Fiorenza v Fiorenza

Alleged conversations giving rise to agreement

1. Matthew asserts that through various conversations, Irene represented to him that if he sold the Willoughby property and provided the proceeds to her to fund her litigation with Elie, then she would transfer the Cammeray property to him.
2. Irene denied such representations or any agreement to that effect. She asserted she was the "real" owner of the Willoughby property and, for that reason, Matthew did not resist her request that he sell the property and give her the proceeds. Further, while she contemplated giving the whole of Cammeray to Matthew, she never finally determined to do that.
3. Matthew's evidence of the agreement or representations made by Irene first concerns a conversation he alleges occurred in 2015, which Irene denies, when Irene discussed Matthew moving into Cammeray, where she is said to have said: I'm also concerned about grandma's will being contested, if you guys are living here it will help me keep the house. It's even better if you have children, just pay the rates and look after the house, it's yours anyway.
4. Matthew alleges another conversation in late 2016, which is denied by Irene: Irene: I might need help to fund the court case [concerning her mother's will], you may need to sell Willoughby so we could use the money for the court case… that's the only way you won't lose Cammeray. Mathew: That's drastic, but I'd rather have Cammeray than Willoughby. Irene: It's the only way, if not I'll have to sell Cammeray to fund the case. I don't want to lose my childhood home, I want it to stay in the family.
5. Matthew alleges another conversation with Irene in September or October 2018, which is denied by Irene: Irene: I'm concerned that Elie might come around to Cammeray and see that I'm renting rooms and your living here. Mathew: I'm not sure what you want. Irene: I can tell her that you're paying for staying here by doing maintenance here and at my home. You can come over once a fortnight. Mathew: If you think that will help, I can do that. Irene: And as soon as the court case is over I'll transfer Cammeray to you. Mathew: Ok. Irene: I need to minimise the taxes payable, so I'll transfer 10% to start with, then when I work out how to reduce the taxes, I'll transfer another 40% to you, then the rest before I die. We can put it down as "tenets in common", so if something happened to one of use, Cammeray will automatically go to the other. Mathew: I'm ok waiting til it's done, I'm living here anyway. Irene: I'm also concerned your brothers and sisters will fight you once ive passed away over Cammeray, I don't want them interfering with you and for you to go through what I did with Elie.
6. Matthew also alleges another conversation in early 2019, which Irene denies: Irene: I'm still trying to work out how to [transfer Cammeray to you] where we don't pay too much taxes Mathew: What does your accountant say? , it can't be that complicated? Irene: It's not that simple as I also don't want your brothers and sisters contesting Cammeray. Mathew: Isn't it just easier to transfer the house now.
7. In addition to the alleged conversations occurring, Matthew relies on his conduct after moving into Cammeray, in particular, making some improvements to the property. Irene does not dispute that Matthew made some improvements to the property.
8. Matthew also relies on the fact that he paid rates and council fees for Cammeray. Matthew's initial affidavit evidence was that, since moving into Cammeray in June 2016, he paid, "all the outgoings associated with Cammeray including rates, water, gas, electricity". During cross-examination, however, Matthew conceded that Irene also paid council and water rates, and that he only paid some of these outgoings. Matthew did not produce any documentary evidence demonstrating the extent of his contributions to the outgoings.

Legal arguments

1. Matthew has the onus of proving on the balance of probabilities that the reason why Irene transferred 10% of Cammeray to him was because of the oral agreement or representations that she would provide him with the whole of the property.
2. These promises or representations are pleaded as giving rise to either a promissory estoppel or a common intention constructive trust, on the basis that Matthew was induced to provide Irene with all the Willoughby proceeds, and it would be unconscionable for Irene to now resile from her promises.
3. In oral opening, Mr Corsaro, senior counsel for Matthew, raised a claim of restitution for the benefit of the proceeds of the Willoughby property obtained by Irene at the expense of Matthew. Ms Painter, senior counsel for Irene, objected to such a new claim being run without an amended pleading and without notice.
4. To the extent necessary, I refused leave to Matthew to raise a restitutionary claim for the following reasons: 1. It appears to be out of time, because the proceeds were distributed in March 2017 and the claim was first raised orally on 30 April 2024. 2. It would be procedurally unfair to Irene to allow such an amended claim, in circumstances where there is no proposed amended pleading, and any defences, including change of position, have not been explored and possibly run by Irene, including by seeking to rely on further evidence.
5. However, even if that argument were allowed to be advanced, it would still require a finding that Matthew's payment of the Willoughby proceeds to Irene was at the request of Irene and to Matthew's detriment, which in turn requires the same analysis of the alleged promises or representations made by Irene.
6. After the close of evidence, Mr Corsaro raised an argument that Matthew also relies on an unpleaded presumption of advancement in relation to the Willoughby property, which would mean that all of the proceeds were his and could be traced into Irene's new assets. However, Matthew provided those sale proceeds to Irene, and therefore it remains a question of the basis upon which he was prepared to do so.
7. Very little by way of submissions were made as to how any of these arguments were framed. In oral closing, Mr Corsaro faintly suggested that Matthew also relies on a proprietary estoppel and that it ought to be accepted that there is no material difference in the law between the elements of promissory or proprietary estoppel, which I consider below.
8. However, Mr Corsaro accepted that whichever legal framework is adopted, Matthew must persuade the Court that the reason why Irene transferred 10% of Cammeray to him was because of the oral statements Irene allegedly made to him to transfer the whole of the property because he signed over the proceeds of Willoughby to her.
9. In relation to the Willoughby property, Mr Corsaro asserted that because Irene did not seek a declaration concerning title to Willoughby being held on trust for her, the starting point was that Willoughby was Matthew's alone. I do not accept that submission. The purchase and dealings with Willoughby are relevant factual matters in the context of determining whether Matthew has made out his allegation of Irene's promises or representations. Further, Matthew's alternate relief sought is equitable compensation for the Willoughby proceeds, which Mr Corsaro accepted would only relate to the mortgage component of the purchase price, for which Matthew had originally been liable to the bank. Therefore, Mr Corsaro effectively accepted that findings concerning the Willoughby property are essential to Matthew's case.
10. For the reasons that follow, I do not consider that Matthew has discharged the onus of proof. I do not accept the conversations took place as Matthew alleges and, therefore, he must fail.

Findings as to conversations

1. I deal with each alleged conversation in turn. At the outset, I note that in circumstances where Irene denied the conversations as alleged by Matthew, it was not imperative for her to set out a competing version of conversation.
2. The first alleged conversation in 2015 is not a promise by Irene to transfer title to Cammeray and therefore does not assist Matthew. I do not consider that a statement by Irene "it's yours anyway", even if said, gives rise to any representation, upon which reliance could be placed, nor amounted to a promise. Instead, at most, I consider Irene may have been discussing at that particular time that she wanted the property to remain in the family, which was consistent with the promise she had made to her late mother. While I accept that Irene may at times have discussed leaving Cammeray to Matthew in her will, that is insufficient for Matthew to succeed.
3. In the second alleged conversation in late 2016, Irene allegedly indicated that Matthew may need to sell Willoughby to fund a settlement of the newly commenced legal proceedings with her sister. I accept that Irene would have been required to sell real estate in order to pay lawyers and her sister to settle those family provision proceedings, and Willoughby was the asset to which she was least emotionally attached. However, I do not accept Mr Corsaro's submission that Irene was "between a rock and a hard place", needing to make a sale of Willoughby in early 2017 and, for that reason, made the alleged representation to Matthew.
4. Instead, I consider that, at the time, Irene was discussing her affairs and the litigation with Matthew and others, and I accept her evidence that she decided to sell Willoughby in early 2017, because she was presented with an excellent unsolicited offer. The litigation did not settle for over 12 months after the sale of Willoughby, and therefore there was no obvious imperative to sell when Irene chose to do so.
5. I do not accept the third conversation in September or October 2018 took place as alleged by Matthew. I consider that any such conversation is unlikely to have taken place at that time, because it has Irene referring to a future settlement of the family provision litigation, which had already been settled for a few months by that time.
6. In any event, I do not accept that conversation occurred at all. Instead, I accept Irene's evidence that she transferred 10% of Cammeray to Matthew because of a "loophole" she found that would allow her to avoid paying land tax on Cammeray. Matthew, in fact, accepted in cross-examination that this was "the real reason" for the transfer.
7. I consider Matthew's evidence of the alleged conversations is a contrivance to try and explain his claim in circumstances where only 10% has been transferred to him by Irene as a gift.
8. I also make those findings based on my acceptance of Irene's denials of the conversations and my preference for her version of events and evidence over Matthew's where there is an inconsistency.
9. Matthew was an unimpressive witness. His affidavit evidence is vague and without specificity. He had no recollection of any details concerning the purchase of the Willoughby property, including the address of the property he claims he owned for six years. Another example is that he obtained the purchase and mortgage figures from Irene's evidence; he had no documentary evidence or memory of his liability to the bank, which he relies upon for his argument. He had no knowledge of whether the whole of the mortgage was drawn down or not.
10. Matthew's evidence of the alleged conversations with Irene is also vague and imprecise. He produced no documentary evidence to support the contents or occurrence of the conversations and maintains he did not contemporaneously tell anyone about them, including his first wife, who was living in Cammeray with him at the relevant times, which would seem unlikely.
11. Further, consistent with Matthew being the owner of Willoughby in name only, he had no involvement in the property at all. He accepts that, between 2011 and 2017, he received no income from the Willoughby property, that Irene received all the income, and that the income was hers to do with as she pleased. Matthew also accepted that he never took any of the income from the rent, because the Willoughby property was Irene's "retirement fund": Q. You received no income from the [Willoughby property]. It was, all the income that was available was at Irene's discretion, distributed-- A. Yes. Q. --in part to Irene, and to wherever she decided? A. Yes. … Q. And she treated the income stream from the property as her own money to do with as she wished? A. That's what I believe, yes. Q. She treated it as her own money to do with as she wished in connection to her retirement? A. That's what I believe. Q. And that was because the property was purchased by her through you for the sole purpose of her retirement; that's right, isn't it? A. Yes.
12. I do not accept Mr Corsaro's submission that Irene's evidence was that she conceded she told Matthew he could use Willoughby for future investments. Instead, her evidence was that she told Matthew Willoughby could be used for future investments, and from the context, I infer it would be used as part of her retirement funding.
13. That is also consistent with Matthew's evidence that there was no agreement about when Willoughby would be sold. Had it been Matthew's property, which is what he asserted in this litigation, then he would not have needed an agreement, and he would have sold it when he chose to. However, Matthew also gave inconsistent evidence that he assumed that, if the property was sold, the proceeds would be divided 50/50 between him and Irene because of what he considered was "fair". I consider this uncertainty in his evidence tells against his evidence of the conversations being truthful.
14. Further, Matthew had a tendency to exaggerate in his evidence to support his case, which tells against his credit. For example, in relation to the works he alleged he carried out at Cammeray, his evidence was an assertion that, "I would estimate approximately $50,000 in works and 700+ hours in time spent". However, in cross-examination, Matthew accepted he had no actual memory of how many hours he spent on the driveway. I do not accept his vague estimation of the time he spent on any of the improvements. Further, Matthew stated he only had $30,000 in receipts, but they were not included in his evidence. However, when receipts were produced and tendered, they valued at most around $9,000. However, in relation to $4,000, Irene's evidence was that she paid for that cost and she denied Matthew paid for that sum and was not challenged further. I prefer Irene's evidence.
15. In contrast, Irene was a considered witness who, albeit at times, struggled with the nature of the questions being asked and also with dates.
16. I accept Irene's evidence that she understood she could purchase Willoughby through Matthew borrowing some money to help fund the purchase and holding the property on trust for her. While she did not have any particular reason for putting the loan into Matthew's name, rather than being a co-borrower herself, I accept her evidence, that was not challenged further, that she could have put her name down as co-borrower, but that "maybe my solicitor didn't suggest it. I didn't think of it".
17. Further, while it is true that Matthew was legally liable under the mortgage to the bank before the mortgage was discharged in 2015, I accept Irene's evidence, and consider that Matthew was aware, that Irene would, in effect, indemnify Matthew entirely for the mortgage costs and all expenses related to the Willoughby property. I accept what Irene stated in cross-examination: I considered I was borrowing the money. Legally his name was there, but I considered I was borrowing the money. And the … mortgage was on my shoulders. … I would never have allowed Mathew to pay back a loan that I was responsible for.
18. Irene did, in fact, indemnify Matthew in relation to Willoughby. He never paid anything nor suffered any loss in relation to that property.
19. Consistently, at all times, Irene behaved as the true owner of Willoughby. All of the documentation for Willoughby was prepared and held by Irene. There was no dispute that all documentation concerning Willoughby was sent to Irene's home address and referred to her telephone number and email. There is no dispute that Irene managed the tenants, the rental income, the bank accounts, the business insurance, and Matthew's BAS, referable to the rental income.
20. The evidence also demonstrates that Irene made various payments for Willoughby from her credit card. Matthew assumed Irene refunded that amount from the rent, but never sought any information that would demonstrate this assumption was correct. In fact, Irene made some payments from other sources of informal income. I do not accept the challenge of Irene that she must have reimbursed herself for the property's expenses from the rental income "for tax purposes"; the way a person legitimately accounts for tax is not the same as the practical use of various sources of income.
21. Irene did not have any document created to express her intention that Matthew held the Willoughby property on trust for her. However, I accept the submission of Mr Corsaro, that the formality of commercial dealings ought not necessarily be expected in family transactions and the parties operated on a level of mutual "trust". I do not consider Irene's failure to document the arrangement is problematic for her case.
22. I also do not accept that the errors in Irene's affidavit taint all her evidence. Irene was frank with the fact that her affidavit evidence was not entirely "correct". For example, her oral evidence was that she never sought advice to transfer another 40% of Cammeray to Matthew. However, her affidavit evidence was she had obtained advice about transferring Cammeray to Matthew during her lifetime, by way of transferring 40% and naming him as a joint tenant. In cross-examination, she explained that the true position, albeit not expressed clearly in her affidavit, was that she sought advice about the difference between joint tenants and tenants in common, but she never intended to transfer 40% to Matthew. I do not accept that because Irene considered further gifts to Matthew that she was bound to do so.
23. I consider these facts support the finding of an arrangement whereby Matthew was the owner of the Willoughby property in name only. I also consider that Matthew understood that Willoughby was not his to do with what he wished, which is consistent with Matthew transferring the entirety of the proceeds of sale to Irene without question or real involvement.
24. I consider it highly unlikely that Matthew would not have retained a single document and would not have some memory of the detail of the Willoughby property, if he had considered himself the owner of Willoughby and later entered into the agreement he alleges with Irene.
25. I also do not accept Matthew's submission that the alleged agreement is supported by his time and money spent on improving Cammeray over the eight years he has lived there. I considered he overstated the work and money he invested to try and bolster his allegation of an agreement.
26. However, even taken at its highest, I do not accept this evidence unequivocally demonstrates the agreement that Matthew alleges, particularly in light of my findings above. It is more likely that these works are referable to the fact that Matthew has lived in the property with his family without ever having paid rent. This is consistent with Irene's evidence that, while Matthew lived at Cammeray with his current wife, it was a condition of his occupancy that he carry out maintenance works. The works undertaken by Matthew may also be referable to the fact that, since December 2018, Matthew has held a 10% interest in the property and so would still benefit from any increase in land value attributable to the works.
27. I also consider it highly unlikely that Irene agreed to fund most of the purchase of Willoughby and hold Matthew harmless for his involvement in that property and also transfer to him the whole of the Cammeray property.
28. In effect, that would mean that Matthew would have received Cammeray, estimated to be worth about three times that of Willoughby, in circumstances where he incurred no real cost or burden, and Irene invested her own cash of almost two-thirds of the Willoughby purchase price and her time and energy managing the property. As already noted, that seems highly unlikely.
29. Matthew gave evidence that he was told he would receive Cammeray through his mother's will, although he conceded during cross-examination that he has never seen his mother's will. I accept that Irene may have mentioned gifting Cammeray to Matthew in her will. However, that and the rest of Matthew's evidence does not persuade me that Irene made the alleged promises or representations. I reject his evidence and prefer Irene's.
30. Because of those factual findings, each of the ways Matthew frames his claim must fail. I deal with each of the ways framed other than an express agreement briefly.

Promissory estoppel

1. Matthew claims that his mother holds her 90% legal interest in the Cammeray property on trust for him. That is pleaded by reference to the principles of promissory estoppel. No claim was pleaded or opened on the basis of proprietary estoppel, although alluded to in closing oral submissions without development.
2. There is considerable uncertainty in New South Wales as to whether and if so when promissory estoppel can be used to generate positive rights not otherwise existing. As Bathurst CJ observed in Ashton v Pratt (2015) 88 NSWLR 281 at [138] (McColl JA agreeing): [T]here is a significant body of authority in this Court, as well as at least one decision of the House of Lords, which has maintained the distinction between the scope of promissory and proprietary estoppel. These cases indicate that the former only acts as a restraint on the enforcement of legal rights whilst the latter can be a source of obligation. However, it must be acknowledged that there is significant dicta contrary to this limitation on promissory estoppel.
3. The "significant body of authority" to which his Honour refers includes the decision in Saleh v Romanous (2010) 79 NSWLR 453 (Saleh), where Handley AJA noted at [73]-[74] (Giles JA and Sackville AJA agreeing): [A promissory estoppel] is not the equitable equivalent of a contract, and cannot give the purchasers positive rights to rescind and recover their deposit that they would have had if the pre-contractual promise had contractual force. A pre-contractual promissory estoppel which conferred positive rights of that nature would be contrary to Hoyt's case. A promissory estoppel is a restraint on the enforcement of rights, and thus, unlike a proprietary estoppel, it must be negative in substance. In Hughes (1877) 2 App Cas 439, Lord Cairns LC in his classic statement of principle quoted by Lord Wilberforce in Bank Negara Indonesia said (at 448): "[T]he person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties."
4. Handley AJA's remarks in Saleh have been approved on a number of subsequent occasions, including by the Court of Appeal in DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728 at [93] (Handley AJA), Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295 at [26] (Meagher JA, Basten JA and Bergin CJ in Eq agreeing) and Van Dyke v Sidhu [2013] NSWCA 198 at [39] (Barrett JA, Tobias AJA and Basten JA agreeing).
5. Ultimately, and until the aforementioned uncertainty is resolved, I consider I am bound by the decision of the Court of Appeal in Saleh, the effect of which, on lower courts, is that promissory estoppel must be viewed only as a restraint on the enforcement of rights, and negative in substance: Nock v Maddern [2018] NSWCA 239 at [35] (White JA, Leeming JA and Sackville AJA agreeing).
6. In support of the contrary view, Mr Corsaro referred me to the decision of Ward CJ in Eq (as the President then was) in CPB Contractors Pty Ltd v Rizzani De Eccher Australia Pty Ltd [2017] NSWSC 1798. In that case, her Honour allowed a claim for promissory estoppel notwithstanding the decision in Saleh. However, her Honour did so in circumstances where promissory estoppel had been raised in relation to the exercise of a contractual power, "in the context of the rights and responsibilities established by the parties pre-existing contractual arrangements" (at [342]). As her Honour noted at [343]: This is not, therefore, a case in which a party is attempting to raise a promissory estoppel so as to acquire some positive right to relief in equity independent of a postulated contract. If the promissory estoppel is successfully asserted, this Court would not be creating a contract for the parties; rather, RdE would be bound in conscience from denying that it stands in the postulated legal relationship - namely, that envisioned by the JV Deed, (to which, I emphasise, both CDP and RdE were a party) upon due exercise of the JV Board's powers in accordance with cl 5.4.
7. Here, there are no pre-existing contractual arrangements between Matthew and Irene, which envisaged Irene holding the Cammeray property on trust for Matthew, or which specified the terms of such a trust. In those circumstances, to uphold Matthew's promissory estoppel claim would involve something akin to creating a contract for the parties. I therefore do not consider Matthew can rely on promissory estoppel to establish rights in the Cammeray property.
8. Mr Corsaro also referred me to a later decision of Antov v Bokan [2018] NSWSC 1474. However, I do not consider that this decision and the statements of principle contained therein take Matthew's case any further.
9. Assuming, contrary to the above, that promissory estoppel is available as an argument for Matthew, he claims to have satisfied the conditions stated by Brennan J at 428-429 in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387: In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
10. In circumstances where I do not accept there was an agreement or representations by Irene of the sort alleged by Matthew, she cannot have induced him to adopt a particular assumption upon which he could reasonably have relied.
11. However, even if Matthew satisfied Brennan J's conditions (1) through to (4), I do not accept that Matthew has suffered a relevant detriment to be compensated in equity. He was the owner of Willoughby in name only and, on the evidence, Irene has satisfied me that Matthew held the legal title on trust for her. Further, I do not accept that Matthew spending time and money improving Cammeray was a relevant detriment, where he is a 10% owner and was living in the property without paying rent.
12. The same outcome would befall a case advanced as one based on proprietary estoppel.

Common intention constructive trust

1. There is some doubt as to whether common intention constructive trust survives in Australia as an independent cause of action, distinct from estoppel: see Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336 at [116]-[119] (Leeming JA). However, no submissions were made on this point, and I will proceed on the assumption that such a cause of action continues to exist.
2. The relevant principles relating to establishing a common intention constructive trust were stated concisely by Ward CJ in Eq in Bassett v Cameron [2021] NSWSC 207 at [563]-[565] and cited approvingly by Basten AJA in Galati v Deans [2023] NSWCA 13 at [148]: The so-called common intention constructive trust, arises in the circumstances described by White J … in Shepherd v Doolan [2005] NSWSC 42 … at [31], namely where equity intervenes "to prevent the unconscientious denial by the legal owner of another party's rights … where the parties agreed, or it was their common intention, that the claimant should have an interest in the property owned by the other, and the claimant acted to his or her detriment on the basis of that agreement or common intention". It is not necessary for a common intention constructive trust that the common intention is that the parties have a specific share of the property; it is sufficient that they intend that the claimant should have a beneficial interest or "some form of proprietary interest" …. A less stringent test to the question of detriment has been said to apply once the common intention has been established - see Shepherd v Doolan at [40], where his Honour noted that, in Green v Green (1989) 17 NSWLR 343 at 357 Gleeson CJ (with whom Priestley JA agreed) approved the test appearing in the judgment of Sir Nicolas Browne-Wilkinson VC in Grant v Edwards [1986] Ch 638 at 657 that: "… [O]nce it has been shown that there was a common intention that the claimant should have an interest in the house, any act done by her to her detriment relating to the joint lives of the parties is, in my judgment, sufficient detriment to qualify. The acts do not have to be inherently referable to the house … The holding out to the claimant that she had a beneficial interest in the house is an act of such a nature as to be part of the inducement to her to do the acts relied on. Accordingly, in the absence of evidence to the contrary, the right inference is that the claimant acted in reliance on such holding out and the burden lies on the legal owner to show that she did not do so." [citations omitted] Moreover, a common intention constructive trust may arise after the acquisition of the property in question if the evidence establishes that the relevant common intention was formed at some later time. The nature of the common intention may also change from time to time but that change will not be established merely from proof of proportionate changes in the contributions made by the parties.
3. For the reasons above, in relation to the alleged agreement and estoppel, I am not satisfied that at any time the parties held a common intention that Matthew would have an interest in the Cammeray property beyond the 10% he was gifted by Irene. I also do not accept that Matthew acted in reliance of any alleged common intention for the same reasons as above.

Section 66G principles

1. Section 66G(1) of the Conveyancing Act 1919 (NSW) reads: Where any property (other than chattels) is held in co-ownership the court may, on the application of any one or more of the co-owners, appoint trustees of the property and vest the same in such trustees, subject to incumbrances affecting the entirety, but free from incumbrances affecting any undivided shares, to be held by them on the statutory trust for sale or on the statutory trust for partition.
2. There is no doubt here that the parties are co-owners as defined in s 66F(1) of the Conveyancing Act, being tenants in common.
3. The principles which apply on an application under s 66G are well established. They were recently summarised by White JA (Bell P and Basten JA agreeing) in Foundas v Arambatzis [2020] NSWCA 47 at [63] as follows: 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. An order may be refused if the appointment of trustees for sale would be inconsistent with a proprietary right, or the applicant for the order is acting in breach of contract or fiduciary duty, or is estopped from seeking or obtaining the order (Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068 at 1068; Ngatoa v Ford (1990) 19 NSWLR 72 at 77; Williams v Legg (1993) 29 NSWLR 687 at 693; Hogan v Baseden (1997) 8 BPR 15,723 at 15,726-15,727; Tory v Tory at [42]). Hardship or general unfairness is not a sufficient ground for declining relief under s 66G (Hogan v Baseden (1997) 8 BPR 15,723 at 723; Ferella v Official Trustee in Bankruptcy at [36]-[40]).
4. Because of the findings made, Matthew has not established any reason which points against the form of orders being sought being made. There is no basis for a finding that it would be inequitable to order the sale.

Contributions or adjustments?

1. Each of the parties may have been entitled to contribution for money expended on rates: see eg Forgeard v Shanahan (1994) 35 NSWLR 206 (Forgeard) at 224 (Meagher JA; Mahoney JA agreeing). However, neither party sought such an order for contribution.
2. Further, no allowance will be made for a co-owner who has carried out repairs and maintenance: see eg Forgeard at 224, citing Leigh v Dickeson (1884) 15 QBD 60.
3. Matthew did not seek an order for the value of the improvements he had made to the property. Had he sought such an order, then Irene may have been entitled to seek an offset of a nominal sum for occupation rent: see eg Callow v Rupchev [2009] NSWCA 148 at [30] (Beazley and Basten JJA and Handley AJA).
4. In the circumstances, I will not make any adjustments to the parties' interests by reason of contributions or improvements or occupation rent.

Trustees

1. Irene has, in compliance with s 66G(3)(a) of the Conveyancing Act, nominated two individual trustees.
2. The nominated trustees are registered liquidators Jason Lloyd Porter and Joshua Lee Robb, who are directors of SV Partners and charge $680 per hour plus GST each.
3. The appointment of trustees for the purposes of s 66G is a matter of the Court's discretion: Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151 at [88] (Young CJ in Eq). Some of the relevant considerations which inform the exercise of that discretion were summarised by Young CJ in Eq in Arrow Custodians Pty Limited v Pine Forests of Australia Pty Ltd [2006] NSWSC 341 at [21], which are not in issue here.
4. Both trustees have consented to an appointment. Matthew does not challenge that they are fit and proper persons to act as trustees. Similarly, no challenge is taken to their experience, and I consider they are appropriately qualified to conduct the sale. It is also likely that persons without their experience could equally have been proposed and saved the parties' costs, in circumstances where the trustees' duties here are limited to the sale of a residential property.
5. It is appropriate in some cases for the Court to impose a cap in the first instance on the costs to be incurred by the trustees, and give the trustees liberty to apply to increase that cap: see eg McLaughlin v Cunningham [2023] NSWSC 350 at [150] (Peden J). I consider this is an appropriate case in which to cap the trustees' fees at $5,000 plus GST in the first instance, as there is no evidence that they will be required to do anything more than engage and then instruct a real estate agent and an appropriate person for the conveyancing. However, I will grant the trustees liberty to apply for matters concerning their roles as trustees and for the sale process.

Conclusion and appropriate orders

1. I note that Leah Fiorenza, Matthew's current wife, has been served with the summons and evidence and attended the Court hearing. She is therefore aware of the proceedings, and for that reason, I will make the order sought by Irene that she deliver up possession of the Cammeray property to the trustees in addition to Matthew, and within 28 days of today's date.
2. Irene seeks an order that Matthew pay her costs from his portion of the proceeds of sale. No submission was made against that order, and I consider it appropriate in circumstances where Matthew has failed wholly in his case.
3. For those reasons, I consider it appropriate to make the following orders: 1. An order that Jason Lloyd Porter and Joshua-Lee Robb be appointed as trustees for sale of the land situated at 69 Amherst Street Cammeray in the state of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier 26/6678 (the Property). 2. An order that the Property be vested in such trustees subject to any encumbrances affecting the entirety of the Property but free from encumbrances (if any) affecting any undivided share or shares therein to be held by the said trustees upon Statutory Trustees for Sale under Division 6 of Part 4 of the Conveyancing Act 1919. 3. An order that either of the parties is entitled to purchase the Property whether at auction or otherwise without payment of a deposit. 4. An order that either of the parties is entitled to purchase the Property whether at auction or otherwise by setting of that party's entitlement to the proceeds against the money bid or offered. 5. An order that the Statutory Trustees for Sale be entitled to remuneration up to $5000 plus GST, and to deduct or otherwise retain such monies pending approval together with such fair and reasonable expenses associated with their appointment from the proceeds of sale. 6. In order that the Statutory Trustees for Sale be authorised to engage the services of such real estate agents, Australian legal practitioner or Licensed Conveyancer, as they consider appropriate in the circumstances for the purposes of assisting them in relation to the performance of their duties in respect of the sale of the Property. 7. An order that the Statutory Trustees for Sale pay the proceeds of sale of the Property as follows: 1. Council rates, water rates, any statutory duties and charges; 2. Real estate agent's commission and charges; 3. the Statutory Trustees for Sale remuneration costs and expenses as contemplated in order 5 above, and including fair and reasonable costs of an Australian legal practitioner or licensed conveyancer retained as contemplated by order 6 above; 4. as to the balance of monies held as between the Plaintiff as to 9/l0th and the Defendant as to 1/10th, save that the Plaintiff's costs of the proceedings as agreed or assessed are to be deducted from the Defendant's proportion and paid to the Plaintiff. 1. An order that the Defendant and his wife, Ms Leah Fiorenza, deliver up possession of the Property to the Statutory Trustees for Sale within 28 days of these orders. 2. An order that in default of possession of the Property not being delivered up to the Statutory Trustees for Sale, then upon production to the Registrar of an affidavit confirming that fact, a Writ of Possession issue in respect of the Property. 3. An order that the Statutory Trustees for Sale have general liberty to apply. 4. Cross-claim dismissed.

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