KEDIS & KEDIS

The parties in this matter were KEDIS and KEDIS. The dispute concerned an application for an order for the sale of property pursuant to section 66G of the Conveyancing Act 1919 (NSW). The application was heard by Hartnett J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether it possessed the power to order the sale of property held on trust for sale, where one of the beneficiaries had sought to have the trust terminated and the property partitioned in specie. The Court was required to consider the interplay between the beneficiaries' right to partition and the trustee's power of sale, and whether the Court's discretion under section 66G could override the beneficiaries' rights.

Hartnett J reasoned that the right of a beneficiary to seek partition of property held on trust for sale is a fundamental equitable right. His Honour noted that while a trustee may have a power of sale, this power does not extinguish the beneficiaries' right to seek partition. The Court determined that section 66G of the Conveyancing Act 1919 (NSW) provides a mechanism for the sale of property held on trust for sale, but it does not grant the Court the power to compel a sale where the beneficiaries have a right to partition and have elected to exercise that right. The Court distinguished this situation from cases where there is no clear election by the beneficiaries or where partition is impracticable.

The Court ultimately dismissed the application for sale under section 66G, finding that the beneficiaries' right to partition was paramount in these circumstances.