Lansom v Lansom (No 2)

[2018] NSWSC 835

Supreme Court

New South Wales

Medium Neutral Citation:	Lansom v Lansom (No 2) [2018] NSWSC 835
Hearing dates:	In Chambers
Date of orders:	06 June 2018
Decision date:	06 June 2018
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	(1)   That Gordon Albert Salier shall be entitled: (a)   To make and be paid from the sale of the property situated and knows as 750 Red Hill Road, Upper Turon all the usual and proper charges at the hourly rate of $450.00 plus GST on his usual terms as to payment; (i)   For his work as trustee for sale; (ii)   For the professional and non-professional services rendered by him as such trustee for sale; and (b)   Engage the services of any other legal practitioner, accountant or other professional advisor in relation to the sale of the property where he considers it necessary to do so and to pay from the proceeds of sale the costs incurred in having those services provided. (2) That pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, Order 3 and 4 of the Orders dated 23 May 2018 be amended to: 3.   Trustee to be appointed to sell Lot 11 in DP 1212678. 4.   Trustee to be remunerated out of the sale of Lot 11 in DP 1212678.
Catchwords:	PRACTICE AND PROCEDURE – slip rule – error in consent orders – amended orders to be made
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642; [1906] HCA 71
Category:	Procedural and other rulings
Parties:	Warren Richard Lansom (Plaintiff/Cross-Defendant) Wayne Eric Lansom (First Defendant/Cross-Claimant) Nancy Ward (Second Defendant) Kyle Lansom (Third Defendant)
Representation:	Counsel: Dr S Blount (Plaintiff/Cross-Defendant) Mr H Jewell (First Defendant/Cross-Claimant)   Solicitors: Kenny Spring Solicitors (Plaintiff/Cross-Defendant) McIntosh McPhillamy & Co (First Defendant/Cross-Claimant) Ms N Ward, unrepresented (Second Defendant) Mr K Lansom, unrepresented (Third Defendant)
File Number(s):	2017/224886
Publication restriction:	Nil

Judgment

1. On 23 May 2018 when the matter settled during the course of the proceedings, I made orders by consent. They included orders dismissing the statement of claim and cross-claim; orders which provided for the appointment of a trustee to sell the property the subject of the proceedings; and for how the proceeds of the sale were to be dealt with, as between the trustee, the plaintiff and the first defendant.

2. There is an error in the identification of the property in the orders made. The plaintiff and the first defendant have also agreed that it is necessary for the now appointed trustee, Mr Salier, to be named in the Court’s orders, so that the orders can properly give effect to the agreement they earlier reached.

3. In the circumstances which have arisen, I am satisfied that these orders can be made in accordance with the slip rule under Rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW).

4. I am also satisfied that the trouble and expense of formally obtaining the consent of the second and third defendants to the proposed orders need not be incurred, consistently with s 56 of the Civil Procedure Act 2005 (NSW). That is because they will not be affected by the proposed amendments and, where in the circumstances which have arisen, there can be no real difference of opinion over the matters which have arisen.

5. Accordingly, I am satisfied that the amended orders should be made in order to deal justly with the errors which have been identified: Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642; [1906] HCA 71.

6. Accordingly, I order:

1. That Gordon Albert Salier shall be entitled:

2. (a)   To make and be paid from the sale of the property situated and knows as 750 Red Hill Road, Upper Turon all the usual and proper charges at the hourly rate of $450.00 plus GST on his usual terms as to payment;

3. (i)   For his work as trustee for sale;

4. (ii)   For the professional and non-professional services rendered by him as such trustee for sale; and

5. (b)   Engage the services of any other legal practitioner, accountant or other professional advisor in relation to the sale of the property where he considers it necessary to do so and to pay from the proceeds of sale the costs incurred in having those services provided.

6. That pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, Order 3 and 4 of the Orders dated 23 May 2018 be amended to:

7. 3.   Trustee to be appointed to sell Lot 11 in DP 1212678.

8. 4.   Trustee to be remunerated out of the sale of Lot 11 in DP 1212678.

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