Eva Joy Ambrus v Lee Ellen Buchanan - [2022] NSWSC 1628

Supreme Court

New South Wales

Medium Neutral Citation: Eva Joy Ambrus v Lee Ellen Buchanan [2022] NSWSC 1628
Hearing dates: 21-23 November 2022 (3 days)
Date of orders: 29 November 2022
Decision date: 29 November 2022
Jurisdiction: Equity - Real Property List
Before: Williams J
Decision:
See paragraph [130]

Catchwords:
REAL PROPERTY – co-ownership – application for appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW) – where defendants oppose appointment of trustees on grounds of hardship or unfairness and also rely on promissory estoppel, alleged breach of fiduciary duty and alleged unconscionability – where land is owned by 13 co-owners as tenants in common and plaintiff holds a 1/56th share – where co-owners adopted a practice of occupying different areas of the land and independently improved those areas without any planning approvals – mere hardship or unfairness not a basis to refuse application – no other basis for refusal of s 66G order established – orders made appointing trustees for sale

Legislation Cited:
Conveyancing Act 1919 (NSW), ss 66F, 66G

Cases Cited:
Eaton v Rare Nominees Pty Ltd [2019] 2 Qd R 222; (2019) 373 ALR 386; [2019] QCA 190
Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411
Forgeard v Shanahan (1994) 35 NSWLR 206
Foundas v Arambatzis [2020] NSWCA 47
Hogan v Baseden (1997) 8 BPR 15,723
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Kardos v Sarbutt (No. 2) [2006] NSWCA 206
Maio v Sacco [2009] NSWSC 413
O’Dea v O’Dea [2019] NSWSC 1560
Pascoe v Dyason [2011] NSWSC 1217
Ryan v Dries (2002) 10 BPR 19,497; [2002] NSWCA 3
Stubbings v James 2 Pty Ltd (2022) 399 ALR 409; [2022] HCA 6
Thistleton v Thistleton [2022] NSWSC 101
Tory v Tory [2007] NSWSC 1078
Vacation Club Ltd v A GG Properties Pty Ltd (2019) 19 BPR 39,799; [2019] NSWSC 1357
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Williams v Legg (1993) 29 NSWLR 687
Woodson (Sales) Pty Ltd v Woodson (Australia) Pty Ltd (1996) 7 BPR 14,685

Texts Cited:
S Gageler in “Expansion of the Fiduciary Paradigm into Commercial Relationships: The Australian Experience” in P Devonshire and R Havelock (eds), The Impact of Equity and Restitution in Commerce (Hart Publishing, Oxford, 2018)

Category: Principal judgment
Parties: Eva Joy Ambrus (Plaintiff)
Lee Ellen Buchanan (First Defendant)
Rudolf Ernst Thaesler (Second Defendant)
Erin Frances Donkin (Third Defendant)
Sharon Elizabeth Boyd (Fourth Defendant)
Willow Hallgren (Fifth Defendant)
Courtney Donkin (Sixth Defendant)
Michael Wayne Donkin (Seventh Defendant)
Earthwands Pty Limited (Eighth Defendant)
Caitlin Donkin (Ninth Defendant)
Barbara Straker (Tenth Defendant)
Ian James McQueen (Eleventh Defendant)
Michael David McQueen (Twelfth Defendant)
Representation:
Counsel:
D. Hand (Plaintiff)
P.G. Smart (First to Twelfth Defendants)
Solicitors:
Wall and Company Lawyers (Plaintiff)
PSD Lawyers (First to Twelfth Defendants)

File Number(s): 2021/157163
Publication…

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.

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Details

Case: [2022] NSWSC 1628
Decision Date: 29 November 2022

CaseChat Overview and Summary

In the case of Eva Joy Ambrus v Lee Ellen Buchanan, the dispute involved the application by Ambrus for the appointment of trustees for sale of a property held by 13 co-owners under the Conveyancing Act 1919 (NSW). Ambrus, who held a 1/56th share in the property, sought to sell her share to alleviate financial difficulties. Buchanan and other defendants opposed the application, citing potential hardship, promissory estoppel, breach of fiduciary duty, and unconscionability as grounds for refusal. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the defendants' claims of hardship, promissory estoppel, breach of fiduciary duty, and unconscionability provided sufficient grounds to refuse the application for the appointment of trustees for sale. The court was required to determine if these arguments could outweigh the statutory right of co-owners to apply for the sale of their shares under section 66G of the Conveyancing Act 1919 (NSW). Furthermore, the court had to assess the defendants' contention that the land had been used without planning approvals and whether this affected the application's outcome.

The court found that the mere assertion of hardship was insufficient to refuse the application for the appointment of trustees for sale. The court held that the statutory provision under section 66G did not permit refusal based solely on hardship. Additionally, the court concluded that the defendants had not established promissory estoppel, breach of fiduciary duty, or unconscionability. Therefore, these claims did not provide a valid basis to deny the application. The court emphasised that the co-owners had long-standing practices of occupying and improving different areas of the land independently, without planning approvals, but this did not negate the statutory right to seek a sale. As a result, the court made orders appointing trustees for the sale of Ambrus's share in the property.

The final orders included the appointment of trustees for the sale of Ambrus's share of the property, as requested. The court directed that the sale proceed under the supervision of the appointed trustees, ensuring that the process was fair and in accordance with the requirements of the Conveyancing Act 1919 (NSW). The defendants' objections were dismissed, and the application was allowed in its entirety.

Orders