HOGAN v BASEDEN [1997] NSWCA 151

HOGAN v BASEDEN [1997] NSWCA 151

The trial judge erred in making the order restricting sale because the findings did not sufficiently establish grounds for the exercise of discretion against an order for sale under s66G. Without proprietary, contractual, or fiduciary obligations inconsistent with sale, the restriction should not have been imposed.

Parties
Appellant: Hogan; Respondent: Baseden
Jurisdiction
Australia
Judgment Date
24 November 1997
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed; order restricting sale set aside.
Legal Topics
Co Ownership, Statutory Trust for Sale, Discretion Under S66 G, Estoppel, Declaration of Tenancy in Common
Equity Real Property Co Ownership Statutory Trust for Sale Discretion Under S66 G Estoppel Declaration of Tenancy in Common

Case Brief

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Parties

Hogan

Appellant

Baseden

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the trial judge erred in making an order that property not be sold without written consent of the respondent
  2. 2 Whether appellants entitled to order for sale of property under s66G of the Conveyancing Act 1919

Ratio Decidendi

The trial judge erred in making the order restricting sale because the findings did not sufficiently establish grounds for the exercise of discretion against an order for sale under s66G. Without proprietary, contractual, or fiduciary obligations inconsistent with sale, the restriction should not have been imposed.

Court Disposition

Appeal allowed; order restricting sale set aside.

Orders

  • O04 of Cowdroy AJ set aside.
  • Respondent to pay appellant's costs.