Van Beveren v Denny & 2 Ors [2000] NSWSC 973

Van Beveren v Denny & 2 Ors [2000] NSWSC 973

The Plaintiff acquired his half interest on the basis that, as between himself and the Second Defendant, he was legally obliged to meet 100% of the Police Credit Union mortgage repayments. The Partnership never became profitably able to alter that obligation, and the Plaintiff's limited indirect contribution through Partnership payments did not preserve an equity. Payments made by the First Defendant after July 1995 preserved the Property and relieved the Plaintiff of obligations he should have met. It was therefore equitable to order a sale under s66G, but on terms reducing the Plaintiff's share by the mortgage discharge amount, the First Defendant's mortgage payments, and interest,...

Jurisdiction
Australia
Judgment Date
20 October 2000
Procedural Posture
Equity Proceedings Concerning Termination of a De Facto Relationship, Partnership Dissolution, Company Winding Up and Sale of Co Owned Property / Judgment on Amended Summons
Outcome
Sale under s66G ordered on terms yielding nil proceeds to the Plaintiff.
Legal Topics
['trust for Sale' 'co Ownership' 'mortgage Repayments' 'contributions to Encumbrance' 'conveyancing Act 1919 (nsw) S66 G' 'unconscionability']
['equity' 'property Law' 'de Facto Relationships' 'partnerships' 'company Winding Up'] ['trust for Sale' 'co Ownership' 'mortgage Repayments' 'contributions to Encumbrance' 'conveyancing Act 1919 (nsw) S66 G' 'unconscionability']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Termination of a De Facto Relationship, Partnership Dissolution, Company Winding Up and Sale of Co Owned Property / Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether the Plaintiff undertook legal responsibility for the whole of the repayments on the mortgage over the Property or only half.' 'Whether payments made after July 1995 by the First Defendant, the Partnership or the horse-riding business should be attributed in whole or in part to the Plaintiff.' "Whether a sale under s66G of the Conveyancing Act 1919 (NSW) should be ordered despite the Defendants' objection that the Plaintiff had no equity in the Property." "How the proceeds of sale should be divided to reflect the parties' equitable contributions and obligations."]

Ratio Decidendi

The Plaintiff acquired his half interest on the basis that, as between himself and the Second Defendant, he was legally obliged to meet 100% of the Police Credit Union mortgage repayments. The Partnership never became profitably able to alter that obligation, and the Plaintiff's limited indirect contribution through Partnership payments did not preserve an equity. Payments made by the First Defendant after July 1995 preserved the Property and relieved the Plaintiff of obligations he should have met. It was therefore equitable to order a sale under s66G, but on terms reducing the Plaintiff's share by the mortgage discharge amount, the First Defendant's mortgage payments, and interest,...

Court Disposition

Sale under s66G ordered on terms yielding nil proceeds to the Plaintiff.

Orders

  • ['A sale of the Property is to be ordered on terms that the share of proceeds to which the Plaintiff would otherwise be entitled is reduced by the amount required to discharge the mortgage to the Police Credit Union.' "The Plaintiff's otherwise payable share is to be reduced by the amount of payments, principal and...