Scheibl v Radig

HIS HONOUR: By summons filed on 1 May 2018, the plaintiff, Mr Kevin Scheibl, seeks orders under s 66G of the Conveyancing Act 1919 (NSW) (the Conveyancing Act) in relation to a property located in Burwood Road, Concord (the Concord Property). The Concord Property is under the provisions of the Real Property Act 1900 (NSW). Section 66G(1) of the Conveyancing Act relevantly provides that, where any property is held in co-ownership the Court may, on the application of any one or more of the co-owners, appoint trustees of the property and vest the property in such trustees. The Court may either appoint trustees for partition or trustees for sale. Mr Scheibl seeks the appointment of trustees on the statutory trust for sale in accordance with s 66F(2).

The Concord Property was purchased by Mr Scheibl and the defendant, Ms Karin Radig, on 4 December 1996. At the time of the purchase, Mr Scheibl and Ms Radig were in a de facto relationship. They arranged a facility with National Australia Bank Limited (NAB) for approximately $526,000 to enable them to complete the purchase. Approximately $460,000 was drawn under the facility. The balance of the purchase price was contributed as to $80,000 by Mr Scheibl and as to $83,000 by Ms Radig. The Concord Property was originally purchased by the parties as joint tenants, but Mr Scheibl subsequently applied for the severance of the joint tenancy and he and Ms Radig are now registered as proprietors of the Concord Property as tenants in common in equal shares.

The relationship between Mr Scheibl and Ms Radig came to an end in about 1998 or 1999. During the time that they were engaged in the relationship, the costs associated with the Concord Property were paid from an offsetting account held by the parties with NAB. While complete details are not now available, Mr Scheibl has estimated that he has paid approximately 51.1% of the loan repayments and that Ms Radig paid approximately 48.9% of the repayments.

Following the termination of their relationship, Mr Scheibl and Ms Radig at various times have occupied the Concord property without payment of rent or occupation fee to the other. During one period, the Concord property was let to third parties and the income applied in reduction of the amounts owing to NAB.

Following the end of the relationship, a number of attempts were made by Mr Scheibl to obtain Ms Radig's agreement to effect a sale of the Concord Property but no agreement has been reached. From time to time, Ms Radig has asserted that she is owed money by Mr Scheibl but has provided no material in support of that claim.

Mr Scheibl has now been diagnosed with a condition which has the consequence that he is unable to work. He is presently in receipt of a retirement benefit from the Royal Australian Navy and a disability pension. He wishes to effect sale of the Concord Property so that he can be relieved of his debt to NAB and obtain a property, unencumbered, in which he can reside.

The matter was listed before me this morning and, when it was called, there was no appearance for Ms Radig. Mr Ryan Williams, a process server, has deposed that on 17 July 2018, he served Ms Radig with the summons and an affidavit of Mr Scheibl affirmed on 4 April 2018. At the time of service, Mr Williams asked the recipient questions that indicated that she was the defendant. The summons was returnable on 24 September 2018. On 21 September 2018, a partner in the firm of Hughes & Taylor spoke to Ms Radig by telephone and Ms Radig said that she could not find a lawyer and wanted an adjournment.

There was no appearance for Ms Radig before the Registrar in Equity on 24 September 2018 and the proceedings were adjourned. Later on 24 September 2018, Hughes & Taylor sent an email to Ms Radig. On 22 October 2018, Hughes & Taylor received an email from Ms Radig containing without prejudice material. The content is not relevant but the fact of the communication is evidence of Ms Radig's awareness of the proceedings.

On 23 October 2018, Hughes & Taylor received a further email from Ms Radig, saying that she wanted to attend Court herself but could not as she was away with work and could not find legal representation in time. On 24 October 2018, Hughes & Taylor sent a further email to Ms Radig, informing her that the matter was listed in Court on 29 October 2018.

There was no appearance for Ms Radig on 29 October 2018, at the directions hearing on that day. Later on 29 October 2018, Hughes & Taylor sent a further email to Ms Radig, noting that there was no appearance at the directions hearing and attaching a copy of the orders made by the Registrar in Equity on that day listing the matter on 23 November 2018. The proceedings came before Kunc J on 23 November 2018, when, again, there was no appearance by Ms Radig.

Later on 23 November 2018, Hughes & Taylor sent a further email to Ms Radig informing her that the proceedings had been listed for hearing on 6 December 2018. On 3 December 2018, Hughes & Taylor sent a letter by email to Ms Radig confirming that the proceedings were listed for final hearing on Thursday, 6 December 2018 and informing her that, if she did not appear, the proceedings may be determined in her absence. A copy of submissions proposed to be made on behalf of Mr Scheibl was attached to the letter sent by email.

In all of the circumstances, I am satisfied that the defendant had ample notice of these proceedings and the fact that the proceedings were listed for hearing today. Accordingly, there does not appear to be any reason why I should not proceed to deal on a final basis with the summons. It will of course be open to Ms Radig, if she is so advised, to apply to have set aside any orders made in her absence.

I have evidence before me that Mr Dib Chidiac and Ms Kaye Loder have consented to act as trustees on the statutory trust for sale of the Concord Property. While Mr Chidiac has not previously acted as a trustee, he is an experienced real estate agent in the Concord area, having sold close to 1,000 properties in that area in his time as a real estate agent since 2009. Ms Loder is a retired solicitor and has had considerable experience in relation to the sale of property pursuant to orders made by the Court, the administration of estates and otherwise.

I am satisfied that orders should be made in terms of the prayers for relief in the summons subject to one exception. Mr Scheibl originally claimed that there should be paid out of the proceeds of sale an amount to reimburse him for the costs of repairs to the Concord Property borne by him. He no longer presses that claim.

For the above reasons, I propose to make the following orders: