Crocombe v Pine Forests of Australia Pty Ltd (No 3)

The matter of Crocombe v Pine Forests of Australia Pty Ltd (No 3) involved Crocombe, a tenant in common of certain land, and Pine Forests of Australia Pty Ltd. The dispute arose out of a sale in lieu of partition of a parcel of land held in undivided shares, where some of the shares were encumbered by mortgages. The case was heard by the Supreme Court of New South Wales.

The central legal issue before the court was whether the trustees for sale, who were to sell the entire property, could sell the land free of the encumbrances affecting the individual shares. Additionally, the court had to determine the extent of the mortgagees' rights in the context of a sale in lieu of partition under the Real Property Act 1900 (NSW).

The court found that the trustees for sale were entitled to sell the entire property free of encumbrances affecting the individual shares, as the mortgages did not bind the whole property but only the specific shares they encumbered. This decision was based on the principle that the sale in lieu of partition operates on the undivided whole rather than the individual shares. Furthermore, the court held that the mortgagees' rights were against the fund raised by the sale of the whole property and did not extend to attaching to the individual shares unless specifically stated.

The final orders of the court confirmed that the trustees for sale could proceed with the sale of the property, and that the mortgagees' claims were against the proceeds of the sale rather than the individual shares of the tenants in common.