Hogden v Hogden [2023] NSWSC 1149

Hogden v Hogden [2023] NSWSC 1149

The defendant did not establish on the balance of probabilities that the alleged conversations with the deceased occurred or that there was a common intention that the Property be held as joint tenants. The parties therefore held their interests as recorded on title as tenants in common, the cross-summons was dismissed, and, given the defendant's acceptance that a s 66G sale should follow if no common intention was proved, trustees were appointed for sale. The defendant's unreasonable departure from the previous agreement to buy the deceased's interest justified indemnity costs for the plaintiff.

Jurisdiction
Australia
Judgment Date
22 September 2023
Procedural Posture
Equity Real Property List; Application for Trustee Sale of Co Owned Property Under S 66 G of the Conveyancing Act 1919 (nsw) and Cross Summons Asserting a Common Intention Constructive Trust / Principal Judgment After Hearing
Outcome
Orders made for statutory trustee sale; cross-summons dismissed; defendant ordered to pay the plaintiff's costs on an indemnity basis.
Legal Topics
['constructive Trusts' 'common Intention Constructive Trust' 'co Ownership' 'tenants in Common' 'joint Tenancy' 'statutory Trust for Sale' 'appointment of Trustees' 'indemnity Costs']
['equity' 'trusts' 'land Law' 'real Property' 'costs'] ['constructive Trusts' 'common Intention Constructive Trust' 'co Ownership' 'tenants in Common' 'joint Tenancy' 'statutory Trust for Sale' 'appointment of Trustees' 'indemnity Costs']

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Procedural Posture

Equity Real Property List; Application for Trustee Sale of Co Owned Property Under S 66 G of the Conveyancing Act 1919 (nsw) and Cross Summons Asserting a Common Intention Constructive Trust / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendant established on the balance of probabilities that he and the deceased had conversations demonstrating a common intention that the Property be held as joint tenants.' 'Whether a common intention constructive trust should be declared notwithstanding registration as tenants in common.' 'Whether trustees should be appointed for sale of the Property under s 66G of the Conveyancing Act 1919 (NSW).' "Whether the plaintiff's costs should be paid on an indemnity basis."]

Ratio Decidendi

The defendant did not establish on the balance of probabilities that the alleged conversations with the deceased occurred or that there was a common intention that the Property be held as joint tenants. The parties therefore held their interests as recorded on title as tenants in common, the cross-summons was dismissed, and, given the defendant's acceptance that a s 66G sale should follow if no common intention was proved, trustees were appointed for sale. The defendant's unreasonable departure from the previous agreement to buy the deceased's interest justified indemnity costs for the plaintiff.

Court Disposition

Orders made for statutory trustee sale; cross-summons dismissed; defendant ordered to pay the plaintiff's costs on an indemnity basis.

Orders

  • ['Pursuant to s 66G of the Conveyancing Act 1919 (NSW), appoint David Graham Martin and John Stanbridge Boyd as trustees (Trustees) for the sale of the property located at 292 Big Jacks Creek Road, Big Jacks reek, NSW, 2339 (folio identifier 1/119702 and 60/751016) (Property).' 'The Property is vested in the...