Foote v Foote [2014] NFSC 2

Foote v Foote [2014] NFSC 2

The will of the late Eldon Foote created only a power of sale, not a trust for sale, therefore the plaintiffs have title and standing to seek the orders. There is no good reason for declining an order for sale under Partition Act 1900 (NSW) s 4(1)(b), and non-financial considerations do not suffice to prevent sale....

Source-derived case information.

Jurisdiction
Australia
Judgment Date
11 December 2014
Procedural Posture
Originating Application for Partition or Sale of Land / Final Judgment and Orders
Outcome
Application for order of sale granted; property to be sold and proceeds distributed according to co-owners' interests
Legal Topics
['partition of Property' 'trust for Sale Vs. Power of Sale' 'interpretation of Wills' 'distribution of Estate Under Tenancy in Common']
['real Property' 'wills and Estates'] ['partition of Property' 'trust for Sale Vs. Power of Sale' 'interpretation of Wills' 'distribution of Estate Under Tenancy in Common']

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Procedural Posture

Originating Application for Partition or Sale of Land / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the will of the late Eldon Foote created a trust for sale or a power of sale' 'Whether the plaintiffs have standing and title to apply for partition or sale' 'Whether the property should be sold and proceeds distributed proportionately' 'Whether non-financial considerations may prevent a sale under Partition Act 1900 (NSW as adopted in Norfolk Island)']

Ratio Decidendi

The will of the late Eldon Foote created only a power of sale, not a trust for sale, therefore the plaintiffs have title and standing to seek the orders. There is no good reason for declining an order for sale under Partition Act 1900 (NSW) s 4(1)(b), and non-financial considerations do not suffice to prevent sale. Distribution will occur in proportion to tenancy-in-common interests.

Court Disposition

Application for order of sale granted; property to be sold and proceeds distributed according to co-owners' interests

Orders

  • ['The property at 7 Rocky Point Road, Norfolk Island, is to be sold by agent as specified, with invitation to tender, public auction, or private treaty if necessary.' 'Reserve price set at $2,200,000.00 for tender and auction.' 'Agent authorised to execute all necessary sale documents on behalf of proprietors.'...