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Barel v Segal (No 1)

Barel v Segal (No 1)

Case [2011] NSWSC 1181 19 October 2011

Unjust Enrichment

Equitable Estoppel

Statutory Construction

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Barel v Segal (No 1) [2011] NSWSC 1181
Hearing dates: 4, 5 and 6 October 2011
Decision date: 19 October 2011
Jurisdiction: Equity Division
Before: Pembroke J
Decision:
See paragraphs [39] and [40]

Catchwords: CONVEYANCING - operation of Conveyancing Act 1919 Section 66G(4), (5) and (6) - ambulatory and flexible - may proceed in stages
CONVEYANCING - meaning of "more beneficial" in Section 66G(4)
CONVEYANCING - sale or partition - whether sale a preferred remedy - no predisposition towards sale
CONVEYANCING - contingent order for partition - implementation subject to grant of subdivision approval - order available in principle
CONVEYANCING - consent of mortgagee - adjournment to allow evidence of consent
CONVEYANCING - necessity of having determination of remaining issues including the respective contributions of each party to the acquisition of the land and the construction of the dwellings on it - relevant to what is "more beneficial" - relevant to any adjustment or equality money
Legislation Cited: Conveyancing Act 1919
Partition Act 1878 (NSW)
Partition Act 1900 (NSW)
Partition Act 1868 (UK)
Strata Schemes (Freehold Development) Act 1973
Cases Cited: Asimus v Asimus [1999] NSWSC 1020
Cryer v Ossher [1997] NSWSC 613
Drinkwater v Ratcliffe (1875) LR 20 Eq 528
Fulton v 523 Nominees Pty. Ltd. [1984] VR 200
Gilbert v Smith (1879) 11 LR Ch D 78
Hayward v Skinner (1981) 1 NSWLR 590
Lucky Developments v Hsu [1999] NSWSC 412
Nullagine Investments Pty Limited v Western Australian Club Inc (1993) 177 CLR 635
Pannizutti v Trask (1987) 10 NSWLR 531
Pemberton v Barnes (1871) LR 6 Ch App 685
Re Cordingley (1948) 48 SR (NSW) 248
Re Darby (1999) 2 Qd R 350
Sovova v Ojvan (1987) 72 ACTR 10
Squire v Rogers (1979) 27 ALR 330
Texts Cited: Peter Butt, Land Law, 6th edition, 2010
Category: Principal judgment
Parties: Elie Barel - plaintiff
Phillip Segal - defendant
Representation: J Van Aalst - for the plaintiff
G Carolan - for the defendant
Coopers Lawyers - for the plaintiff
Low Doherty & Stratford - for the defendant

File Number(s): 2010/12807

Judgment

Introduction

This is an application for partition of land. More precisely, it is an application for the appointment of a trustee to hold certain property on the statutory trust for partition: Section 66G(4) Conveyancing Act 1919. The defendant on the other hand seeks the appointment of a trustee to hold the property on the statutory trust for sale: Section 66G(1) of the Act. The choice therefore is between sale or partition.

The land is situated at Dover Heights in Sydney. It is a Torrens title block with harbour views. The plaintiff and the defendant purchased it as equal co-owners in 1994. Two separate dwellings have been constructed on the land. One dwelling has been occupied by the plaintiff and his family since 2005. The other is not yet complete but has reached lock-up stage and remains to be fitted out. Since at least 1997 the plaintiff…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barel v Segal (No 1)

Details

AGLC: Barel v Segal (No 1) [2011] NSWSC 1181
Case: [2011] NSWSC 1181
Decision Date: 19 October 2011

CaseChat Overview and Summary

The case of Barel v Segal (No 1) involved a dispute between co-owners of a property in New South Wales. The property, which included two dwellings on a single lot, was subject to a mortgage. The plaintiffs sought an order for the sale of the property, while the defendants argued for a partition. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine various legal issues, including the interpretation of the term "more beneficial" in Section 66G(4) of the Conveyancing Act 1919, whether there was a predisposition towards a sale or partition, and the circumstances under which a contingent order for partition could be implemented. The court also needed to consider whether an adjournment was appropriate to allow evidence of the mortgagee's consent.

The court found that the relevant statutory provisions were to be interpreted in an ambulatory and flexible manner, allowing for the sale or partition to proceed in stages. The term "more beneficial" was not to be given a rigid interpretation but rather considered in the context of the overall circumstances of the case. The court held that there was no predisposition towards either a sale or partition. The court further held that a contingent order for partition was available in principle, subject to the grant of subdivision approval. The court also considered that an adjournment was appropriate to allow evidence of the mortgagee's consent, as this was relevant to the determination of the remaining issues in the case.

The court made orders for an adjournment to allow evidence of the mortgagee's consent, and for the case to proceed to a final hearing to determine the remaining issues, including the respective contributions of each party to the acquisition of the land and the construction of the dwellings on it. The court held that these issues were relevant to determining what was "more beneficial" and to any adjustment or equality money that may be required.

Orders