Albarran v Eaton Investments (Aust) Pty Ltd

Legislation Cited: Conveyancing Act 1919 (NSW), ss 66G, 66F
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Foundas v Arambatzis [2020] NSWCA 47
Taylor v Papantoniou [2024] NSWSC 1192

Texts Cited: Nil

Category: Principal judgment

Parties: Richard Albarran (First Plaintiff)
Brent Kijurina (Second Plaintiff)
Eaton Investments (Aust) Pty Ltd (Defendant)

Representation: Counsel:
Michael Collins (Plaintiffs)
Solicitors:
Dentons (Plaintiffs)
Spectrum Legal Group (Defendant)

File Number(s): 2025/00467096

Publication restriction: Nil

JUDGMENT

1. The plaintiffs are the receivers (Receivers) of the property of Brian Allan Seymour (Mr Seymour) including his interest in the property known as xx Fishing Point Road, Fishing Point, NSW (Folio Identifier xx/xx) (Property).

2. The Property is owned by Mr Seymour and the defendant, Eaton Investments (Aust) Pty Ltd (Eaton) as tenants in common each with a half share. Mr Seymour is the sole director and shareholder of Eaton.

3. By Summons filed 2 December 2025, the Receivers seek to be appointed as trustees for the sale of the Property pursuant to s 66G of the Conveyancing Act 1919 (NSW) (CA).

4. Prior the commencement of these proceedings, the Receivers requested that Eaton confirm whether it would purchase Mr Seymour’s interest in the Property or otherwise consent to a sale of the Property, failing which the Receivers would bring proceedings seeking an order pursuant to s 66G. There was no response to this correspondence.

5. Eaton has now filed an appearance in the proceedings and recently Eaton’s solicitors confirmed in writing that “their clients” (which appears to include Mr Seymour) do not oppose the relief sought in the Summons.

6. In light of this position, the Receivers have requested that I deal with the matter on the papers.

7. In support of the Summons, the Receivers rely upon an affidavit of Brent Kijurina of 1 December 2025 and exhibit BK-1 to that affidavit. Mr Kijurina is one of the plaintiffs and one of the proposed trustees. Richard Albarran and Mr Kijurina have each filed affidavits of fitness and consents to act.

8. I have also had the benefit of written submissions prepared by Michael Collins of counsel dated 6 March 2026.

9. The evidence comfortably establishes that Mr Seymour’s interest in the Property falls within the scope of the Receivers’ appointment. Mr Seymour had previously guaranteed a loan to a company of which he was a director.

10. There was no issue that Mr Seymour and Eaton are co-owners. The principles guiding the exercise of discretion under s 66G are also well settled. It is clear that although an order under s 66G is discretionary, such an order is almost as of right, unless on settled principles, it would be inequitable to make the order: see, for example, Foundas v Arambatzis [2020] NSWCA 47 at [63] per White JA (with whom Bell P and Basten JA agreed).

11. There is nothing in the circumstances of the present case that would make it inequitable to appoint trustees for sale.

12. The only issue in the present case concerns whether, as the proceedings are presently constituted, there is power for the Court to make the orders sought. Section 66G(1) of the CA provides that the Court may “on the application of any one or more of the co-owners” appoint trustees for sale. In the present case, the plaintiffs are the receivers in their personal capacity, and are not suing in the name of Mr Seymour.

13. The authorities in this regard were examined by Peden J in Taylor v Papantoniou [2024] NSWSC 1192 (Taylor).

14. Having reviewed the position in relation to a receiver, and the rights which a receiver has, or does not have, Peden J concluded at [23] that the Court lacked jurisdiction to make orders under s 66G for the sale of the properties as sought by the receiver, because the receiver in that case is not a “co-owner” within the meaning of s 66G(1) and 66F(1) of the CA. The receiver was not an owner at law or in equity in possession of the properties in question in that case. Nor, was the receiver an “incumbrancer of the interest of a joint tenant or tenant in common” of the two properties.

15. The position of the Receivers in the present case is, in my view, relevantly indistinguishable from the position of the receiver considered by Peden J in Taylor.

16. In Taylor, Peden J, having determined that the Court lacked jurisdiction to make orders under s 66G as sought by the plaintiff/receiver, stated at [24]:

However, because all the defendants seek, or do not oppose, a trustee sale pursuant to s 66G, and the defendants satisfy the definition of “co-owner”, for the following reasons I consider it appropriate to make orders for a trustee sale, rather than requiring the defendants to bring a new application.

17. In Taylor, it was clear that at least one of the defendants/co-owners actively sought the s 66G orders.

18. In the present case, the position of the co-owners appears to be that they do not oppose the orders sought. This raises the question, whether such non-opposition is sufficient to satisfy the requirement in s 66G(1) that the application for judicial sale made be “of any one or more of the co-owners”. I incline to the view that Eaton’s express non-opposition (and, it would seem, Mr Seymour’s implied non-opposition) does not satisfy the jurisdictional requirement in s 66G(1) that one or more of the co-owners apply for the judicial sale. In this respect, the facts of the present case are distinguishable from that considered by Peden J in Taylor.

19. Any concern as to whether the Court has jurisdiction can readily be cured in the circumstances of the present case. The Receivers, pursuant to their powers of appointment, have authority to commence and prosecute proceedings in Mr Seymour’s name. Mr Seymour should thus be joined as a third plaintiff to the proceedings.

20. There are no discretionary reasons as to why the Court would not make the orders sought. Further, nothing has been suggested as to any lack of fitness or capacity on the part of the Receivers to be appointed as trustees. They are clearly appropriate persons to be appointed. Like Peden J in Taylor at [38]-[41], I do not consider that any conflict arises merely because a receiver of a co-owner is also appointed as a trustee for sale under s 66G.

21. For these reasons, it is appropriate for orders to be made joining Mr Seymour as a third plaintiff, and to otherwise make the orders sought in the Summons.

Orders

22. The Court makes the following orders:

23. Declares that the First and Second Plaintiffs have standing to commence this proceeding in the name of Brian Allan Seymour.

24. Order under rule 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) that Brian Allan Seymour be joined as the third plaintiff to these proceedings.

25. Order that any requirement to file or serve an amended summons be dispensed with.

26. Pursuant to section 66G of the Conveyancing Act 1919 (NSW) (the Act) as applied by section 79 of the Judiciary Act 1903 (Cth):

(a) Richard Albarran of Level 40, 2 Park Street, Sydney NSW 2000; and (b) Brent Kijurina of Level 40, 2 Park Street, Sydney NSW 2000;

(together, the Trustees) be appointed as trustees for sale of the whole of the property contained in folio identifier xx/xxx being the property situated at and known as xx Fishing Point Road, Fishing Point in the State of New South Wales (Property).

5. The Property be vested in the Trustees subject to any encumbrances affecting the entirety of the Property, to be held by the Trustees on statutory trust for sale under Division 6 of Part IV of the Act.
6. The Trustees be entitled to charge their remuneration at the rates set out in the schedule attached to their Consent to Act filed in these proceedings.
7. The Trustees be empowered to sell the Property by public auction or by private treaty, as the Trustees deem appropriate.
8. The Trustees be empowered to appoint agents, valuers, solicitors and/or conveyancers, as they deem appropriate, to act in respect of the marketing and sale of the Property.
9. The Property be sold by the Trustees in such manner and on such terms as the Court may in these orders and from time to time direct, but except to the extent of such direction, as the Trustees see fit.
10. An order that the Trustees distribute the proceeds of sale of the Property in the following manner:

(a) first, in payment of all expenses reasonably incurred by the Trustees in relation to the sale of the Property (including in relation to the protection and maintenance of the Property); (b) second, in payment of all statutory levies, rates and charges payable on settlement of the sale of the Property; (c) third, in payment of the reasonable remuneration of the Trustees incurred in acting as Trustees for sale of the Property; (d) fourth, to the First and Second Plaintiffs in payment of their professional and legal costs incurred in these proceedings (as set out in order 11 below); (e) fifth, in payment of any other encumbrances of the Property in order of their priority and in accordance with their terms; and (f) sixth, as to any money remaining after deduction of the amounts set out in order 10(a)-10(e) above, then half of the money remaining to be paid to each of:

(i) subject to order 10(g) below, to the First and Second Plaintiffs jointly; and (ii) the Defendant.

(g) seventh, in payment of the debt owed to BPE Loans 2 Pty Ltd secured by caveat AVxx;

11. The First and Second Plaintiffs’ costs of this application be paid by the Defendant on an indemnity basis.

12. The Trustees be at liberty to apply for directions on 3 days’ notice setting out the relief sought.

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