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Groch v Knights

Groch v Knights

Case [2018] NSWSC 1365 6 September 2018

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Groch v Knights [2018] NSWSC 1365
Hearing dates: 14 May; 13 July; 1 August 2018
Date of orders: 06 September 2018
Decision date: 06 September 2018
Jurisdiction: Equity - Real Property List
Before: Parker J
Decision:
See [64]

Catchwords:
LAND LAW – Conveyancing Act 1919 (NSW), s 66G – application for appointment of trustees for sale – discretionary considerations – hardship or unfairness not a basis to refuse application

LAND LAW – Conveyancing Act 1919 (NSW), s 66G – application for appointment of trustees for sale – power to appoint trustees for sale before question of accounting between co-owners is determined – power under general law or s 66G(6) to determine incidental questions of the beneficiaries’ entitlements following order for sale
LAND LAW – co-ownership – incidents – accounting between co-owners – general principles discussed
Legislation Cited:
Conveyancing Act 1919 (NSW), ss 36A, 66G, 66F
Income Tax Assessment Act 1997 (Cth), ss 104.10, 110.25
Uniform Civil Procedure Rules 2005 (NSW), r 10.25

Cases Cited:
Application of Richard Albarran; Harb v Harb (2010) 17 BPR 33,295; [2010] NSWSC 1251
Caird Seven Pty Ltd v Attia (2016) 92 NSWLR 457; [2016] NSWSC 1452
Callow v Rupchev (2009) 14 BPR 27,533; [2009] NSWCA 148
Coshott v Crouch [2018] NSWSC 853
Dobrijevich v Burge (2001) 10 BPR 19,525; [2001] NSWSC 1176
Forgeard v Shanahan (1994) 35 NSWLR 206
Myers v Clark [2018] NSWSC 1029
Ryan v Dries (2002) 10 BPR 19,497; [2002] NSWCA 3
Tory v Tory [2007] NSWSC 1078

Category: Principal judgment
Parties: Larissa Jane Groch (Plaintiff)
Keith Charles Knights (Defendant)
Representation:
Counsel:
E White (Plaintiff)

Solicitors:
AWB Legal (Plaintiff)
Self-represented:
Keith Charles Knights (Defendant)

File Number(s): 2017/378584
Publication restriction: Nil

Judgment

This is an application under the Conveyancing Act 1919 (NSW), s 66G, for the appointment of trustees for the sale of a property at Kyogle in northern New South Wales.
The plaintiff, Larissa Jane Groch, and the defendant, Keith Charles Knights, are the registered proprietors of the property as joint tenants in equal shares. They acquired the property in around March 2011. It is a 40-hectare rural block with a timber building on it.
Mr Knights and Ms Groch were previously in a relationship. After it ended, Ms Groch moved to Victoria. Mr Knights continued to live, on and off, at the property. He is now being held on remand in Cessnock Correctional Centre awaiting trial on unrelated criminal charges. Mr Knights is unrepresented and defends the proceedings in person by video link from the Correctional Centre.
On behalf of Ms Groch, an additional order was initially sought under the Conveyancing Act, s 36A, for the division of certain chattels located at the property that were allegedly acquired by Ms Groch as co-owner. Counsel for Ms Groch abandoned this claim at the hearing on 1 August 2018. It is not necessary to consider it any further.
The issues for determination are whether to make the order under s 66G…

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 Groch v Knights

Details

AGLC: Groch v Knights [2018] NSWSC 1365
Case: [2018] NSWSC 1365
Decision Date: 06 September 2018

CaseChat Overview and Summary

The case of Groch v Knights involved the legal dispute between the parties over the sale of jointly owned property. The primary issue was the refusal by one co-owner, Knights, to appoint trustees for the sale of the property, which was sought by Groch. The case was heard in the Supreme Court of New South Wales, which was tasked with determining whether the refusal to appoint trustees was justified and whether any hardship or unfairness could be a basis for refusal.

The legal issues before the court included whether the refusal to appoint trustees for sale could be justified on the basis of hardship or unfairness, and whether the power to appoint trustees under the Conveyancing Act 1919 (NSW), section 66G, could be exercised before the question of accounting between co-owners was determined. The court also needed to consider the principles governing the appointment of trustees for sale and the resolution of incidental questions about beneficiaries’ entitlements following an order for sale.

The court found that the refusal to appoint trustees was not justified on the basis of hardship or unfairness, as these were not permissible considerations under section 66G. The court emphasised that the power to appoint trustees for sale could be exercised before any accounting between co-owners was determined. The court also clarified that any incidental questions about beneficiaries’ entitlements could be determined under the general law or section 66G(6). The court held that the application for the appointment of trustees should be granted, as the refusal was not based on valid grounds.

The final orders of the court mandated the appointment of trustees for the sale of the jointly owned property, with the terms and conditions of the sale to be determined by the trustees. The court's decision underscored the importance of adhering to statutory provisions and the limited scope of discretionary considerations in such applications.

Orders