Moore v Lukic

File Number(s): 2025/00206482

Publication restriction: Nil

JUDGMENT

1. The plaintiffs are the two children of the defendant, their father. Together they are the co-owners of a property at Chester Road, Ingleburn (the Property).

2. The Property is owned as to a one quarter share by each of the plaintiffs and a half share by the defendant. The plaintiffs inherited their share on the passing of their mother (the former wife of the defendant) in 2009. The defendant has resided in the Property since 2009. By summons filed on 29 May 2025, the plaintiffs seek orders pursuant to s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the Property.

3. The parties are now agreed that the trustees for sale should be appointed. Each has proposed competing short minutes. Only two substantive issues divide the parties – the time for the defendant to provide vacant possession and, more substantially, what costs order should be made.

4. These reasons resolve the remaining issues.

Time to vacate

5. The plaintiffs seek orders for vacant possession within 60 days. The defendant seeks 90 days.

6. The defendant has lived in the Property since his former wife’s death and more recently the plaintiffs’ Uncle Deny and his partner Petra have resided in the Property. The defendant is 70 years of age, has health problems, no significant financial resources other than his share in the Property and works only two days a week doing menial work.

7. Given the time of year and the need for all occupants to find alternate accommodation, I propose to allow 90 days to vacate. It was not suggested that this would cause any prejudice to the plaintiffs.

Order 7

8. The defendant sought the insertion of the words “reasonable requests” after “Trustees” in proposed order 7. No reason was given for this insertion although I assume it was to make clear that the defendant does not have to agree to everything the Trustees require. I have no difficulty including the requested words. They simply confirm, in my view, what is required.

Costs

9. The primary case advanced by the plaintiff was an order that the defendant pay the plaintiffs’ costs of the proceedings from the defendant’s half share of the proceeds in the sum of $19,000. Alternatively, rather than the gross sum, an order was sought that they be paid on the ordinary basis.

10. The defendant’s primary contention was that there should be no order as to costs to the intent that each party is to pay his or her own costs of the proceedings. Alternatively, an order was sought that the costs be paid out of the net proceeds and before distribution of the net proceeds to the parties.

11. The plaintiffs rely on the history of the matter in support of their position on costs.

12. The topic of selling the Property was first raised in February 2024. A proposal to sell the Property was made by the defendant in August 2024. A response was provided by the plaintiffs dated 30 September 2024. The parties were not able to agree to the terms of sale.

13. Further correspondence was exchanged in early 2025. On 8 April 2025, the plaintiffs’ solicitor sent a draft summons to the defendant’s solicitor. The solicitor promptly responded that they were no longer acting for the defendant and they had forwarded the letter to the new solicitor.

14. No response was received from the defendant’s new solicitor prior to the commencement of the proceedings.

15. On 4 July 2025, orders were made.

16. Thereafter, a summons was filed by the defendant seeking family provision relief. On 15 August 2025, I ordered that both proceedings be listed before me on 12 September 2025.

17. On 12 September 2025, I made orders by consent progressing the family provision proceedings. Both proceedings were adjourned to 14 November 2025.

18. On 14 November 2025, counsel for the plaintiffs pressed for these proceedings to be determined. I indicated on that occasion that I could not see how the family provision proceedings provided a reason for the s 66G orders not to be made. I stood the proceedings over for two weeks to enable the defendant to consider the final orders proposed by the plaintiffs.

19. On 28 November 2025, new counsel had been retained for the defendant and he sought a short indulgence for one week to consider the position. I granted the indulgence and ordered the defendant to pay the plaintiffs’ costs of the appearance on 28 November 2025.

20. On 5 December 2025, I made directions for brief submissions to be provided on the remaining issues which has now occurred.

21. There is no dispute as to the relevant principles as to costs. Those principles are neatly encapsulated by Williams J in Eva Joy Ambrus v Lee Ellen Buchanan (No 2) [2023] NSWSC 5 at [4]-[6]:

[4] The Court has a discretion under s 98 of the Civil Procedure Act 2005 (NSW) to make an order for costs determining by whom, to whom and to what extent costs are to be paid. In proceedings under s 66G of the Conveyancing Act, that discretion is usually exercised by ordering that the parties’ costs to be paid out of the proceeds of sale of the land, the rationale being that the costs of the proceedings are an incident of joint ownership: Kardos v Sarbutt (No. 2) [2006] NSWCA 206 at [28] (Brereton J (as his Honour then was), Basten JA and Hunt AJA agreeing); Chow v Chow (No 2) (2015) 18 BPR 35,385; [2015] NSWSC 1348 at [7]-[8] (Young AJA); Chetwynd v Rose [2021] NSWCA 193 at [120] (White JA, Meagher and Leeming JJA agreeing).

[5] The usual rule generally extends to the costs of an unsuccessful defendant who has properly advanced substantial arguments in support of an estoppel or contractual or fiduciary obligation which may have afforded a good reason to decline to appoint trustees for sale, although the arguments ultimately failed: Stone v Stone (2014) 17 BPR 33,443; [2014] NSWSC 1655 at [51]-[52] (Darke J); Norris v Norris [2021] NSWSC 1676 at [25]-[26] (Robb J).

[6] However, unreasonable conduct on the part of a party that results in costs being incurred unnecessarily may warrant a departure from the usual rule. As Darke J explained in Stibbard*-Leaver v Leaver* [2021] NSWSC 65 at [5]:

“I observe at this point that in litigation of this type under s 66G of the Conveyancing Act, it is usual to order that the costs of the proceedings be paid out of the proceeds of sale. The rationale for this approach is that the costs of such an application are an incident of joint ownership (see Kardos v Sarbutt (No 2) [2006] NSWCA 206 at [28]). It remains the case of course that unreasonable conduct by a party may be a basis to conclude that some other order is appropriate in a s 66G case. Lewin v Lewin [2019] NSWSC 380 is an example. In that case, it was held that certain unreasonable conduct led to an unnecessary incurring of costs. However, as I noted in that case (at [41]), a co-owner is ordinarily under no obligation to seek to avoid a need to bring a s 66G application (see also Chow v Chow (No 2) [2015] NSWSC 1348 at [12] where it was stated by Young AJA that co-owners have no obligation to negotiate their dissolution).”

22. In the present case, I do not regard the defendant’s conduct as warranting a departure from the usual order for costs in s 66G proceedings.

23. Prior to the commencement of proceedings, the parties were not able to agree terms. The fact that the plaintiffs served a draft summons on the defendant and sought to avoid proceedings does not provide a basis for a departure. A co-owner is under no obligation to avoid court proceedings.

24. Since the commencement of proceedings the only unreasonable conduct on the defendant’s part was on 28 November 2025 when a further indulgence was sought. I made a costs order against the defendant on that occasion. That order stands.

25. Otherwise, the defendant has commenced family provision proceedings which he sought to have determined along with these proceedings. That is no longer occurring. The costs incurred in those proceedings should be dealt with in those proceedings.

26. I do not regard the defendant’s attempts to have these proceedings dealt with at the same time as the family provision proceedings as providing a basis for a departure from the usual position, let alone leading to an order that the defendant pay the plaintiffs’ costs of the entire proceedings. The position was short lived and was no doubt propounded in good faith.

Conclusion

27. In the result, the orders to be made are those proposed by the defendant, with order 9 deleted, the orders thereafter renumbered and the previously numbered order 10 amended to remove the introductory words.

28. The orders are as follows:

29. An order pursuant to section 66G of the Conveyancing Act 1919 (NSW) that Daniel Soire and Bruce Gleeson of Jones Partners be appointed as trustees (Trustees) in respect of the property known as X Chester Road, Ingleburn NSW 2565 being the whole of the parcel of land contained in Folio Identifier X/X (Property) on the statutory trust for sale.

30. An order that the Property be vested in the said Trustees for sale, subject to encumbrances affecting the entirety of the Property but free from encumbrances affecting any undivided shares of the Property, to be held by them on the statutory trust for sale in accordance with section 66G of the Conveyancing Act 1919 (NSW).

31. Subject to further order of the Court, the said Trustees are, from the proceeds of sale of the Property, to pay:

(a) all expenses of the sale including pertinent agents’, valuers’ and conveyancing fees; then (b) their usual fees and disbursements; then (c) from the net proceeds of sale, to pay one half to the defendant and the other one half into the Trust Account of the solicitor for the plaintiffs, pending further Orders in proceedings no. 2025/00306987.

4. An order that the Trustees be granted vacant possession of the Property, and that the occupants of the Property vacate the Property within 90 days after the making of these orders.
5. An order that the Trustees have leave to issue a writ of possession of the Property forthwith, but such writ not to be executed until 90 days after the making of these orders.
6. An order that the Trustees be authorised to engage agents/third parties to assist in the sale of the Property, including but not limited to real estate agents, solicitors and valuers.
7. Notes that, during the 90-day period before vacant possession, the defendant will cooperate with the Trustees’ reasonable requests and give reasonable access to the Trustees, on three business days’ notice, in order to facilitate preparing the Property for sale.
8. An order that the defendant’s Notice of Motion filed 12 August 2025 be dismissed with no orders as to costs.
9. The parties’ costs of the proceedings calculated on the ordinary basis as agreed by the Trustees for sale or assessed be paid out of the net proceeds of sale of the Property after the payment ordered in 3(b) above but before the payments ordered in 3(c) above.
10. Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing these orders.
11. An order that the summons filed 29 May 2025 be otherwise dismissed.

**********