Barel v Segal (No 1) [2011] NSWSC 1181

Barel v Segal (No 1) [2011] NSWSC 1181

The Court favoured partition over sale at this stage because strata subdivision was the parties' original and logical objective, the defendant's objections to the proposed plan did not establish futility, s 66G permits a flexible staged process, and partition appeared capable of producing a just and more beneficial outcome. However, no final partition order could be made until evidence of the Commonwealth Bank's consent was provided and remaining issues, including the parties' financial contributions and any adjustment or equality money, were determined.

Jurisdiction
Australia
Judgment Date
19 October 2011
Procedural Posture
Equity Division Application Under Conveyancing Act 1919 S 66 G for Appointment of a Trustee to Hold Land on Statutory Trust for Partition or Sale / Principal Judgment; Interim Directions Made, With Final Determination of Partition or Sale Deferred
Outcome
Proceedings adjourned for directions; possession proceedings transferred to the Equity Division; partition favoured subject to further evidence, mortgagee consent and determination of remaining issues.
Legal Topics
['conveyancing Act 1919 S 66 G' 'statutory Trust for Partition' 'statutory Trust for Sale' 'meaning of More Beneficial' 'strata Subdivision' 'mortgagee Consent' 'referral to Referee' 'equality Money']
['convey Ancing' 'property Law' 'equity'] ['conveyancing Act 1919 S 66 G' 'statutory Trust for Partition' 'statutory Trust for Sale' 'meaning of More Beneficial' 'strata Subdivision' 'mortgagee Consent' 'referral to Referee' 'equality Money']

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Procedural Posture

Equity Division Application Under Conveyancing Act 1919 S 66 G for Appointment of a Trustee to Hold Land on Statutory Trust for Partition or Sale / Principal Judgment; Interim Directions Made, With Final Determination of Partition or Sale Deferred

Legal Issues

  1. 1 ['Whether the property should be held on statutory trust for partition under Conveyancing Act 1919 s 66G(4) or on statutory trust for sale under s 66G(1).' 'Whether partition could be ordered on a contingent basis where implementation depended on strata subdivision approval.' 'Whether partition would be more beneficial than sale for both equal co-owners.' 'Whether the consent of the mortgagee was required and available before an order for partition could be made.' "Whether unresolved disputes about the parties' financial contributions and any equality money prevented final orders at this stage." "Whether the defendant's objections to the plaintiff's proposed strata subdivision plan made partition futile or discretionary inappropriate."]

Ratio Decidendi

The Court favoured partition over sale at this stage because strata subdivision was the parties' original and logical objective, the defendant's objections to the proposed plan did not establish futility, s 66G permits a flexible staged process, and partition appeared capable of producing a just and more beneficial outcome. However, no final partition order could be made until evidence of the Commonwealth Bank's consent was provided and remaining issues, including the parties' financial contributions and any adjustment or equality money, were determined.

Court Disposition

Proceedings adjourned for directions; possession proceedings transferred to the Equity Division; partition favoured subject to further evidence, mortgagee consent and determination of remaining issues.

Orders

  • ['The proceedings were adjourned to 24 October 2011 before Pembroke J for directions.' 'Possession proceedings No 2011/90694 in the Common Law Division of the Supreme Court of New South Wales were transferred to the Equity Division and listed together with these proceedings on 24 October 2011.' "The plaintiff's...