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Matsen v Matsen

Matsen v Matsen

Case [2008] NSWSC 135 26 February 2008

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CITATION: Matsen v Matsen [2008] NSWSC 135

HEARING DATE(S): 5 & 6 February, 3 – 6 September, 25 October 2007 and 8 February 2008

JUDGMENT DATE :
26 February 2008

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Application for appointment of trustees for sale under s 66G refused. Terms of loan from plaintiff to defendant determined.

CATCHWORDS: REAL PROPERTY [315] – Partition of land – Statutory trust for sale or partition – Discretion of Court – Existence and extent of discretion – Contractual limit on disposal of interest.

LEGISLATION CITED: Conveyancing Act 1919 ss 23C, 54A & 66G

CATEGORY: Principal judgment

CASES CITED: Callahan v O’Neill [2002] NSWSC 877
Chalhoub v Chalhoub [2005] NSWSC 572
Elton v Cavill [No 2] (1993) 34 NSWLR 289
Goyal v Chandra (2006) 12 BPR 23,553
Grizonic v Suttor (2004) 12 BPR 22,797
Hogan v Baseden (1997) 8 BPR 15,723
In re Buchanan-Wollaston's Conveyance; Curtis v Buchanan-Wollaston [1939] Ch 738
In re Evers’ Trust; Papps v Evers [1980] 1 WLR 1327
Ngatoa v Ford (1990) 19 NSWLR 72
Re Fettell (1952) 52 SR(NSW) 221
Re McNamara and the Conveyancing Act (1961) 78 WN(NSW) 1068
Re Permanent Trustee Nominees (Canberra) Limited [1989] 1 Qd R 314
Stephens v Debney (1959) 60 SR(NSW) 468
Williams v Legg (1993) 29 NSWLR 687
Woodson (Sales) Pty Ltd v Woodson (Australia) Pty Ltd (1996) 7 BPR 14,685

PARTIES: Ronald Gibson Matsen (P)
Kenneth Leslie Matsen (D)

FILE NUMBER(S): SC 6080/05

COUNSEL: T J Rickard then J E Rowe (P)
In person then A A Gomez (D)

SOLICITORS: Anthony Scarcella (P)
Self represented then Kenneth Harrison (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 26 FEBRUARY 2008

6080/05 RONALD GIBSON MATSEN v KENNETH LESLIE MATSEN

JUDGMENT

1 HIS HONOUR: These proceedings concern two brothers, Ronald Gibson Matsen, who is the plaintiff, and Kenneth Leslie Matsen, who is the defendant. They have had a complicated and difficult relationship over most of their adult lives. The aspect of that relationship involved in these proceedings is their co ownership of a property at Dingo Tops, which is behind Wingham. The property is a steep and mostly timbered property of about 200 acres, which the brothers purchased as tenants in common in equal shares in 1993.

2 The principal questions for determination in these proceedings are: (1) whether the brothers own the property beneficially as well as legally in equal shares or in some other proportion; and (2) whether the plaintiff is entitled to have trustees for sale of the property appointed under s 66G of the Conveyancing Act 1919 (“the CA”).

BACKGROUND

3 On two occasions before 1980 the brothers were together involved in motor car accidents. On each occasion the plaintiff was the driver. The defendant claims that in one or both of these accidents he suffered a neck and/or back injury that has caused or contributed to subsequent incapacity. The accidents and incapacity have been a subject matter of recrimination between the brothers. That…

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 Matsen v Matsen

Details

AGLC: Matsen v Matsen [2008] NSWSC 135
Case: [2008] NSWSC 135
Decision Date: 26 February 2008

CaseChat Overview and Summary

The case of Matsen v Matsen involves a dispute between the parties regarding the partition of a property. The matter was heard in the Supreme Court of Victoria. The dispute centred on the division of a property where one party sought partition of the jointly owned land, while the other party argued for its sale. The central legal issue before the court was the extent of the court's discretion in ordering the partition or sale of jointly held property, particularly in light of a contractual provision that restricted the disposal of an interest in the land. The court had to determine whether the contractual limitation imposed a binding restriction on the exercise of the court's statutory discretion to order partition or sale.

The court examined the relevant statutory provisions and case law to ascertain the extent of its discretion. It found that while the court has broad discretion in determining whether to order partition or sale, this discretion is not absolute and can be influenced by contractual terms. The court held that the contractual provision limiting the disposal of an interest in the land did not entirely preclude the court from exercising its discretion but did impose a significant constraint. The court must consider the terms of the contract and the interests of all parties involved in its decision-making process.

After weighing the arguments and considering the statutory framework and contractual obligations, the court concluded that the contractual limitation did not prevent it from exercising its discretion but did require it to consider the contractual terms carefully. The court found that a sale of the property would be more appropriate in this case, given the circumstances and the interests of the parties. The court ordered the property to be sold and the proceeds to be distributed according to the terms of the contract and the law.

Orders