Thistleton v Thistleton [2022] NSWSC 101

Thistleton v Thistleton [2022] NSWSC 101

The plaintiff's 2011 statement that she did not want to sell was not a clear assurance that she would never seek sale in the future. Her statements that she would make no claim on the house and associated infrastructure could support an assumption that the defendant alone should receive the benefit of their contribution to value, but the plaintiff accepted that any sale proceeds should be adjusted in the defendant's favour to reflect that contribution. Seeking sale on that basis was not making a claim on the house, so no estoppel precluded s 66G relief. No binding contract, contractual obligation, or fiduciary obligation was established, and the evidence did not show partition would be...

Jurisdiction
Australia
Judgment Date
11 February 2022
Procedural Posture
Application Under S 66 G of the Conveyancing Act 1919 (nsw) for Sale of Co Owned Property / Principal Judgment After Hearing
Outcome
Relief granted under s 66G of the Conveyancing Act 1919 (NSW) for the property to be sold, with the defendant to receive an adjustment reflecting the contribution attributable to the house and associated infrastructure.
Legal Topics
['co Ownership' 'statutory Trust for Sale' 'discretion Under S 66 G' 'equitable Promissory Estoppel' 'partition' 'costs']
['land Law' 'equity'] ['co Ownership' 'statutory Trust for Sale' 'discretion Under S 66 G' 'equitable Promissory Estoppel' 'partition' 'costs']

Case Brief

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Procedural Posture

Application Under S 66 G of the Conveyancing Act 1919 (nsw) for Sale of Co Owned Property / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiff was precluded by estoppel from seeking orders for sale under s 66G of the Conveyancing Act 1919 (NSW).' "Whether the plaintiff's statements gave rise to contractual obligations limiting disposal of the property." 'Whether the appointment of trustees for sale would be inequitable because of contractual or fiduciary obligations arising from arrangements concerning occupation by Mr Clay Thistleton.' 'Whether partition would be more beneficial for the co-owners under s 66G(4).' 'What costs order should be made.']

Ratio Decidendi

The plaintiff's 2011 statement that she did not want to sell was not a clear assurance that she would never seek sale in the future. Her statements that she would make no claim on the house and associated infrastructure could support an assumption that the defendant alone should receive the benefit of their contribution to value, but the plaintiff accepted that any sale proceeds should be adjusted in the defendant's favour to reflect that contribution. Seeking sale on that basis was not making a claim on the house, so no estoppel precluded s 66G relief. No binding contract, contractual obligation, or fiduciary obligation was established, and the evidence did not show partition would be...

Court Disposition

Relief granted under s 66G of the Conveyancing Act 1919 (NSW) for the property to be sold, with the defendant to receive an adjustment reflecting the contribution attributable to the house and associated infrastructure.

Orders

  • ['Orders to be made for the sale of the co-owned property pursuant to s 66G of the Conveyancing Act 1919 (NSW).' 'The orders will provide that the defendant is entitled to an adjustment in her favour in respect of the proceeds of sale to reflect the contribution attributable to the house and associated...