Kim & 1 or v Kim [2006] NSWSC 472

Kim & 1 or v Kim [2006] NSWSC 472

The Court has jurisdiction to order sale under s 66G despite matrimonial element, and since mortgages were for the exclusive benefit of the first plaintiff, the other co-owners are entitled to exoneration against liabilities secured by mortgage; order for sale made upon the undertaking of first plaintiff to discharge the mortgages from his own funds.

Jurisdiction
Australia
Judgment Date
14 September 2006
Procedural Posture
Application for Sale Under S 66 G of the Conveyancing Act 1919 (nsw) / Judgment (ex Tempore)
Outcome
Order for sale granted; declaration of exoneration; orders regarding costs and liberty to apply.
Legal Topics
['co Ownership' 'sale of Property' 'exoneration' 'mortgages']
['real Property' 'family Law'] ['co Ownership' 'sale of Property' 'exoneration' 'mortgages']

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Procedural Posture

Application for Sale Under S 66 G of the Conveyancing Act 1919 (nsw) / Judgment (ex Tempore)

Legal Issues

  1. 1 ['Whether the Court has jurisdiction to order sale where proceedings are between husband and wife.' "Whether co-owners are entitled to be exonerated out of the first plaintiff's interest against liabilities under mortgages." 'Whether formal requirements for s 66G order are satisfied.']

Ratio Decidendi

The Court has jurisdiction to order sale under s 66G despite matrimonial element, and since mortgages were for the exclusive benefit of the first plaintiff, the other co-owners are entitled to exoneration against liabilities secured by mortgage; order for sale made upon the undertaking of first plaintiff to discharge the mortgages from his own funds.

Court Disposition

Order for sale granted; declaration of exoneration; orders regarding costs and liberty to apply.

Orders

  • ["Declare that second plaintiff and defendant are entitled to exoneration from first plaintiff's interest in the property for any mortgage liability." "Upon undertaking of first plaintiff to discharge mortgages from own funds and without recourse to second plaintiff or defendant's share, orders per summons." 'Any...