Van Oosterum v Van Oosterum [2011] NSWSC 663

This case concerned the dissolution of a family partnership in relation to the farming of land, which was half owned by the father and the remaining half by his children and defacto partner. The children now seek the appointment of trustees for the partition of the land.

Appointment of trustees

When deciding upon trustees for sale, where there is no consent, four factors usually need to be considered:

  1. the principle that the court tends to prefer the preference of the person with the greater interest in the land. That factor in the present case does not get us anywhere because the shares are equal;
  2. the trustees should be independent and as free from conflict of interests as possible. The court did not take account of any suggestion of bias with no evidential basis;
  3. the trustees, particularly where they have more active duties than merely to sell a piece of real estate, should have the appropriate skill, expertise and experience; and
  4. the court should endeavour to get the best value for the parties’ money and see that as between two equally alternative proposals the cheaper is preferred. The court noted that appointing two people from the same firm would likely prove cheaper and they both consented to be appointed a receiver.

The court ordered the appointment of the trustees sought by the children who best satisfied the above considerations.

Appointment of receivers

Bearing in mind that two trustees are needed, it is appropriate that they both act as receivers since they are from the same firm.

Possession of the land

The court did not order possession because it is up to the trustee to decide when it is appropriate to require the father to vacate the land.

Costs

The ordinary rule is that the costs of both parties of an action for dissolution are paid out of the joint assets, since the domestic relationship is akin to a partnership. In this case, both the father and children were unsuccessful to the same extent as regards different issues raised. Accordingly the court ordered costs to be paid from the sale price of the land.

The court ordered partition as the consent of the mortgagee had been obtained.

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