Baker v David

The appeal concerned an application for the appointment of trustees for sale under section 66G of the *Conveyancing Act 1919* (NSW). The dispute arose between the parties regarding their respective rights and interests in a property, with the appellant arguing that an order appointing trustees for sale would be inconsistent with a contractual right to exclusive possession. The matter was heard by McColl and Meagher JJA and Sackville AJA.

The primary legal issues before the court were whether the primary judge had adequately addressed the arguments concerning the enforceability and construction of the contract relied upon by the appellant, and whether the appointment of trustees for sale would be inconsistent with the appellant's asserted contractual right to exclusive possession.

The Court of Appeal allowed the appeal, setting aside the orders made by the primary judge. Their Honours reasoned that the primary judge had failed to properly consider the contractual arguments raised by the appellant. The Court held that the question of whether the contractual right to exclusive possession was enforceable and how it should be construed were critical to determining whether the appointment of trustees for sale was appropriate. Consequently, the proceedings were remitted to the Equity Division for determination by way of pleadings, with directions for the filing of a statement of claim and defence, and for further directions before the Real Property List Judge. The costs of the proceedings before the primary judge were made costs in the proceedings, and each party was ordered to bear their own costs of the appeal. Leave was granted for the court-appointed trustees to apply for payment of their fees and expenses.