Raymond Loveridge v Ian Loveridge [2013] NSWSC 1752

Raymond Loveridge v Ian Loveridge [2013] NSWSC 1752

Although the parties' agreement made provision for an intractable dispute and the defendant had complied with clause 7 by assuming responsibility for outgoings including the mortgage after the plaintiff vacated, the plaintiff had been unable to obtain the benefit of clause 7(b) by using his equity in the property to finance other suitable accommodation. That inability took the matter outside the terms of the agreement and engaged clause 3's recognition that the property could be sold by agreement or order of the Court. The agreement therefore did not create a contractual right or equity in the defendant sufficient to dissuade the Court from exercising its discretion to order sale under s...

Jurisdiction
Australia
Judgment Date
15 November 2013
Procedural Posture
Application for Orders Under S 66 G of the Conveyancing Act 1919 (nsw) for Sale of Co Owned Real Property / Applications List; Principal Judgment
Outcome
Order for sale granted.
Legal Topics
['tenancy in Common' 'proceedings for Sale' 'conveyancing Act 1919 (nsw), S 66 G' 'contractual or Equitable Rights Affecting Co Owners']
['real Property'] ['tenancy in Common' 'proceedings for Sale' 'conveyancing Act 1919 (nsw), S 66 G' 'contractual or Equitable Rights Affecting Co Owners']

Case Brief

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Procedural Posture

Application for Orders Under S 66 G of the Conveyancing Act 1919 (nsw) for Sale of Co Owned Real Property / Applications List; Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff, as a tenant in common, should be granted orders under s 66G of the Conveyancing Act 1919 (NSW) for sale of the Concord property.' "Whether the parties' agreement of 20 March 2008 created contractual or equitable rights preventing the Court from exercising its discretion in favour of sale."]

Ratio Decidendi

Although the parties' agreement made provision for an intractable dispute and the defendant had complied with clause 7 by assuming responsibility for outgoings including the mortgage after the plaintiff vacated, the plaintiff had been unable to obtain the benefit of clause 7(b) by using his equity in the property to finance other suitable accommodation. That inability took the matter outside the terms of the agreement and engaged clause 3's recognition that the property could be sold by agreement or order of the Court. The agreement therefore did not create a contractual right or equity in the defendant sufficient to dissuade the Court from exercising its discretion to order sale under s...

Court Disposition

Order for sale granted.

Orders

  • ['Orders in accordance with paragraphs 1 and 2 of the summons.' "The defendant is to pay the plaintiff's costs of 14 October 2013 and 4 November 2013." 'Otherwise the costs of the parties are to be paid on the usual basis out of the proceeds of sale.']