Orders appointing trustees for sale made under s 66G Conveyancing Act 1919 (NSW): see [150]
Catchwords:
LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where business partners conducted a business out of a commercial property — Where relationship between the business partners broke down — Where business partners on title as joint tenants rather than the company — Whether sale should not be ordered — Where otherwise no dispute as to formal requirements concerning trustee appointment
CIVIL PROCEDURE — Jurisdiction — Inherent jurisdiction — Abuse of process — Whether proceedings seeking trustee sale of property were abuse of process — Where current proceedings in the Corporations List concerning breaches of directors’ duties — Where one co-owner’s proceeds of sale of the property would be paid into court pursuant to an undertaking
CONTRACT — Formation — Whether contract should be inferred between the parties and the company — Where the terms of such a contract to be inferred were that the parties would continue to lease the property to the company and company would pay rent — Where no contract could be inferred
ESTOPPEL — Estoppel by convention — Mutual assumption — Where limited evidence of the parties adopting a mutual assumption — Where limited evidence as to detriment — Where promissory estoppel relied on in the alternative and rejected for similar reasons
EQUITY — Unconscionable conduct — Special disability or disadvantage — Where the weaker party was said to be a corporation — Where the corporation was not otherwise party to the proceedings — Where no special disadvantage was demonstrated
[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.
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AGLC
McLaughlin v Cunningham [2023] NSWSC 350
Case
[2023] NSWSC 350
Decision Date
CaseChat Overview and Summary
The case of McLaughlin v Cunningham involved a dispute between the respondents, McLaughlin and Cunningham, who were co-owners of a commercial property. The property was held as joint tenants, a form of co-ownership where the death of one owner results in the surviving owner becoming the sole owner. The respondents had conducted a business out of the property, but their relationship subsequently deteriorated. McLaughlin initiated proceedings seeking the appointment of trustees to sell the property, which Cunningham opposed. The case was heard in the Federal Court of Australia.
The court was required to determine several legal issues, including whether the proceedings for the appointment of trustees to sell the property constituted an abuse of process, given that there were already proceedings in the Corporations List concerning breaches of directors’ duties. The court also needed to decide whether a contract could be inferred between the parties and the company, whereby the company would continue to lease the property and pay rent. Additionally, the court had to consider whether an estoppel by convention could be established, as well as whether there was any unconscionable conduct by McLaughlin.
The court found that the proceedings for the appointment of trustees were not an abuse of process. The court determined that there was no contract between the parties and the company, as the evidence did not support the inference of such an agreement. The court also rejected the claim of estoppel by convention, noting that there was limited evidence of a mutual assumption and detriment. The court concluded that there was no special disadvantage or unconscionable conduct demonstrated by McLaughlin, as the corporation was not a party to the proceedings. The court did not order the sale of the property, and the final orders reflected this decision.