Capolingua v Da Silva [2016] NSWSC 1212

Capolingua v Da Silva [2016] NSWSC 1212

Relief under s 66G of the Conveyancing Act 1919 (NSW) was refused at this stage because compliance with the Deed, specifically the requirement to market the interest for one year as per clause 5(b), had not yet been fulfilled. Enforcing s 66G at this point would be inconsistent with an express contractual limitation and would be inequitable to the defendant.

Jurisdiction
Australia
Judgment Date
31 August 2016
Procedural Posture
Equity / Application for Orders Under S 66 G of the Conveyancing Act 1919 (nsw); Adjournment Decision
Outcome
Application for appointment of trustees for sale adjourned; Cross Claim adjourned.
Legal Topics
['sale by Co Owners' 'appointment of Trustees for Sale Under S 66 G' 'contractual Limitations on Sale' 'rectification of Deed']
['property Law' 'equity'] ['sale by Co Owners' 'appointment of Trustees for Sale Under S 66 G' 'contractual Limitations on Sale' 'rectification of Deed']

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Procedural Posture

Equity / Application for Orders Under S 66 G of the Conveyancing Act 1919 (nsw); Adjournment Decision

Legal Issues

  1. 1 ['Whether the plaintiff is entitled to an order appointing trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) despite non-fulfilment of contractual pre-conditions' "Whether failure to comply with clause 5(b) of the parties' Deed precludes the granting of relief under s 66G"]

Ratio Decidendi

Relief under s 66G of the Conveyancing Act 1919 (NSW) was refused at this stage because compliance with the Deed, specifically the requirement to market the interest for one year as per clause 5(b), had not yet been fulfilled. Enforcing s 66G at this point would be inconsistent with an express contractual limitation and would be inequitable to the defendant.

Court Disposition

Application for appointment of trustees for sale adjourned; Cross Claim adjourned.

Orders

  • ['Proceedings adjourned to April 2017 for further consideration.' 'Cross Claim also adjourned for final determination with the main application.']