Breiholdt v Green [2005] NSWSC 702

Breiholdt v Green [2005] NSWSC 702

Orders giving effect to compromise among co-owners will bind absent co-owner who had notice and opportunity to be heard; substitution of deceased plaintiff's legal personal representative is appropriate upon grant of probate.

Parties
Plaintiff and First Cross Defendant: Hans Breiholdt; First Defendant and Second Cross Defendant: Stephen Geoffrey Green; Second Defendant and Third Cross Defendant: Mark James McClelland; Third Defendant and Cross Claimant: Deborah Caroline Bedford Vincent; Fourth Defendant and Fourth Cross Defendant: Simon Cunningham Uren; Fifth Defendant and Fifth Cross Defendant: Mark Andrew Scott; Sixth Cross Defendant: Donald Noel King; Seventh Cross Defendant: Jeanine Maree King; Substituted Plaintiff and First Cross Defendant: Nicolette Angelica Meng
Jurisdiction
Australia
Judgment Date
12 July 2005
Procedural Posture
Equity / Post Hearing Judgment / Final Orders
Outcome
Orders made giving effect to compromise regarding distribution of proceeds of sale by trustees and costs, binding non-consenting co-owner; legal personal representative substituted as plaintiff.
Legal Topics
Partition of Land, Statutory Trust for Sale, Distribution of Proceeds of Sale
Real Property Equity Partition of Land Statutory Trust for Sale Distribution of Proceeds of Sale

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Parties

Hans Breiholdt

Plaintiff and First Cross Defendant

Stephen Geoffrey Green

First Defendant and Second Cross Defendant

Mark James McClelland

Second Defendant and Third Cross Defendant

Deborah Caroline Bedford Vincent

Third Defendant and Cross Claimant

Simon Cunningham Uren

Fourth Defendant and Fourth Cross Defendant

Mark Andrew Scott

Fifth Defendant and Fifth Cross Defendant

Donald Noel King

Sixth Cross Defendant

Jeanine Maree King

Seventh Cross Defendant

Nicolette Angelica Meng

Substituted Plaintiff and First Cross Defendant

Procedural Posture

Equity / Post Hearing Judgment / Final Orders

Legal Issues

  1. 1 Whether orders for distribution of sale proceeds can bind non-consenting co-owner under s 66G of Conveyancing Act 1919
  2. 2 Whether substitution of plaintiff due to death is appropriate

Ratio Decidendi

Orders giving effect to compromise among co-owners will bind absent co-owner who had notice and opportunity to be heard; substitution of deceased plaintiff's legal personal representative is appropriate upon grant of probate.

Court Disposition

Orders made giving effect to compromise regarding distribution of proceeds of sale by trustees and costs, binding non-consenting co-owner; legal personal representative substituted as plaintiff.

Orders

  • Orders for distribution of proceeds of sale and costs as agreed by seven of eight co-owners are made, binding on the eighth co-owner, Simon Cunningham Uren.
  • Nicolette Angelica Meng is substituted as plaintiff and first cross defendant in place of Hans Breiholdt.