Robin Scott Forrest v William Lawrence Nix [2012] NSWSC 493

Robin Scott Forrest v William Lawrence Nix [2012] NSWSC 493

Clause 3.1.3 of the Deed created a sufficiently certain trust of a one-third equitable interest in the property for Scott, subject to the terms of the Deed and possible adjustment under cl 4, so s 66G could apply. However, cl 3.2 gave Bill and Carole management and control of the property, including control over sale, and the restriction was not void because the Deed was personal to the parties and limited to their joint lives. Given that the Deed remained on foot, contained an agreement that the property would not be sold while Bill and Carole were alive except by them, and both sides had breached the Deed, the court refused to appoint trustees for sale but made a declaration of Scott's...

Jurisdiction
Australia
Judgment Date
16 May 2012
Procedural Posture
Application Under S 66 G of the Conveyancing Act 1919 (nsw) for Appointment of Trustees for Sale, With an Alternative Claim for a Declaration of Trust / Principal Judgment
Outcome
Application for appointment of trustees for sale under s 66G refused; declaration of trust made subject to adjustment under cl 4; costs stood over.
Legal Topics
['co Ownership' 'statutory Trust for Sale' 'section 66 G Application' 'equitable Interest in Land' 'restraint on Alienation' 'construction of Deed']
['real Property' 'equity and Trusts' 'contract Law'] ['co Ownership' 'statutory Trust for Sale' 'section 66 G Application' 'equitable Interest in Land' 'restraint on Alienation' 'construction of Deed']

Case Brief

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Procedural Posture

Application Under S 66 G of the Conveyancing Act 1919 (nsw) for Appointment of Trustees for Sale, With an Alternative Claim for a Declaration of Trust / Principal Judgment

Legal Issues

  1. 1 ['Whether Scott had an interest in the property to which s 66G of the Conveyancing Act 1919 (NSW) applied.' 'Whether the Deed contained an agreement that the property would not be sold except in accordance with the Deed.' "Whether any restriction on Scott's right to seek an order under s 66G was void as an impermissible restraint on alienation." 'Whether the court should refuse to appoint trustees for sale where the Deed remained on foot and both sides had breached it.' 'Whether a declaration should be made that Bill and Carole held an interest in the property on trust for Scott.']

Ratio Decidendi

Clause 3.1.3 of the Deed created a sufficiently certain trust of a one-third equitable interest in the property for Scott, subject to the terms of the Deed and possible adjustment under cl 4, so s 66G could apply. However, cl 3.2 gave Bill and Carole management and control of the property, including control over sale, and the restriction was not void because the Deed was personal to the parties and limited to their joint lives. Given that the Deed remained on foot, contained an agreement that the property would not be sold while Bill and Carole were alive except by them, and both sides had breached the Deed, the court refused to appoint trustees for sale but made a declaration of Scott's...

Court Disposition

Application for appointment of trustees for sale under s 66G refused; declaration of trust made subject to adjustment under cl 4; costs stood over.

Orders

  • ['Declare that the plaintiffs hold a one-third interest of the property at Ingleside on trust for the defendant subject to any adjustment to be made in accordance with cl 4 of the Deed dated 11 October 2006 made between the plaintiffs and the defendant.' 'Stand the matter over to a date to be fixed with my Associate...