Harvey v Barton [2015] NSWSC 809

Trustees were appointed to sell jointly owned property and then applied to the court for payment of their costs from the sale proceeds and an order that one of the co-owners bear certain costs out of her share given her lack of co-operation.

The court ordered that the ordinary costs of the sale would be shared by the owners in the ratio of their share of the sale proceeds. However the costs over and above this, due to one of the owners obstructing the sale including the additional cost of removing her possessions to a storage facility, would be borne solely by her. The court also directed the trustee to sell these goods by public auction unless they were collected from the facility within 3 months. Given a previous costs order against the un-cooperative co-owner which went to assessment was unpaid and Legal Aid had to attach the costs on the title to the property by way of a writ of attachment, the court considered it appropriate to make a lump sum costs order so that the trustee and their lawyers recovered all of their legal costs on an indemnity basis. The court also directed the trustees to advise the un-cooperative co-owner of her share of the proceeds and if she did not accept it, to simply pay that money into court. 

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