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Stone v Stone

Stone v Stone

Case [2014] NSWSC 1655 21 November 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Stone v Stone [2014] NSWSC 1655
Hearing dates: 24 October 2014
Decision date: 21 November 2014
Jurisdiction: Equity Division
Before: Darke J
Decision:
Trustees for sale appointed pursuant to s 66G of the Conveyancing Act 1919.

Catchwords:
REAL PROPERTY - co-ownership - appointment of trustees for sale - whether partnership land is "property (other than chattels)" within s 66G of the Conveyancing Act 1919 (NSW) - whether partnership land is held in "co-ownership" within s 66G of the Conveyancing Act 1999 (NSW) - whether relief should be declined on discretionary grounds - equitable estoppel

PARTNERSHIP - dissolution - partners subsequently transferring and dealing with partnership assets - partners not seeking orders for winding up or an account - limitation period for seeking an account expired - whether winding up complete
EQUITY - estoppel - estoppel by encouragement - promise to leave land in will - whether detrimental reliance established
Legislation Cited: Conveyancing Act 1919 (NSW) ss 36A, 54A, 66F(1), 66G
NSW Trustee and Guardian Act 2009 (NSW) s 16(1)(g)
Partnership Act 1892 (NSW) s 22(1)
Uniform Civil Procedures Rules r 42.1
Cases Cited: Beale v Trinkler [2007] NSWSC 1058
Bush v Hanlon (Supreme Court (NSW), Young J, 4 August 1998, unrep)
Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd [1974] HCA 22; (1974) 131 CLR 321
Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483
Faitrouni v El Omar [1999] NSWSC 1984
Joseph v Agrey [2011] NSWSC 1601
McCaughey v Commissioner of Stamp Duties (NSW) [1914] HCA 45; (1914) 18 CLR 475
Pascoe v Dyason [2011] NSWSC 1217
Reynolds v Medway [2013] NSWSC 206
Short v Crawley (No. 30) [2007] NSWSC 1322
Sidhu v Van Dyke [2014] HCA 19
Stone v Stone [2001] NSWSC 138
Thorner v Major [2009] UKHL 18
Tory v Tory [2007] NSWSC 1078
Watson v Ralph [1982] HCA 35; (1982) 148 CLR 646
Williams v Legg (1993) 29 NSWLR 687
Texts Cited: R P Meagher, J D Heydon and M J Leeming's Equity, Doctrines and Remedies, 4th edition (2002)
Category: Principal judgment
Parties:
Patricia Floramelle Stone by her tutor NSW Trustee and Guardian (plaintiff)
Michael John Stone (defendant)
Representation: Counsel: S Clemmett (plaintiff)
M F Newton (defendant)
Solicitors: Zucker Legal (plaintiff)
Koffels Solicitors & Barristers (defendant)

File Number(s): 2014/97576
Publication restriction: Nil

Judgment

Introduction

The plaintiff, by her tutor, the NSW Trustee and Guardian, seeks the appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) in respect of four parcels of rural land together known as "Wilga Flats" ("the Land"). The Land is located near the Newell Highway in the vicinity of Peak Hill.

The plaintiff and the defendant, her son Mr Michael Stone, are the registered proprietors of the Land as joint tenants. The plaintiff is 85 years of age. Since 2011 she has lived in a nursing home. On 17 April 2002, orders were made by the Guardianship Tribunal that her…

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 Stone v Stone

Details

AGLC: Stone v Stone [2014] NSWSC 1655
Case: [2014] NSWSC 1655
Decision Date: 21 November 2014

CaseChat Overview and Summary

In the case of Stone v Stone, the dispute before the court involved issues of co-ownership and the application of the Conveyancing Act 1919 (NSW) to partnership land. The primary issue was whether the partnership land in question was considered "property (other than chattels)" and held in "co-ownership" within the meaning of section 66G of the Act. This section allows for the appointment of trustees for the sale of property when there is an impasse among co-owners. The court was also required to determine if equitable estoppel principles could apply to prevent the respondent from dealing with the partnership land in a certain way, despite the absence of a formal promise or representation.

The court's reasoning involved an examination of the nature of partnership assets and whether they could be classified as "property" under the Act. It was found that the partnership land was indeed "property" and held in co-ownership. The court also considered whether the respondent's actions constituted a detriment that could give rise to an estoppel by encouragement. The court held that while there was an expectation based on an informal promise to leave the land in a will, there was no established detrimental reliance on the part of the applicant. Additionally, the court noted that the partnership was effectively dissolved, and the partners had dealt with the partnership assets without seeking formal winding up or an account.

The court declined to appoint trustees for sale of the partnership land, finding that there was no basis for the application under section 66G. Furthermore, the court held that the principles of equitable estoppel did not apply in this case, as the detriment required to establish estoppel by encouragement was not present. The court's decision was that the application for the appointment of trustees for sale should be dismissed.

Orders