Davey v Baker [2005] NSWSC 333

Davey v Baker [2005] NSWSC 333

The house property was held in co-ownership within s 66F(1) of the Conveyancing Act 1919, and although the defendant's long occupation and asserted evidence of his mother's wishes attracted sympathy, there was nothing making it proper to decline appointment of trustees for sale. Section 66G could not be used to alter the existing intestacy shares, so orders appointing trustees for sale were appropriate.

Jurisdiction
Australia
Judgment Date
01 April 2005
Procedural Posture
Equity Proceedings Concerning Intestate Estate Land and Appointment of Trustees for Sale / Judgment on Amended Summons
Outcome
Orders made under s 66G of the Conveyancing Act 1919; amended summons otherwise dismissed; no order as to costs.
Legal Topics
['intestacy' 'administration of Estates' 'transfer of Land to Beneficiaries' 'co Ownership' 'appointment of Trustees for Sale']
['succession' 'equity' 'property Law'] ['intestacy' 'administration of Estates' 'transfer of Land to Beneficiaries' 'co Ownership' 'appointment of Trustees for Sale']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Intestate Estate Land and Appointment of Trustees for Sale / Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether an order should be made under s 84 of the Wills, Probate and Administration Act 1898 requiring the administrator to transfer the house property to the beneficiaries.' 'Whether the house property was held in co-ownership within s 66F(1) of the Conveyancing Act 1919 and trustees for sale should be appointed under s 66G.' "Whether the Court could alter the parties' proprietary shares in the house property or proceeds of sale under s 66G of the Conveyancing Act 1919."]

Ratio Decidendi

The house property was held in co-ownership within s 66F(1) of the Conveyancing Act 1919, and although the defendant's long occupation and asserted evidence of his mother's wishes attracted sympathy, there was nothing making it proper to decline appointment of trustees for sale. Section 66G could not be used to alter the existing intestacy shares, so orders appointing trustees for sale were appropriate.

Court Disposition

Orders made under s 66G of the Conveyancing Act 1919; amended summons otherwise dismissed; no order as to costs.

Orders

  • ['Orders in terms of pars 1A to 1E of the amended summons.' "Liberty to any party and to the trustees to apply on two days' notice." 'Amended summons otherwise dismissed.' 'No order as to the costs of the proceedings.']