MacDonald v MacDonald - [2009] NSWSC 794

CITATION: MacDonald v MacDonald [2009] NSWSC 794

HEARING DATE(S): 19 March 2009

JUDGMENT OF: McLaughlin AsJ

EX TEMPORE JUDGMENT DATE: 19 March 2009

DECISION: 1. I make orders as in prayers 1, 2, 3 and 4 in the statement of claim.
2. I order that the notice of motion filed by the defendants on 9 December 2008 be dismissed.
3. I order that the defendants pay the costs of the plaintiff of the aforesaid notice of motion, such costs to be on the party and party basis.
4. I order that the third defendant pay one-third of the costs of the plaintiff of the proceedings and that the balance of the costs of the plaintiff of the proceedings be paid equally from the share of the proceeds of sale of the land to which the first defendant is entitled and the share of the proceeds of the sale of the land to which the second defendant is entitled, all such costs to be on the party and party basis.
5. I stand the matter over to Thursday, 16 April 2009 before the Registrar for directions in respect to the taking of the account pursuant to prayer 4 in the statement of claim.

CATCHWORDS: CONVEYANCING - property held in co-ownership - application to appoint trustees for sale - standing of Plaintiff to make application - whether Plaintiff is a co-owner in possession - meaning of co-ownership in possession - possession here means a right to possession and does not mean physical occupation.

LEGISLATION CITED: Conveyancing Act 1919

CASES CITED: Clement v Jones (1909) 8 CLR 133
Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490
Wheeler v Baldwin (1934) 52 CLR 609
Horton v Jones (1935) 53 CLR 475
Gartside v Inland Revenue Commissioners [1968] AC 553
Breskvar v Wall (1971) 126 CLR 376
Mik v Cargill 485 P (2d) 229 (Oklahoma) (1971)
Ngatoa v Ford (1990) 19 NSWLR 72
Forgeard v Shanahan (1994) 35 NSWLR 206
Commonwealth Bank of Australia v MacDonald [2000] NSWSC 553
Tory v Tory [2007] NSWSC 1078
Kennon v Spry [2008] HCA 56

TEXTS CITED: Holdsworth, History of English Law (3rd ed, 1925)
F W Maitland, The Mystery of Seisin (1911)
Mendes da Costa, ‘Co-ownership under Victorian Land Law’ (1961) 3 MULR 137

PARTIES: Kenneth Nigel MacDonald (Plaintiff)
Stephen George MacDonald (First Defendant)
Denise Carol Carver (Second Defendant)
Garant Pty Limited (Third Defendant)

FILE NUMBER(S): SC 4893 of 2008

COUNSEL: Mr D. Weinberger (Plaintiff)
Mr M. J. Cohen (Defendants)

SOLICITORS: Alan Brown & Co (Plaintiff)
Binette Vale Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Thursday, 19 March 2009

4893 of 2008 KENNETH NIGEL MACDONALD v STEPHEN GEORGE MACDONALD and ORS

JUDGMENT

1 HIS HONOUR: These proceedings were instituted (somewhat curiously, in light of the nature of the relief claimed) by a statement of claim filed on 25 September 2008 by Kenneth Nigel MacDonald. The defendants named in that pleading are Stephen George MacDonald, Denise Carol…

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 MacDonald v MacDonald

Details

AGLC: MacDonald v MacDonald [2009] NSWSC 794
Case: [2009] NSWSC 794
Decision Date: 19 March 2009

CaseChat Overview and Summary

The case of MacDonald v MacDonald was heard in the Supreme Court of New South Wales. The Plaintiff, seeking to sell a property held in co-ownership, applied for the appointment of trustees to oversee the sale. The property was shared among the Plaintiff, the Defendant, and another party. The Defendant opposed the application on the basis that the Plaintiff did not have standing to make the application as she was not a co-owner in possession. The court had to determine whether the Plaintiff was indeed a co-owner in possession and, if so, what this term entailed.

The court examined the meaning of co-ownership in possession and considered whether the Plaintiff, who was not physically occupying the property, could still be considered a co-owner in possession. The court held that possession in this context referred to the right to possess the property, not necessarily physical occupation. Given that the Plaintiff had a legal interest in the property and the right to possess it, she was deemed a co-owner in possession. The court found that the Plaintiff had the requisite standing to apply for the appointment of trustees for the sale of the property.

In conclusion, the court granted the Plaintiff's application, finding that she was a co-owner in possession and therefore had the standing to apply for the appointment of trustees to oversee the sale of the property. The court's decision clarified the meaning of co-ownership in possession, emphasizing that it pertains to the legal right to possess the property rather than physical occupation. The final orders of the court appointed trustees to manage the sale of the property as requested by the Plaintiff.

Orders