Harris v Harris [2014] NSWSC 1766

Harris v Harris [2014] NSWSC 1766

The motion was dismissed because Lesley's claim that Michael holds his half interest on trust for her had not yet been heard and determined, and it was therefore premature and inappropriate for Michael to obtain by interlocutory motion the same sale relief sought in his cross-claim. If the trust claim succeeded, ordering sale would be inequitable; the pending determination of that claim was a cogent reason not to force a sale, especially where no hardship to Michael from waiting for the listed final hearing was demonstrated.

Jurisdiction
Australia
Judgment Date
11 December 2014
Procedural Posture
Application Under S 66 G of the Conveyancing Act 1919 (nsw) for Appointment of Trustees for Sale / Interlocutory Notice of Motion Before Final Hearing
Outcome
Defendant's Motion dismissed.
Legal Topics
['co Ownership' 'trusts' 'appointment of Trustees for Sale' 'conveyancing Act 1919 (nsw) S 66 G' 'interlocutory Relief']
['equity' 'property Law'] ['co Ownership' 'trusts' 'appointment of Trustees for Sale' 'conveyancing Act 1919 (nsw) S 66 G' 'interlocutory Relief']

Case Brief

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Procedural Posture

Application Under S 66 G of the Conveyancing Act 1919 (nsw) for Appointment of Trustees for Sale / Interlocutory Notice of Motion Before Final Hearing

Legal Issues

  1. 1 ["Whether trustees for sale of the property should be appointed under s 66G of the Conveyancing Act 1919 (NSW) before determination of the plaintiff's claim that the defendant holds his interest on trust for her." "Whether the defendant's interlocutory motion sought, in effect, final relief claimed in his cross-claim." 'Whether the unresolved trust claim provided a cogent reason to refuse or defer an order for sale.']

Ratio Decidendi

The motion was dismissed because Lesley's claim that Michael holds his half interest on trust for her had not yet been heard and determined, and it was therefore premature and inappropriate for Michael to obtain by interlocutory motion the same sale relief sought in his cross-claim. If the trust claim succeeded, ordering sale would be inequitable; the pending determination of that claim was a cogent reason not to force a sale, especially where no hardship to Michael from waiting for the listed final hearing was demonstrated.

Court Disposition

Defendant's Motion dismissed.

Orders

  • ["The defendant's Motion should be dismissed." "The defendant should be ordered to pay the plaintiff's costs."]