Abdalla v Jarvis J Pty Ltd (No 2)

I delivered my primary judgment in these proceedings on 22 September 2025: see Abdalla v Jarvis J Pty Ltd [2025] NSWSC 1084 (Primary Judgment or PJ).

Declaration of respective interests

7. There was no issue that a declaration should be made that Anthony Hanna holds a half interest in the Land for Mr Abdalla.

Who should be appointed trustee?

8. The parties were agreed that an independent lawyer should be appointed trustee for sale. Mr Abdalla proposed Min Du. Anthony Hanna proposed a regime for the parties to agree on an independent lawyer, failing which one should be appointed by the Registrar-General. The only objection raised to Min Du was the fees she proposed to charge.

9. Min Du made an affidavit consenting to being appointed and stating that she proposed to charge a fee of $660 per hour and estimated that “such sale would cost in the order of $10,000 to $25,000”. It is this last aspect which appears to have raised the concern for Anthony Hanna.

10. I see no reason not to appoint Min Du. The objection as to costs can be easily dealt with. I will authorise costs to be charged at $660 per hour and direct Min Du to provide 14 days written notice to Mr Abdalla and Anthony Hanna of the fees proposed to be deducted from the proceeds of sale on account of trustee’s fees. If there is any issue with the proposed fees, liberty to apply can be exercised. Costs of trustees are in the discretion of the Court: see Anson v Anson (2004) 12 BPR 22,303; [2004] NSWSC 766 at [75]-[78] per Campbell J; James v James (No 2) [2019] NSWSC 116 at [40]-[45] per Slattery J.

Reserve Price

11. The parties disagreed as to the reserve price that should be set. Mr Abdalla said $825,000 and Anthony Hanna $850,000.

12. I do not propose to set a reserve. This is a matter for the trustee, conscious of the duties imposed.

Payment of sale proceeds

13. There were two disputes.

14. First, whether Mr Abdalla should receive half of the sale proceeds before the Commonwealth Bank’s indebtedness is paid out.

15. Second, whether an allowance of $212,000 should be made in Anthony Hanna’s favour, representing the money which he provided to his mother as recorded in the PJ.

16. As to the first of these matters, I did not understand the orders proposed by Mr Abdalla to contend that he should be paid before the Commonwealth Bank is paid but rather that Mr Abdalla should not bear the cost of discharging the mortgage, such that Mr Abdalla should have credit for half the costs of discharging the mortgage.

17. As set out at PJ [59] and [68], the parties agreed that I should defer for later consideration, if Mr Abdalla was otherwise successful in his contention that Anthony Hanna held a half interest in the Land on behalf of Mr Abdalla and that the Land should be sold, the quantum of equitable compensation to be paid to Mr Abdalla from the proceeds of sale.

18. In the circumstances, I do not propose to determine, at this stage, the competing contentions as to credits. I will order the balance of the proceeds of sale after the payment of encumbrances and expenses to be paid into Court and will then determine, if agreement cannot be reached, the division of the proceeds.

Costs

19. There was no dispute as to costs – Anthony Hanna should pay Mr Abdalla’s costs as assessed or agreed.

Conclusion and orders

20. For the reasons set out above, the Court makes the following orders:

21. Declare that the second defendant, Anthony Hanna, holds a half interest in the land comprised in folio identifier SP17/93648 on trust for Hedra Abdalla (the Property).

22. Order the Property be sold by Min Du (solicitor of Du & Associates) subject to the supervision of the Court, and that the Property vest in Min Du as trustee for Hanna and Abdalla for the purpose of the sale, subject to all existing encumbrances.

23. Order that Min Du be authorised to charge for all work done at the rate of $660 per hour (plus GST).

24. Order that upon the Property vesting that Min Du hold the Property subject to the duties and obligations of a registered mortgagee exercising a power of sale.

25. Order Min Du have conduct of the sale of the Property by public auction or, if not sold at auction, by private sale.

26. Order Min Du to determine whether the Property is sold with vacant possession or with the current residential tenancy.

27. Order Hanna to deliver up to Min Du within 7 days the current residential tenancy agreement.

28. Order Min Du have the discretion to terminate the current residential tenancy agreement and to enforce the termination.

29. Order Min Du to pay the proceeds of sale in the following order:

(a) payment of all encumbrances including to the Commonwealth Bank of Australia to discharge the first mortgage. (b) payment of the agent’s commission and advertising expenses for the sale. (c) payment of fees and disbursements of Du & Associates having first given the parties 14 days’ written notice of the quantum of the fees to be deducted together with an itemised invoice. (d) the remainder into Court.

10. Direct Min Du to collect, on trust for Hanna and Abdalla, the rent earned from the Property and to pay all outgoings from the rent collected and mortgage instalments which fall due for payment after the making of these orders.
11. Direct Min Du to inform the solicitors for Abdalla and Hanna as to the mode of sale and terms of sale.
12. Liberty to Min Du and the parties, to apply for orders and directions on three days’ written notice regarding the quantum of the proposed trustee’s fees to be deducted, together with an itemised invoice.
13. Grant liberty to the Commonwealth Bank of Australia to apply to take over the conduct of the sale.
14. Hanna is to pay Abdalla’s costs as agreed or assessed.
15. List the proceedings for directions on 6 March 2026.

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