Marilyn Joy Lucy Brown v Michael James Brown [2018] NSWSC 41

Marilyn Joy Lucy Brown v Michael James Brown [2018] NSWSC 41

In the absence of any equitable or other bar, a majority tenant in common is entitled to an order for sale under s 66G of the Conveyancing Act 1919 (NSW); and where there is no evidentiary basis for opposition, indemnity costs should follow against the party who failed to cooperate.

Jurisdiction
Australia
Judgment Date
01 February 2018
Procedural Posture
Principal Judgment / Decision on Application for Appointment of Trustees for Sale and Costs
Outcome
Orders made appointing trustees for sale as sought; defendant to pay plaintiffs' costs on indemnity basis out of defendant's share of the proceeds of sale.
Legal Topics
['appointment of Trustee for Sale' 'sale of Co Owned Property' 'indemnity Costs']
['equity' 'land Law'] ['appointment of Trustee for Sale' 'sale of Co Owned Property' 'indemnity Costs']

Case Brief

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Procedural Posture

Principal Judgment / Decision on Application for Appointment of Trustees for Sale and Costs

Legal Issues

  1. 1 ['Whether to order appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) at the request of majority co-owners' 'Whether indemnity costs should be payable by the defendant']

Ratio Decidendi

In the absence of any equitable or other bar, a majority tenant in common is entitled to an order for sale under s 66G of the Conveyancing Act 1919 (NSW); and where there is no evidentiary basis for opposition, indemnity costs should follow against the party who failed to cooperate.

Court Disposition

Orders made appointing trustees for sale as sought; defendant to pay plaintiffs' costs on indemnity basis out of defendant's share of the proceeds of sale.

Orders

  • ['Plaintiffs to have relief sought (appointment of trustees for sale)' "Defendant to pay plaintiffs' costs of proceedings on indemnity basis" "Costs to be recovered from defendant's share of sale proceeds" "A mechanism to retain funds from defendant's share pending costs assessment" 'Plaintiffs to bring in draft...