Rovere v Rovere [2023] NSWSC 1410

Coffee and a Case Note

“Your share of the sale proceeds gets reduced for us dealing with your complaints!”

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3 siblings co-owned real property. They disagreed on what use it ought to have been put to. 2 siblings, the Ps, applied to appoint s66G Tees, successfully.The Tees sold the land and distributed the Ps’ shares of the sale proceeds. The remaining sibling - the defendant, D - contested the Tees’ fees and criticised their management of the sale: [1] - [4]

The Tees applied to be paid further remuneration from the D’s share (based on those costs arising from the D’s conduct) and to retire as trustees: [5]

The Tees took the view that they should have distributed the net proceeds (after paying themselves 2/3 of their fees) proportionally to the Ps, and that the costs of any dispute with the D be borne solely from D’s share. The Court endorsed this approach: [11]

The Tees retained the D’s 1/3 share, and an amount on account of 1/3 of the remuneration they were entitled to: [12]

The D made various criticisms of the Tees' conduct of the sale including in lengthy correspondence, and then refused to attend meetings or provide bank details in order to accept a payment: [13] - [15]

The Tees instructed lawyers, and then so did the D. The D later withdrew his lawyers’ instructions, and then said they would accept the figure first offered by the Tees without deduction: [16] - [18]

The Tees reiterated they intended to make deductions and the D reiterated their claims. The Tees delayed approaching the Court and tried to negotiate, but eventually brought this application: [19]

The Court noted trustees for sale are entitled to be indemnified for their costs in the normal course, and that where litigation is threatened those costs may be higher than usual: [22]

The Tees’ claim for their own further remuneration was reasonable and “could even be characterised as modest” noting they did not claim for their time trying to negotiate with the D: [26]

The Tees claimed further costs for their engagement with solicitors and in bringing the relevant motion: [27]

The Court considered once the D raised their complaints the Tees needed legal advice on whether to negotiate with the D, or to consider making an application to the Court: [28]

Broadly D complained about the Tees time entries and professional conduct: [30] - [32]

After extensive consideration the Court found the Tees discharged their duties reasonably, diligently, and honestly: [33]

The Court found it appropriate, and permitted, that the D’s share of the sale proceeds bear the Tees' further remuneration and costs: [34] - [36]

The Tees originally attempted to pay $235K to the D as their share. The Court accepted the Tees costs and remuneration substantially exceeded $65K but accepted that figure as a compromise of the Tees’ remuneration and the fees to be charged by the Tees’ legal team: [40] - [42]

Having failed to accept payment of $235K, the Court ordered the D was to receive ~$172K: [45]

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