Determination
9In the circumstances, over 8 months having passed since my orders were made, and there being evidence that the Defendant is aware of the orders, it appears that, now, there is no choice but to appoint a trustee for sale. The Plaintiff appears to have complied with her obligations set out in the orders that I made. The Defendant has not. He has failed, or omitted, to pay, or tender, to the Plaintiff the sum of $50,000.
10There is power to grant the relief now sought by the Plaintiff given to the court by s 38 of the Property (Relationships) Act 1984. That section sets out the types of orders that may be made, including, as now called in aid, the appointment of trustees (sub-s (1)(g)), the transfer of property (sub-s (1)(a)), the production of documents of title (sub-s (1)(c)) and the sale of property with distribution of the proceeds of sale in default of the order for payment of money not being satisfied (sub-s. 1(b)). Sub-section (j1) permits the court to make an order in the absence of a party.
(The power in that section to appoint trustees extends to appointing an individual trustee ( Interpretation Act 1987, s 8): Dyson v Holden [2010] NSWSC 1494 at [22].)
Section 38(2) provides, also, that the court may make any order, or grant any remedy or relief which it is empowered to make or grant under any other Act. As pointed out also in Dyson v Holden , there is power under s 70(1) and (2) of the Trustee Act 1925 for the court to appoint a new trustee, even where there is no existing trustee, whenever it is expedient to do so, and it would be inexpedient and impractical to do so without the assistance of the court.
11For the reasons I have given, and in the light of the evidence that I have read, I consider that this application ought not to have been necessary. I order that the Defendant is to pay the Plaintiff's costs of this application.
12I make the following orders:
(a) Order pursuant to s 38(1)(g) of the Property Relationships Act 1984 and s 70(1) and (2) of the Trustee Act 1925 that Henry Kazar be appointed as Trustee for the sale of the Property comprised in Certificate of Title Folio Identifier ### together with all improvements erected thereon and being the property known as "Bimbimbie" ("the Property").
(b) Order that the Property be vested in the Trustee subject to any encumbrances affecting the entirety thereof to be held by the Trustee upon trust for sale.
(c) Order that the trustee have power to take, or obtain, possession of the Property in order to give vacant possession to a purchaser.
(d) Order that the Defendant deliver to the Trustee all the documents of title within his possession for the Property within fourteen (14) days from the date of service of these Orders upon him.
(e) Grant leave, under s 66I of the Conveyancing Act 1919, for the Defendant to bid for, or buy, the Property setting off, or accounting, for the purchase money instead of paying the same so far as appropriate and taking into account the payments required to be made.
(f) Order that the Trustee, on completion of the sale, shall distribute the proceeds of sale of the Property in the following manner:
(i) In payment and discharge of all mortgages and other encumbrances registered on the title to the Property;
(ii) In payment of the Trustee's commission and costs for time in attendance up to completion of the sale;
(iii) In payment of the other costs of sale including, but not limited to, legal costs, advertising costs and agent's commission;
(iv) In payment of expenses, if any, incurred by the Trustee for the purpose of bringing the Property up to a condition which would facilitate sale;
(v) In payment of all rates, taxes and insurance and other outgoings on the Property;
(vi) In payment of $50,000, together with interest accrued thereon, calculated at the rates prescribed by s 101 of the Civil Procedure Act 2005 on unpaid judgments from 27 October 2010 to the date of payment to the Plaintiff;
(vii) In payment of the Plaintiff's costs of the proceedings and of this application; and, if those costs have not been agreed upon, or assessed, then the Trustee should retain no less than the Plaintiff's solicitor's reasonable estimate of those costs, calculated on the ordinary basis until such time as the costs have been agreed upon or assessed;
(viii) The payment of the balance to the Defendant, in the event that he is not the purchaser.
(g) Order that the Trustee shall be at liberty to execute any and all necessary conveyance, or other documents, and to do all such things as are necessary to enable the compliance with, and the performance of, these Orders.
(h) Grant the parties, and the Trustee, liberty to restore on seven (7) days notice, to obtain such further, or other relief, to enable effect to be given to these Orders or the discharge thereof.
(i) These orders shall be entered forthwith with the inclusion of the Folio Identifier reference, which has been omitted from these reasons for judgment.
13Because the Defendant did not appear at the hearing when the matter was re-listed, and because I retain the hope that it will not be necessary for the Property to be sold by a trustee, rather than by the parties, or not at all, I shall stay the orders (with the exception of (i) above), for 28 days, upon the basis that the Plaintiff's solicitor should serve the Defendant with a copy of this Judgment and the orders, by letter sent to the Defendant by registered post no later than 7 days from today.