MacDonald v MacDonald [2009] NSWSC 794

MacDonald v MacDonald [2009] NSWSC 794

A co-owner's entitlement under s 66G of the Conveyancing Act 1919 requires the status of co-owner with a right to possession, not actual occupation. The plaintiff, as a registered proprietor holding as a tenant in common, has the requisite standing. There are no equitable or legal grounds to refuse the relief sought, so statutory trustees for sale and an account of rents should be ordered.

Parties
Plaintiff: Kenneth Nigel MacDonald; First Defendant: Stephen George MacDonald; Second Defendant: Denise Carol Carver; Third Defendant: Garant Pty Limited
Jurisdiction
Australia
Judgment Date
19 March 2009
Procedural Posture
Equity Proceedings—appointment of Statutory Trustees for Sale and Taking of Account / Judgment After Hearing on Statement of Claim and Notice of Motion
Outcome
Orders made for appointment of statutory trustees for sale, taking of account, costs as specified, and further directions; defendants' notice of motion dismissed.
Legal Topics
Conveyancing, Co Ownership, Statutory Trust for Sale, Account of Rents, Standing of Co Owner
Property Law Equity Conveyancing Co Ownership Statutory Trust for Sale Account of Rents Standing of Co Owner

Case Brief

Summary, issues, holding and outcome

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Parties

Kenneth Nigel MacDonald

Plaintiff

Stephen George MacDonald

First Defendant

Denise Carol Carver

Second Defendant

Garant Pty Limited

Third Defendant

Procedural Posture

Equity Proceedings—appointment of Statutory Trustees for Sale and Taking of Account / Judgment After Hearing on Statement of Claim and Notice of Motion

Legal Issues

  1. 1 Whether plaintiff as a co-owner has standing to seek appointment of statutory trustees for sale under s 66G of the Conveyancing Act 1919
  2. 2 Whether 'co-ownership in possession' requires actual physical possession or only a right to possession
  3. 3 Whether it would be inequitable to appoint statutory trustees for sale

Ratio Decidendi

A co-owner's entitlement under s 66G of the Conveyancing Act 1919 requires the status of co-owner with a right to possession, not actual occupation. The plaintiff, as a registered proprietor holding as a tenant in common, has the requisite standing. There are no equitable or legal grounds to refuse the relief sought, so statutory trustees for sale and an account of rents should be ordered.

Court Disposition

Orders made for appointment of statutory trustees for sale, taking of account, costs as specified, and further directions; defendants' notice of motion dismissed.

Orders

  • Orders as in prayers 1, 2, 3 and 4 in the statement of claim granted.
  • Defendants' notice of motion filed 9 December 2008 dismissed.