Commonwealth Bank of Australia v MacDonald [2000] NSWSC 553

Commonwealth Bank of Australia v MacDonald [2000] NSWSC 553

The defendants did not hold the shares or right to occupy as co-owners (tenants in common) within the meaning of s 66G, as there was no unity of possession; therefore, the statutory right to seek appointment of trustees for sale did not arise, and the bank's application must be dismissed.

Parties
Plaintiff: Commonwealth Bank of Australia; First Defendant: Ian Harley Donald MacDonald; Second Defendant: Elizabeth Helen MacDonald
Jurisdiction
Australia
Judgment Date
21 June 2000
Procedural Posture
Civil / Final Judgment
Outcome
Proceedings dismissed with costs.
Legal Topics
Tenancy in Common, Partition, Company Title Home Unit, Statutory Trust for Sale, Co Ownership
Equity Real Property Personal Property Tenancy in Common Partition Company Title Home Unit Statutory Trust for Sale Co Ownership

Case Brief

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Parties

Commonwealth Bank of Australia

Plaintiff

Ian Harley Donald MacDonald

First Defendant

Elizabeth Helen MacDonald

Second Defendant

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Whether shares or rights of occupation in a company title home unit scheme can be subject to an order for sale under s 66G of the Conveyancing Act 1919
  2. 2 Whether the holders of shares or rights of occupation are co-owners within the meaning of the Act
  3. 3 Whether the bank as incumbrancer is entitled to apply under s 66G

Ratio Decidendi

The defendants did not hold the shares or right to occupy as co-owners (tenants in common) within the meaning of s 66G, as there was no unity of possession; therefore, the statutory right to seek appointment of trustees for sale did not arise, and the bank's application must be dismissed.

Court Disposition

Proceedings dismissed with costs.

Orders

  • Proceedings dismissed with costs.
  • Exhibits may be returned.