agent, organising repairs and arranging inspections by prospective buyers. I also raised the question of whether the Trustees were entitled to require Nicole to vacate the premises in the absence of any evidence of obstruction. Ms Boettcher, Counsel for the Trustees and Plaintiff, sought time to research these issues, and I granted an adjournment to provide her that opportunity. I did make an order that the Trustees were to notify Nicole that the matter had been stood over to 25 March 2021. On 25 March 2021, the matter was stood over to 1 April 2021, and the 1 April 2021 date was later adjourned to 16 April 2021 at the request of the Trustees.
8. On 16 April 2021, I made orders that copies of all the affidavits and submissions received from Ms Boettcher in this matter, and the proposed orders, be served on Nicole by 19 April 2021 so that Nicole would have a full set of the documents that have been advanced as part of the evidence and the written submissions by Ms Boettcher. I also made an order that the Trustees were to notify Nicole of the adjournment to today’s date and to provide Nicole with the AVL link details. The affidavit of Mr Hanna filed on 19 April 2021 attests to Nicole having been served with these documents. Annexure B to that affidavit is a receipt from Australia Post which establishes that the documents that are Annexure A to Mr Hanna's affidavit were delivered to the Defendant's address on 19 April 2021 at 2:10 pm. I am satisfied that Nicole has been served with the relevant documents for the hearings on 24 March 2021 and again for today, and that she has chosen not to attend by AVL to oppose the application which is sought by the Trustees.
9. The present situation is not one of a judgment creditor seeking possession, but rather one in which the Court has appointed trustees for sale. The Trustees have requested that Nicole leave the premises so that they can do all that is required to put the Property on the market, which includes making the Property available for inspection by prospective purchasers, conducting repairs to the Property as required and having a valuation conducted to guide the Trustees in their sale of the Property. A real estate agent retained by the Trustees, Ms Vicky Cooper of Tamworth Property & Co, subsequently left her card at the Property, asking the Defendant to call her. Neither the Plaintiff, nor the Trustees, have a phone number for Nicole; nor do they have an email address. Ms Cooper has visited the Property on three occasions between 6 and 9 April 2021, and there was no response when she knocked on the door: see Affidavit of Mr Hanna sworn 14 April 2021, at [4].
10. The affidavits, which have been filed and which were included in the material sent to Nicole on 19 April 2021, include affidavits of Roy Hanna of 4 March 2021, 23 March 2021, 24 March 2021, 14 April 2021 and 16 April 2021. In my view, the evidence, taken as a whole, makes it likely that there will be no cooperation from Nicole and that there will be difficulties in arranging inspections of the type that I have mentioned. The Trustees have formed the view that the sale is likely to be seriously impeded if Nicole is to remain in the Property prior to the sale and I accept that there is a proper basis for that concern.
11. In the Application of Richard Albarran; Harb v Harb [2010] NSWSC 1251, a case to which Ms Boettcher has drawn my attention, Brereton J (as his Honour then was) referred to a number of cases, and said at [19]:

“These cases demonstrate that, after trustees have been appointed pursuant to s 66G for sale of the property, the rights of the beneficial owners of the property become a right to have the trust for sale performed and to share in the proceeds of sale in accordance with their beneficial interests. They no longer have a beneficial interest in the real property itself.”

12. One of the cases mentioned by Brereton J was a decision of Powell J (as his Honour then was) in Abbott v Pegler (1980) 1 BPR 9267, in which his Honour said:

“As to the first, it is, in my view, clear that, upon the trustees becoming registered as the proprietors of the subject land, they took title free from any estate, interest or right which might thitherto have entitled Mr Abbott to occupy or remain in possession of the land MacDiarmid v MacDiarmid (1956) 74 WN (NSW) 170) and the rights of Mr Abbott became, instead, a right to have the trustees execute the statutory trust and, if the property were sold, a right to receive his rightful share in the proceeds — indeed, the more correct view may be that, since the order itself operated as a conversion as from the date of the order (Conveyancing Act 1919 s 66G (7)(b)) Mr Abbott thereafter had no estate, interest or right to occupy or remain in possession of the subject land (Burgess v Booth [1908] UKLawRpCh 114; [1908] 2 Ch 648) even though the title to the subject land did not vest in the trustees until registration of the order.”

13. I therefore proceed on the basis that on the appointment of the Trustees, Nicole no longer had any common interest or right to occupy or remain in possession of the Property. It follows that the Trustees were entitled to require Nicole to vacate the premises. Even if that is not so, Nicole has had adequate notice of the proceedings to obtain possession and has chosen not to take part in them, and has not put forward any alternate plan for the Plaintiff to obtain the moneys due to him under the judgment and costs order of this Court or advance any basis upon which she is entitled to remain in possession of the Property.
14. In light of the matters to which I have referred, I am persuaded that the Trustees should be given possession of the Property.
15. In relation to the costs of this application, the Trustees seek and I direct that the Trustees' costs shall be paid out of Nicole's share of the proceeds of sale. I make orders in accordance with the Short Minutes of Order which I shall initial in the top right hand corner and date with today's date (noting that the annexure to those orders is the writ of possession marked Annexure A), which I shall put with the papers.

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