Clegg v Rowlands [2022] NSWSC 1203

Clegg v Rowlands [2022] NSWSC 1203

The Defendant did not demonstrate suffering a special disability seriously affecting her ability to act in her own best interests at the relevant time; nor did the Plaintiffs take unconscientious advantage of her. The Declaration of Trust and Transfer are not void ab initio. Orders for statutory sale and appointment of trustees pursuant to section 66G of the Conveyancing Act 1919 (NSW) are granted, as no equitable reason was found to refuse such relief.

Parties
First Plaintiff and First Cross Defendant: Roger Clegg; Second Plaintiff and Second Cross Defendant: Gwendoline Heather Clegg; Defendant and Cross Claimant: Jane Rowlands
Jurisdiction
Australia
Judgment Date
08 September 2022
Procedural Posture
Equity Proceeding / Principal Judgment
Outcome
Orders granted for statutory sale; cross-claim dismissed; costs ordered against Defendant.
Legal Topics
Unconscionable Conduct, Special Disability, Statutory Trust for Sale, Partition, Declarations of Trust
Equity Unconscionable Conduct Special Disability Statutory Trust for Sale Partition Declarations of Trust

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Parties

Roger Clegg

First Plaintiff and First Cross Defendant

Gwendoline Heather Clegg

Second Plaintiff and Second Cross Defendant

Jane Rowlands

Defendant and Cross Claimant

Procedural Posture

Equity Proceeding / Principal Judgment

Legal Issues

  1. 1 Whether the Plaintiffs took unconscientious advantage of any special disadvantage of the Defendant in relation to the execution of declaration of trust and transfer
  2. 2 Whether the Defendant suffered special disability by way of financial hardship and ill-health
  3. 3 Whether to appoint trustees for statutory sale under section 66G of the Conveyancing Act 1919 (NSW)

Ratio Decidendi

The Defendant did not demonstrate suffering a special disability seriously affecting her ability to act in her own best interests at the relevant time; nor did the Plaintiffs take unconscientious advantage of her. The Declaration of Trust and Transfer are not void ab initio. Orders for statutory sale and appointment of trustees pursuant to section 66G of the Conveyancing Act 1919 (NSW) are granted, as no equitable reason was found to refuse such relief.

Court Disposition

Orders granted for statutory sale; cross-claim dismissed; costs ordered against Defendant.

Orders

  • Leave is granted to the parties to jointly approach the Associate within 7 days for alternative orders regarding sale of the land.
  • If leave not exercised, Christopher John Palmer and Liam Bailey are appointed trustees of the land for statutory sale under section 66G of the Conveyancing Act 1919 (NSW).