Re H

This matter concerned an application by the respondent, Re H, for an order for the sale of a property held in joint tenancy with the applicant, Mr. H. The parties were formerly married and had separated. Mr. H sought to resist the sale, arguing that the property was his sole residence and that he had made significant contributions to its upkeep and improvement. Re H contended that the property was no longer required for the accommodation of either party and that a sale was necessary to enable her to acquire alternative accommodation. The application was heard by Coleman J in the Supreme Court of New South Wales.

The central legal issue before the Court was whether it should exercise its discretion under section 66G of the Conveyancing Act 1919 (NSW) to order the sale of the jointly owned property. This required the Court to consider the competing interests of the joint tenants and the circumstances surrounding their separation and subsequent needs. Specifically, the Court had to weigh Mr. H's desire to retain the property as his sole residence against Re H's need for her share of the equity to facilitate her own housing arrangements.

Coleman J reasoned that the discretion to order a sale under section 66G of the Conveyancing Act 1919 (NSW) is broad and should be exercised having regard to all the circumstances of the case. His Honour noted that while Mr. H had made substantial contributions to the property, the parties had been separated for a considerable period, and the property was no longer serving the needs of both joint tenants. The Court found that Re H had a legitimate need for her capital to be released to enable her to secure suitable accommodation, and that Mr. H's continued occupation of the property, to the exclusion of Re H's beneficial interest, was not sustainable indefinitely. The principle applied was that where joint tenants are separated and one party requires their interest in the property to be realised for their own benefit, and the property is no longer serving the needs of both, a sale may be ordered.

The Court ordered the sale of the property and directed that the proceeds be divided equally between the parties, after accounting for any agreed or ordered adjustments.