David v Baker [2015] NSWSC 393

David v Baker [2015] NSWSC 393

The plaintiff was entitled to orders under s 66G because the defendant had no contractual right, proprietary estoppel, fiduciary obligation or other sufficient equitable right inconsistent with sale. The 2004 agreement was fairly construed as operating only during the period of the plaintiff's patronage or the defendant's research, and likely lacked consideration. Mere hardship to the defendant was insufficient. The defendant had lived rent free for about 10 years, the plaintiff had paid at least $500,000 towards the mortgage for no benefit, and if no order were made the mortgagee was likely to sell the property in any event. The Court therefore declined to exercise its discretion against...

Jurisdiction
Australia
Judgment Date
25 March 2015
Procedural Posture
Application Under S 66 G of the Conveyancing Act 1919 (nsw) for Appointment of Trustees for Sale of Co Owned Real Property / Principal Judgment; Ex Tempore Decision on Amended Summons
Outcome
The plaintiff is entitled to the orders he seeks; orders 1, 2 and 6 of the Amended Summons were made.
Legal Topics
['co Ownership' 'statutory Trust for Sale' 'conveyancing Act 1919 (nsw) S 66 G' 'discretion to Refuse Sale' 'consideration' 'proprietary Estoppel' 'hardship']
['real Property' 'equity' 'contract'] ['co Ownership' 'statutory Trust for Sale' 'conveyancing Act 1919 (nsw) S 66 G' 'discretion to Refuse Sale' 'consideration' 'proprietary Estoppel' 'hardship']

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Procedural Posture

Application Under S 66 G of the Conveyancing Act 1919 (nsw) for Appointment of Trustees for Sale of Co Owned Real Property / Principal Judgment; Ex Tempore Decision on Amended Summons

Legal Issues

  1. 1 ['Whether the Court should make orders under s 66G of the Conveyancing Act 1919 (NSW) appointing trustees for sale of the Terrigal property.' 'Whether the 2004 agreement or related arrangement gave the defendant a contractual, proprietary, fiduciary or estoppel-based right inconsistent with an order for sale.' 'Whether hardship to the defendant and his family justified refusing relief under s 66G.']

Ratio Decidendi

The plaintiff was entitled to orders under s 66G because the defendant had no contractual right, proprietary estoppel, fiduciary obligation or other sufficient equitable right inconsistent with sale. The 2004 agreement was fairly construed as operating only during the period of the plaintiff's patronage or the defendant's research, and likely lacked consideration. Mere hardship to the defendant was insufficient. The defendant had lived rent free for about 10 years, the plaintiff had paid at least $500,000 towards the mortgage for no benefit, and if no order were made the mortgagee was likely to sell the property in any event. The Court therefore declined to exercise its discretion against...

Court Disposition

The plaintiff is entitled to the orders he seeks; orders 1, 2 and 6 of the Amended Summons were made.

Orders

  • ['An order pursuant to section 66G of the Conveyancing Act 1919 (NSW) that James White and Atle Crowe-Maxwell be appointed trustees of the whole of the land comprised in certificate of title folio identifier 6/SP41334, known as Unit 6, 10-14 Whiting Avenue, Terrigal NSW 2260.' 'An order that the property be vested...