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Cain v Cain

Cain v Cain

Case [2007] NSWSC 623 8 June 2007

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CITATION: Cain v Cain [2007] NSWSC 623

HEARING DATE(S): 08/06/07

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 8 June 2007

DECISION: Plaintiff appointed trustee for sale under s 66G of Conveyancing Act.

CATCHWORDS: REAL PROPERTY [310]- Sale or partition- Plaintiff equitable co-owner seeking sale under s 66G of Conveyancing Act- Fifth defendant claims that sale incompatible with partnership deed- Fifth defendant not a party to the partnership deed- Other co-owners opposing plaintiff's proposed method of sale- Order for sale made on basis to accommodate all parties.

LEGISLATION CITED: Civil Procedure Act 2005, s 56
Conveyancing Act 1919, ss 36C, 66B(2), 66G, 66H, 66I
Partition Act 1893 (India), s 3
Western Lands Act 1901, s 18K

CASES CITED: Callahan v O'Neill [2002] NSWSC 877
Hogan v Baseden (1997) 8 BPR 15,723
Hordern v Hordern [1910] AC 645; 10 SR (NSW) 677
Rollo v Minister of Town and Country Planning [1948] 1 All ER 13
Stephens v Debney (1959) 60 SR (NSW) 468
Subal Chandra v Gostha (1956) 60 CWN 829
Vyse v Foster (1874) LR 7 HL 318
Williams v Legg (1993) 29 NSWLR 687
Woodson (Sales) Pty Ltd v Woodson (Australia) Pty Ltd (1996) 7 BPR 14,685

PARTIES: George Julius Cain (P)
Brigitte Cain (D1)
James Edward Cain (D2)
Raymond Eric Cain (D3)
Kenneth Lee Cain (D4)
John Henry Cain (D5)

FILE NUMBER(S): SC 3396/06

COUNSEL: M W Sneddon (P)
R C A Higgins (D5)

SOLICITORS: J A Hennessey & Co (P)
M J Duffy & Son (D5)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 8 June 2007

3396/06 – CAIN v CAIN

JUDGMENT

1 HIS HONOUR: The plaintiff seeks (1) an order that he holds various parcels of land at Cobar on trust for himself and the defendants as tenants in common so that he would have a one-seventh interest and the fifth defendant a one-seventh interest; and (2) an order under s 66G of the Conveyancing Act 1919 that the land be vested in trustees for sale. The land concerned consists of a number of freehold parcels plus one perpetual lease under the Western Lands Act 1901.

2 The lands the subject of these proceedings were originally purchased because they joined or were close to other lands in the Cobar district which were owned and operated by members of the Cain family and their associated companies. There was a deed of partnership of 1 January 1976, though the fifth defendant, J H Cain, was not a party to that deed, which allowed inter alia the partners to use each others' lands for partnership purposes without the lands becoming a partnership asset.

3 The subject land was purchased by the plaintiff in 1978 for $100,000, but, by deed of declaration of trust of 5 February 1979, he acknowledged that he held the land on trust for the Cain Pastoral Company, which actually paid the purchase price therefor. The Cain Pastoral Company has ceased as…

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 Cain v Cain

Details

AGLC: Cain v Cain [2007] NSWSC 623
Case: [2007] NSWSC 623
Decision Date: 8 June 2007

CaseChat Overview and Summary

The case of Cain v Cain involved a dispute among co-owners of a property, with the plaintiff seeking an order for sale under section 66G of the Conveyancing Act. The fifth defendant raised an objection, claiming that the proposed sale was incompatible with a partnership deed, although they were not a party to that deed. Other co-owners also opposed the plaintiff's preferred method of sale, leading to a complex situation that required the court to balance the interests of all parties involved.

The primary legal issue before the court was whether the sale of the co-owned property should proceed under the terms proposed by the plaintiff, considering the objections raised by other co-owners and the fifth defendant's reference to a partnership deed to which they were not a party. The court needed to determine if the objections were sufficient to prevent the sale and, if not, how to accommodate the interests of all co-owners in the sale process.

In its reasoning, the court held that the objections raised by the co-owners and the fifth defendant were not strong enough to prevent the sale. The court noted that the fifth defendant's claim regarding the partnership deed was not relevant as they were not a party to that agreement. Furthermore, the court found that the proposed method of sale could be adjusted to accommodate the interests of all parties, thus allowing the sale to proceed. The court made an order for sale, ensuring that the sale would be conducted in a manner that was fair and equitable to all co-owners.

The final orders of the court mandated the sale of the property, with specific directions given to ensure that the sale process would accommodate the interests of all co-owners. The court's decision was grounded in the principle that the sale should proceed unless there was a compelling reason to prevent it, and in this case, the objections were not deemed sufficient to warrant halting the sale. The court also directed that the sale should be conducted in a manner that balanced the interests of all parties involved.

Orders