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JUDGMENT (ex tempore revised from transcript)

1. These proceedings were commenced ex parte before the Duty Judge on 15 May 2026 by the filing of a summons, together with an affidavit in support. The relief sought in the summons is an order pursuant to s 66G(1) of the Conveyancing Act 1919 (NSW), appointing trustees for sale of a property located at Edmondson Park, New South Wales (the Property).

2. There is no dispute that the plaintiff and the defendant are co-owners as to 50% each in the Property. Unfortunately, this is another case arising out of the breakdown of a domestic relationship between the parties.

3. As I understand it, the proceedings were commenced before the Duty Judge, in circumstances where the Property is subject to a mortgage in favour of the Commonwealth Bank of Australia (CBA) which is in the names of both the plaintiff and the defendant. Mortgage repayments have not been made for some months. In those circumstances, the plaintiff was concerned that the CBA would, after a period of forbearance which was indicated in the evidence, take steps to foreclose on the loan and sell the Property. The plaintiff’s concern, understandably, was that if this occurred, the property may be sold for less than might otherwise be achieved by the parties through an orderly sale, rather than a mortgagee sale.

4. This is against a background on the evidence of the parties having previously agreed, earlier this year, for the Property to be put to the market for sale. The evidence discloses that the plaintiff unilaterally terminated the arrangements in relation to that sale.

5. The proceedings were returnable before Williams J as Duty Judge on 19 May 2026. The defendant, Ms Nguyen, appeared for herself on that occasion. On that occasion, Williams J made the following orders:

6. Direct that the defendant is to file and serve any evidence upon which she wishes to rely on opposing the summons by 10 June 2026.

7. List the matter in the real Property list for directions on 12 June 2026.

8. Grant liberty to apply to the parties on two days’ notice specifying the relief sought.

9. On 5 June 2026, Ms Nguyen emailed the chambers of Williams J requesting additional time to obtain legal advice and assistance in preparing her evidence so as to ensure that it was properly prepared and presented to the Court. She sought an extension of 14 days, or such other period as the Court considered appropriate.

10. On 9 June 2026, the chambers of Williams J responded to both parties to the effect that this was a matter that should be raised with me today, as the Real Property List Judge.

11. When the matter was called on this morning, Ms Nguyen handed up to me an affidavit that she had made herself dated 11 June 2026. The affidavit runs to 51 paragraphs, and there are a number of documents that are referred to in the affidavit which are exhibited to it. The exhibit runs to 76 pages.

12. I have carefully considered all of the material contained in that affidavit, together with the detailed submissions made by Ms Nguyen in support of her position.

13. It is not necessary to descend into any great detail as to the matters disclosed in the affidavit. It is clear that Ms Nguyen is currently residing in the Property, and has done so for some time, together with her two children. Ms Nguyen, understandably, deposes to the fact that she would prefer to remain in the Property if she is able to and would prefer to buy out the plaintiff’s interest in the Property if that is able to be achieved. The evidence discloses also that there have been a number of attempts, it seems to me, to seek to agree to terms, but no agreement has yet been reached. Ms Nguyen seeks more time to see if an agreement can be reached and sought the assistance of Legal Aid to arrange a mediation which may occur in 6 to 8 weeks.

14. As I have sought to explain to Ms Nguyen this afternoon, the law in relation to s 66G is clear. It is well established that the grounds on which the Court would ordinarily decline to make an order under s 66G are limited. Those grounds include where the order would be inconsistent with a proprietary right, a contractual or fiduciary obligation, or an equitable or conventional estoppel against the application. There is no general jurisdiction to refuse to grant an order under s 66G on the basis of hardship or unfairness. It is for this reason that the discretion under s 66G is described as a “limited discretion”. It is for the co-owner who opposes the making of an order under s 66G to establish a reason why the order should not be made.

15. I am not satisfied that, having carefully considered all of the material and submissions relied upon by Ms Nguyen, any basis has been demonstrated as to why a s 66G order should not be made.

16. Ms Nguyen points, understandably, to the not uncommon consequence that the effect of a court making orders under s 66G, appointing paid trustees for sale, is that the net amount received by the parties, once the property has been sold, is less than it otherwise would have been if the parties were able to agree to a solution whereby trustees for sale were not appointed. That, however, is not a basis on which the Court can decline to make orders under s 66G.

17. The financial downside of an appointment is, in my view, a real world issue in the present case. This is particularly so in circumstances where the evidence does demonstrate that there have been attempts to negotiate an outcome whereby the defendant buys the plaintiff’s interest out of the Property. The evidence demonstrates that, quite recently, the parties were quite close in terms of their competing offers. Ms Nguyen wants to continue those discussions.

18. The evidence also discloses that the defendant has had her own recent communications with the CBA, and that the CBA has also agreed to defer the defendant’s need to make minimum repayments until 7 July 2026. The CBA has also agreed to postpone any further enforcement action during that period. Whilst it is clear that during this period interest will continue to accrue and that no repayments are being made on the loan, I am at least satisfied that in this period, until 7 July 2026, there is no prospect that the CBA will seek to foreclose on the loan and sell the Property, which was the reason that the plaintiff understandably commenced the proceedings on an urgent basis.

19. In these circumstances, it seems to me that the appropriate course to take is for the Court to make orders today appointing trustees for sale of the Property but to stay them for a short period. These orders will include orders pursuant to s 66I of the Conveyancing Act so as to permit both the plaintiff and the defendant to seek to buy the Property from the trustees for sale. They will also provide for the net proceeds of sale, if any sale to a third party occurs, to be paid into Court. It seems reasonably clear on the material before me today that there may well be a dispute between the parties as to their respective contributions, including, for example, the utility expenses in relation to the Property in recent times, and also perhaps mortgage payments.

20. There may thus be a dispute in relation to how any net proceeds of sale are to be divided, or at least what amount is required to be paid if the defendant buys the plaintiff out.

21. Given that there is at least some prospect of a resolution being reached between the parties, against a background of what seems to me to be a strong commercial incentive for each party to seek to agree such an outcome, it seems appropriate that the orders appointing trustees should be stayed until around the period granted by the CBA forbearing under the mortgage. Accordingly, in the circumstances, I propose to stay the orders that I make in relation to the appointment of trustees until 10 July 2026 to see if the parties are able, in that period, to reach an agreement which obviates the need for trustees for sale to be appointed.

22. For these reasons, I make orders in accordance with the orders handed up by Mr Kulkarni appointing trustees for sale. As discussed with the parties prior to delivering these reasons, I have amended those orders so that they clearly provide for order 4(e), which deals with payment of costs, to be deleted. They also provide in what was previously 4(f), now 4(e), for the net proceeds to be paid into Court. Payment out, including on account of costs, can be dealt with subsequently.

23. I have also deleted the words in order 5 permitting a set off of entitlements in the event that either the plaintiff or defendant is able to agree to terms with the trustee to purchase the Property or is the successful bidder at an auction. This is in circumstances where, as I have set out above, it is likely that there will be a dispute between the parties as to their respective contributions.

24. To the orders I have also added a further two orders:

7. Stand proceedings over to 17 July 2026.

8. Orders 1 to 6 stayed until 5.00pm on 10 July 2026.

22. I have otherwise signed and dated the short minutes of order setting out the orders that I have made.

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