Blackwell v Blackwell - [2020] NSWSC 1208

Supreme Court

New South Wales

Medium Neutral Citation: Blackwell v Blackwell [2020] NSWSC 1208
Hearing dates: 4 September 2020
Date of orders: 4 September 2020
Decision date: 04 September 2020
Jurisdiction: Equity
Before: Parker J
Decision:
See [25]

Catchwords:
LAND LAW – Conveyancing Act1919 (NSW), s 66G – application for appointment of trustees for sale

Legislation Cited:
Conveyancing Act1919 (NSW), s 66G

Cases Cited:
Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411
Forgeard v Shanahan (1994) 35 NSWLR 206

Category: Principal judgment
Parties: Adam Thomas Blackwell (Plaintiff)
Nathan John Blackwell (Defendant)
Representation:
Counsel:
RE Raffell
Solicitors:
RMB Lawyers

File Number(s): 2020/5428
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 7 September 2020

This case concerns a property at Helensburgh on the southern outskirts of Sydney. The property is co-owned by the plaintiff and the defendant. The plaintiff seeks orders for the property to be sold and the net proceeds divided between the parties.
The plaintiff is Adam Thomas Blackwell and the defendant is Nathan John Blackwell. They are brothers. The property is a semi-rural block of land at Walker Street, Helensburgh. I was told from the Bar Table that it is seven acres, or 2.8 hectares. There is a house on it. There are also demountable buildings, sheds or cottages, and stables. The land also includes paddocks which have been used for horse agistment.
The property was originally bought in 2001 by the plaintiff and the defendant and their brother Heath Blackwell in equal shares. In April 2007 the plaintiff and defendant bought their brother out. This left each of them holding a 50% share in the property as tenants in common. The buy-out was accompanied by a refinance of the loan which had been used to acquire the property initially.
The incoming bank was the Australia and New Zealand Banking Group Limited (“ANZ”). The bank loans were in the joint names of the plaintiff and the defendant, and were secured by a mortgage over the property.
After the buy-out the plaintiff and the defendant established a joint bank account with the ANZ. They carried out farming activities on the property and also leased part of it out. Income which resulted was paid into the joint account. Expenses, including mortgage repayments referable to the property, were paid out of the joint account.
The defendant has lived on the property since about 2008. In 2015 the relationship between the plaintiff and the defendant began to break down. The joint account went into overdraft in May 2015. The defendant has not contributed any further funds to the payment of expenses associated with the property through the joint account since that time. To the extent that the expenses have not been covered by income from the property, the plaintiff has made the necessary payments from his own funds.
In 2017 the plaintiff procured the defendant's agreement to repay the loan and discharge the mortgage. At that stage the outstanding balance under the joint loan was about $480,000.…

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 Blackwell v Blackwell

Details

AGLC: Blackwell v Blackwell [2020] NSWSC 1208
Case: [2020] NSWSC 1208
Decision Date: 04 September 2020

CaseChat Overview and Summary

In the matter of Blackwell versus Blackwell, the dispute involved a property located in New South Wales. The applicant sought an order under section 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for the sale of a property. The applicant claimed that the property was held as joint tenants and that there was a dispute between the parties as to the sale of the property. The case was heard in the Supreme Court of New South Wales. The legal issues before the court were whether the applicant had established that there was a deadlock in the joint tenancy and whether the court had jurisdiction to make an order for the sale of the property. The applicant argued that there was a deadlock in the joint tenancy as the parties could not agree on the sale of the property. The respondent argued that the applicant had not established that there was a deadlock and that the court did not have jurisdiction to make an order for the sale of the property.

The court found that the applicant had established that there was a deadlock in the joint tenancy as the parties could not agree on the sale of the property. The court also found that it had jurisdiction to make an order for the sale of the property under section 66G of the Conveyancing Act 1919 (NSW). The court considered the best interests of the parties and the property and found that the sale of the property was in the best interests of both parties and the property. The court made an order for the appointment of trustees for the sale of the property. The court considered the factors relevant to the appointment of trustees, including their experience, reputation, and ability to act impartially. The court appointed two trustees for the sale of the property.

Orders