Ross v Ross [2010] NSWCA 301

Ross v Ross [2010] NSWCA 301

The order made under s 66G of the Conveyancing Act was not justified because it impermissibly adjusted the appellant's property interest beyond what that section permits, as such discretionary alteration may only give effect to the parties' existing rights as co-owners, not confer or remove rights based on general notions of justice and equity. Further, the grounds relied upon for varying or setting aside the original orders under s 41(c) were not circumstances arising from the parties' default in executing the sale, and no equitable principle was established that would justify depriving the appellant of her beneficial interest.

Parties
Appellant: Susan Elizabeth Ross; Respondent: Peter John Ross
Jurisdiction
Australia
Judgment Date
12 November 2010
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal allowed
Legal Topics
De Facto Relationships, Adjustment of Property Interests, Statutory Trusts for Sale, Discretion to Vary or Set Aside Orders, Laches and Delay
Family Law Real Property Law De Facto Relationships Adjustment of Property Interests Statutory Trusts for Sale Discretion to Vary or Set Aside Orders Laches and Delay

Case Brief

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Parties

Susan Elizabeth Ross

Appellant

Peter John Ross

Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the primary judge erred in adjusting the parties' interests under s 66G of the Conveyancing Act 1919
  2. 2 Whether the order depriving the appellant of her interest was permitted under the Act or general law
  3. 3 Whether circumstances justified variation of the original orders under s 41(c) of the Property (Relationships) Act 1984

Ratio Decidendi

The order made under s 66G of the Conveyancing Act was not justified because it impermissibly adjusted the appellant's property interest beyond what that section permits, as such discretionary alteration may only give effect to the parties' existing rights as co-owners, not confer or remove rights based on general notions of justice and equity. Further, the grounds relied upon for varying or setting aside the original orders under s 41(c) were not circumstances arising from the parties' default in executing the sale, and no equitable principle was established that would justify depriving the appellant of her beneficial interest.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed;
  • Orders made by Ward J on 31 August 2009 set aside;