Shah v Sanjiv [2014] NSWSC 1535

Shah v Sanjiv [2014] NSWSC 1535

The summons was dismissed because s 66G jurisdiction depended on the plaintiff being a co-owner in equity, but the defendant was the sole registered proprietor, the summons did not seek a declaration of beneficial ownership, the proceeding was not commenced in the proper form for trust relief, and the affidavit evidence was insufficient to determine any beneficial interest. Leave to amend was refused because such a claim could not be raised on the run. Even if s 66G were otherwise available, the pending Family Court proceedings under s 79 of the Family Law Act meant that the Family Court was the court better placed to decide whether any sale should be ordered.

Jurisdiction
Australia
Judgment Date
22 October 2014
Procedural Posture
Application Pursuant to S 66 G of the Conveyancing Act 1919 (nsw) for Appointment of Trustees for Sale of Real Property / Equity Division Duty List Hearing of Summons
Outcome
Summons dismissed; plaintiff ordered to pay the defendant's costs.
Legal Topics
['appointment of Trustees for Sale' 'co Ownership' 'resulting Trusts' 'presumption of Advancement' 'common Intention Constructive Trust' 'matrimonial Property Proceedings' 'costs']
['real Property' 'equity' 'family Law' 'civil Procedure'] ['appointment of Trustees for Sale' 'co Ownership' 'resulting Trusts' 'presumption of Advancement' 'common Intention Constructive Trust' 'matrimonial Property Proceedings' 'costs']

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Procedural Posture

Application Pursuant to S 66 G of the Conveyancing Act 1919 (nsw) for Appointment of Trustees for Sale of Real Property / Equity Division Duty List Hearing of Summons

Legal Issues

  1. 1 ['Whether the Court had jurisdiction under s 66G of the Conveyancing Act 1919 (NSW) to appoint trustees for sale where the defendant was the sole registered proprietor of the land.' 'Whether the plaintiff could amend the summons during submissions to seek a declaration that he had a beneficial interest in the property.' 'Whether the evidence permitted a finding that the plaintiff was a co-owner in equity of the property.' 'Whether, given pending Family Court proceedings under s 79 of the Family Law Act 1975 (Cth), the Supreme Court should grant the requested relief.' 'Whether indemnity costs or gross sum costs should be ordered.']

Ratio Decidendi

The summons was dismissed because s 66G jurisdiction depended on the plaintiff being a co-owner in equity, but the defendant was the sole registered proprietor, the summons did not seek a declaration of beneficial ownership, the proceeding was not commenced in the proper form for trust relief, and the affidavit evidence was insufficient to determine any beneficial interest. Leave to amend was refused because such a claim could not be raised on the run. Even if s 66G were otherwise available, the pending Family Court proceedings under s 79 of the Family Law Act meant that the Family Court was the court better placed to decide whether any sale should be ordered.

Court Disposition

Summons dismissed; plaintiff ordered to pay the defendant's costs.

Orders

  • ['Summons dismissed.' "Plaintiff pay the defendant's costs."]