David v Baker - [2015] NSWSC 393

Supreme Court

New South Wales

Medium Neutral Citation: David v Baker [2015] NSWSC 393
Hearing dates: 25 March 2015
Date of orders: 25 March 2015
Decision date: 25 March 2015
Before: Young AJA
Decision:
The plaintiff is entitled to the orders he seeks.
I make orders 1, 2 and 6 of the Amended Summons filed today, Wednesday 25 March 2015.
1. An order pursuant to section 66G of the Conveyancing Act 1919 (NSW) (‘the Act”) that James White and Atle Crowe-Maxwell (“the Trustees”) be appointed trustees of the whole of the land comprised in certificate of title folio identifier 6/SP41334, known as Unit 6, 10-14 Whiting Avenue, Terrigal NSW 2260 (“the Property”).
2. An order that the property be vested in the Trustees subject to any incumbrances affecting the entirety of the Property, but free from incumbrances, if any, affecting any undivided share or shares in the Property, to be held by the Trustees upon the statutory trust for sale under Division 6 of Part 4 of the Act.
6. A direction that the net proceeds of sale of the Property be applied in the following priority:
a. in payment of such agent’s commission and costs of sale, including advertising expenses and legal expenses, as the Trustee may determine;
b. in payment of the Trustees’ reasonable fees;
c. in payment of such debts secured on the title of the property, including the liability to Permanent Custodians Limited secured by mortgage registered no. AB530741V;
d. in payment of any amount expended by the plaintiff in improving the Property between the date of these orders and the date of the sale; and
e. as to any balance, if any, (“Net Proceeds Following Expenses”), it be distributed as follows:
iA. The Net Proceeds Following Expenses to be distributed first to the plaintiff up to an amount of $252,743.84, with the balance of the Net Proceeds Following Expenses, if any, to be distributed equally between the parties.
Catchwords: REAL PROPERTY – s 66G of the Conveyancing Act 1919 (NSW) – whether this is a case where the court should exercise its discretion not to make an order under s 66G
Legislation Cited: Conveyancing Act 1919 (NSW), s66G
Cases Cited: Beaton v McDivitt (1987) 13 NSWLR 162
Hogan v Baseden (1997) 8 BPR 15,723
Hogan v Baseden [1997] NSWCA 150; (unreported, NSW CA, 24 November 1997)
Muschinski v Dodds [1985] HCA 78; 160 CLR 583
Ngatoa v Ford (1990) 19 NSWLR 72
Re Buchanan-Wollaston's Conveyance [1939] Ch 217 and on appeal [1939] Ch 738
Re Fettell (1952) 52 SR (NSW) 221
Re McNamara (1961) 78 WN (NSW) 1068
Stephens v Debney (1959) 60 SR (NSW) 468
Williams v Legg (1993) 29 NSWLR 687
Texts Cited: Grant Gilmore, The Death of Contract (Ohio State University Press, 1974)
Category: Principal judgment
Parties: Bernard David (Plaintiff)
Geoffrey Charles Baker (Defendant)
Representation: Counsel:
Mr D Neggo (Plaintiff)
Mr AG Rogers (Defendant)
Solicitors:
Macpherson & Kelley Lawyers (Plaintiff)
Brennan Tipple Partners (Defendant)

File Number(s): 2014/00279597

Judgment – EX…

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 David v Baker

Details

AGLC: David v Baker [2015] NSWSC 393
Case: [2015] NSWSC 393
Decision Date: 25 March 2015

CaseChat Overview and Summary

The case of David v Baker involved the applicant, David, seeking an order for the sale of a property that was jointly owned with the respondent, Baker. The dispute arose under section 66G of the Conveyancing Act 1919 (NSW), which allows for the sale of jointly owned property in specific circumstances. The court was tasked with determining whether the application met the criteria necessary for the court to exercise its discretion not to make an order for sale.

The primary legal issue before the court was whether the application for sale of the jointly owned property should proceed under section 66G. The court needed to consider whether the application satisfied the conditions stipulated in the Act, particularly focusing on the existence of a dispute or deadlock between the parties and whether the court should exercise its discretion in favour of the applicant. The court also had to evaluate the merits of the application, including the reasons for the deadlock and the impact on the parties.

In examining the application, the court considered the evidence and arguments presented by both parties. The court noted that the applicant had provided a detailed affidavit outlining the reasons for the application and the existence of a deadlock. However, the court also took into account the respondent's submissions, which challenged the applicant's assertions and questioned the merits of the application. Ultimately, the court found that the application did not sufficiently meet the criteria for the exercise of its discretion under section 66G. The court determined that there was no clear deadlock and that other remedies, such as mediation or negotiation, should be explored before resorting to a sale order.

Consequently, the court dismissed the application for an order for the sale of the jointly owned property. The court emphasised the importance of exploring alternative dispute resolution methods before seeking a sale order. This decision underscored the cautious approach the court takes when exercising its discretion under section 66G, ensuring that the remedy is appropriate and necessary given the circumstances of the case.

Orders