Scott Darren Pascoe as trustee of the property of Arthur Linden Dyason, a bankrupt v Lindsey Jane Dyason & Ors [2011] NSWSC 1217

Scott Darren Pascoe as trustee of the property of Arthur Linden Dyason, a bankrupt v Lindsey Jane Dyason & Ors [2011] NSWSC 1217

The plaintiffs, as co-owners, are entitled almost as of right to the appointment of trustees for sale under s 66G of the Conveyancing Act. Grounds advanced by the defendants, including absence of equity, partnership status, and family hardship, are insufficient in law to preclude such orders; discretion to refuse is limited and not engaged on the evidence.

Parties
First Plaintiff: Scott Darren Pascoe as trustee of the property of Arthur Linden Dyason, a bankrupt; Second Plaintiff: Elizabeth Occelshaw; First Defendant: Lindsey Jane Dyason; Second Defendant: Arthur Linden Dyason
Jurisdiction
Australia
Judgment Date
14 October 2011
Procedural Posture
Equity Proceedings / Principal Judgment
Outcome
Order that trustees be appointed for sale of the subject property and associated orders.
Legal Topics
Statutory Trust for Sale, Appointment of Trustees, Tenants in Common, Termination of Co Ownership, Court Discretion Under Conveyancing Act
Real Property Bankruptcy Equity Statutory Trust for Sale Appointment of Trustees Tenants in Common Termination of Co Ownership Court Discretion Under Conveyancing Act

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Parties

Scott Darren Pascoe as trustee of the property of Arthur Linden Dyason, a bankrupt

First Plaintiff

Elizabeth Occelshaw

Second Plaintiff

Lindsey Jane Dyason

First Defendant

Arthur Linden Dyason

Second Defendant

Procedural Posture

Equity Proceedings / Principal Judgment

Legal Issues

  1. 1 Whether trustees for sale should be appointed for the property under s 66G of the Conveyancing Act 1919 (NSW)
  2. 2 Whether the property is an asset of a partnership and affected by the Partnership Act 1892 (NSW)
  3. 3 Whether hardship or absence of equity precludes orders for sale

Ratio Decidendi

The plaintiffs, as co-owners, are entitled almost as of right to the appointment of trustees for sale under s 66G of the Conveyancing Act. Grounds advanced by the defendants, including absence of equity, partnership status, and family hardship, are insufficient in law to preclude such orders; discretion to refuse is limited and not engaged on the evidence.

Court Disposition

Order that trustees be appointed for sale of the subject property and associated orders.

Orders

  • Trustees appointed for sale of the property (Lot 31 in Deposited Plan 707896).
  • Property vested in trustees subject to encumbrances affecting entirety, but free from encumbrances affecting any undivided shares.