Forrest v Nix

The case of Forrest v Nix involved a dispute between co-owners of a property over the application of section 66G of the Conveyancing Act 1919. The plaintiff, Forrest, sought an order for the appointment of trustees for the sale of the property, claiming a one-third equitable interest pursuant to a deed entered into with the defendants. The defendants, Nix, argued against the plaintiff's entitlement to such an order, asserting that the restrictions in the deed were an impermissible restriction on alienation and should be interpreted to limit to the life of the parties where the deed has no express term. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the plaintiff had an interest in the property to which section 66G applied, whether the court should make an order for the appointment of trustees for sale, and if the provisions of the deed were a permissible restriction on alienation. Additionally, the court considered whether the restrictions in the deed should be interpreted as limited to the life of the parties, and whether an order under section 66G should be made "almost as of right" when the deed is still in effect and both parties are in breach.

The court found that the order for the appointment of trustees for sale should be refused. It determined that the plaintiff's claim for a one-third equitable interest was not sufficient to warrant the court making an order for the sale of the property under section 66G. The court held that the restrictions in the deed were not an impermissible restriction on alienation, and therefore, the provisions of the deed should not be interpreted as limited to the life of the parties. The court also found that an order under section 66G should not be made "almost as of right" where the deed is still on foot and both parties are in breach.

The court's final orders were that the plaintiff's application for the appointment of trustees for sale be dismissed, and that the deed remain in effect until such time as it is terminated by mutual agreement or by court order. The court emphasised the importance of the parties fulfilling their obligations under the deed and finding a mutually agreeable resolution to their dispute over the property.