Cain v Cain [2007] NSWSC 623

Cain v Cain [2007] NSWSC 623

The court had jurisdiction to make an order under s 66G and no cogent reason was shown to refuse it. The fifth defendant was not a party to the partnership deed and had not shown a right to enforce it or require arbitration. The plaintiff's trustee-beneficiary conflict was not disqualifying in the family and partnership context. The fifth defendant's own buyout proposal recognised that the co-ownership could not continue, so an order for sale should be made with directions for valuation, consultation, delayed sale, possible set-off bidding and costs from the proceeds.

Jurisdiction
Australia
Judgment Date
08 June 2007
Procedural Posture
Equity Division Proceedings Seeking Declaration of Co Ownership and an Order for Sale Under S 66 G of the Conveyancing Act 1919 / Ex Tempore Judgment on Application for Appointment of Trustee for Sale
Outcome
Plaintiff appointed trustee for sale under s 66G of the Conveyancing Act 1919, with consequential directions.
Legal Topics
['co Ownership' 'trust for Sale' 'section 66 G Conveyancing Act 1919' 'caveat Removal' 'partnership Deed' 'consultation Before Sale']
['real Property' 'equity' 'civil Procedure'] ['co Ownership' 'trust for Sale' 'section 66 G Conveyancing Act 1919' 'caveat Removal' 'partnership Deed' 'consultation Before Sale']

Case Brief

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Procedural Posture

Equity Division Proceedings Seeking Declaration of Co Ownership and an Order for Sale Under S 66 G of the Conveyancing Act 1919 / Ex Tempore Judgment on Application for Appointment of Trustee for Sale

Legal Issues

  1. 1 ['Whether an order should be made under s 66G of the Conveyancing Act 1919 vesting the land in trustees for sale.' 'Whether the proposed sale was incompatible with the partnership deed or equitable obligations said to bind the plaintiff.' 'Whether the fifth defendant could rely on the partnership deed or require arbitration although he was not a party to it.' "Whether the plaintiff's position as trustee and beneficiary created a disqualifying conflict." 'What directions should govern valuation, consultation, bidding and sale.']

Ratio Decidendi

The court had jurisdiction to make an order under s 66G and no cogent reason was shown to refuse it. The fifth defendant was not a party to the partnership deed and had not shown a right to enforce it or require arbitration. The plaintiff's trustee-beneficiary conflict was not disqualifying in the family and partnership context. The fifth defendant's own buyout proposal recognised that the co-ownership could not continue, so an order for sale should be made with directions for valuation, consultation, delayed sale, possible set-off bidding and costs from the proceeds.

Court Disposition

Plaintiff appointed trustee for sale under s 66G of the Conveyancing Act 1919, with consequential directions.

Orders

  • ['The plaintiff be appointed trustee for sale under s 66G of the Conveyancing Act of the land in Schedule A to the amended summons subject to encumbrances affecting the entirety but free from encumbrances affecting any undivided shares.' 'Caveat 6073492 be removed by 4.00 pm on 15 June 2007.' 'The parties approach...