McLaughlin v Cunningham [2023] NSWSC 350

McLaughlin v Cunningham [2023] NSWSC 350

None of the alleged contractual terms, estoppel, or unconscionable conduct were supported by the evidence or were binding so as to prevent orders for sale; s 66G orders for appointment of trustees for sale should be made as the parties are co-owners and no proprietary or equitable obligation precludes their exercise.

Jurisdiction
Australia
Judgment Date
06 April 2023
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Orders appointing trustees for sale made under s 66G Conveyancing Act 1919 (NSW)
Legal Topics
['co Ownership' 'statutory Trust for Sale' 'abuse of Process' 'contract Formation' 'estoppel' 'unconscionable Conduct']
['equity' 'real Property'] ['co Ownership' 'statutory Trust for Sale' 'abuse of Process' 'contract Formation' 'estoppel' 'unconscionable Conduct']

Case Brief

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Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 ['Whether s 66G orders for trustee sale should be made' 'Whether proceedings are an abuse of process' 'Whether contract preventing sale existed between co-owners and company' 'Whether estoppel prevents a trustee sale' 'Whether unconscionable conduct precludes trustee sale']

Ratio Decidendi

None of the alleged contractual terms, estoppel, or unconscionable conduct were supported by the evidence or were binding so as to prevent orders for sale; s 66G orders for appointment of trustees for sale should be made as the parties are co-owners and no proprietary or equitable obligation precludes their exercise.

Court Disposition

Orders appointing trustees for sale made under s 66G Conveyancing Act 1919 (NSW)

Orders

  • ['Pursuant to s 66G of the Conveyancing Act 1919 (NSW), Duncan Edward Clubb and Jeffrey Phillip Marsden appointed trustees for sale of the property identified in the Summons.' 'The property vested in the trustees subject to any encumbrances affecting the entirety, but free from encumbrances affecting any undivided...