Macfarlan JA at [1]; Leeming JA at [63]; Emmett AJA at [191]
Decision:
1. Appeal allowed in part.
2. Set aside order 6b made on 22 September 2016.
3. Otherwise dismiss the appeal.
4. Mrs Boyd to pay Mrs Thorn’s costs of the appeal referable to ground 1. Mrs Thorn to pay Mr Boyd’s costs referable to ground 2. Mr and Mrs Boyd be jointly and severally liable to pay Mrs Thorn’s costs referable to ground 3.
Catchwords:
LAND LAW – appellants tenants-in-common of real property – equitable tracing by respondent – findings that first appellant guilty of unconscionable conduct and breach of fiduciary duty – second appellant only made a party to the proceedings after those findings had been made – whether the second appellant could challenge respondent’s standing to apply for orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the property –whether findings of breach of duty and unconscionability made against the first appellant binding on second appellant
ESTOPPEL – circumstances in which parties are bound by issue estoppels – consideration of principles of privity of interest where current party not a party to earlier proceedings – Tomlinson v Ramsey Food Processing (2016) 256 CLR 507; [2015] HCA 28 – second appellant did not have any legal interest in outcome of earlier proceedings nor later acquire a legal interest affected by an estoppel connected to the earlier proceedings
LAND LAW – whether costs of litigation may be ordered to be paid to incumbrancee out of co-owner’s share of the proceeds of s 66G sale – whether appropriate for co-owners to share costs and expenses for s 66G sale where sale caused by wrongful acts of one co-owner
[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.
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Details
AGLC
Boyd v Thorn [2017] NSWCA 210
Case
[2017] NSWCA 210
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute over real property held by the appellants as tenants-in-common. The respondent sought orders under section 66G of the *Conveyancing Act 1919* (NSW) for the appointment of trustees for sale of the property, following findings that the first appellant had engaged in unconscionable conduct and breached fiduciary duties. The second appellant was joined to the proceedings after these findings were made. The appeal was heard by Macfarlan and Leeming JJA, and Emmett AJA.
The primary legal issues before the court were whether the second appellant could challenge the respondent's standing to apply for orders under section 66G of the *Conveyancing Act 1919* (NSW), and whether the findings of breach of duty and unconscionability made against the first appellant were binding on the second appellant. The court also considered whether the costs of litigation could be ordered to be paid to an incumbrancer out of a co-owner's share of the proceeds of a section 66G sale, and whether co-owners should share the costs and expenses of such a sale when the sale was necessitated by the wrongful acts of one co-owner.
The court determined that the second appellant was not bound by the findings of unconscionable conduct and breach of fiduciary duty made against the first appellant, as the second appellant had not been a party to the earlier proceedings and did not have a sufficient privity of interest. The court applied the principles of issue estoppel, noting that the second appellant did not have a legal interest in the outcome of the earlier proceedings nor did they later acquire a legal interest affected by an estoppel connected to those proceedings. The court also considered the principles regarding the allocation of costs in section 66G sale proceedings, particularly where the sale is prompted by the misconduct of one co-owner.
The appeal was allowed in part, with order 6b made on 22 September 2016 being set aside. The remainder of the appeal was dismissed. The costs of the appeal were allocated between the parties, with Mrs Boyd to pay Mrs Thorn’s costs referable to ground 1, Mrs Thorn to pay Mr Boyd’s costs referable to ground 2, and Mr and Mrs Boyd to be jointly and severally liable for Mrs Thorn’s costs referable to ground 3.
Orders
Orders of the court
1. Appeal allowed in part.
2. Set aside order 6b made on 22 September 2016.
3. Otherwise dismiss the appeal.
4. Mrs Boyd to pay Mrs Thorn’s costs of the appeal referable to ground 1. Mrs Thorn to pay Mr Boyd’s costs referable to ground 2. Mr and Mrs Boyd be jointly and severally liable to pay Mrs Thorn’s costs referable to ground 3.