Nathan and Nathan

The parties in this matter were Nathan and Nathan. 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 Kay J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether it had the power to make an order for sale under section 66G of the Conveyancing Act 1919 (NSW) where the property in question was subject to a registered mortgage. The Court was required to consider the interplay between the statutory power of sale under section 66G and the rights of a mortgagee under a registered mortgage.

Kay J determined that the Court retained its power to order a sale under section 66G of the Conveyancing Act 1919 (NSW) even where the property was subject to a registered mortgage. His Honour reasoned that the power to order sale under section 66G was a broad one, designed to facilitate the division of property held in co-ownership. The existence of a mortgage did not extinguish this power, but rather meant that any sale would need to occur subject to the rights of the mortgagee. The Court considered that the statutory power of sale under section 66G was not abrogated by the existence of a mortgage, and that the proceeds of sale would be distributed in accordance with the priorities of the parties, including the mortgagee.

The Court ordered the sale of the property.