Thistleton v Thistleton - [2022] NSWSC 101

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Thistleton v Thistleton [2022] NSWSC 101
Hearing dates: 4 February 2022
Date of orders: 11 February 2022
Decision date: 11 February 2022
Jurisdiction: Equity
Before: Darke J
Decision:
Orders to be made for the sale of the co-owned property pursuant to s 66G of the Conveyancing Act.

Catchwords:
LAND LAW – co-ownership – statutory trust for sale – discretion of court – whether seeking order for sale is precluded by an estoppel – statements made by plaintiff that she would not make any claim on a house the defendant had placed on the land – plaintiff recognises entitlement of defendant to an adjustment to reflect contribution to sale proceeds attributable to the house – no estoppel precludes plaintiff from seeking orders for sale – not shown that partition would be more beneficial for co-owners – orders for sale to be made – Conveyancing Act 1919 (NSW), s 66G

Legislation Cited:
Conveyancing Act 1919 (NSW), s 66G

Cases Cited:
Hogan v Baseden (1997) 8 BPR 15,723
Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411
Foundas v Arambatzis [2020] NSWCA 47
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Lewin v Lewin [2019] NSWSC 380
Segal v Barel (2013) 84 NSWLR 193; [2013] NSWCA 92
Tory v Tory [2007] NSWSC 1078

Category: Principal judgment
Parties: Kaye Allayne Thistleton (Plaintiff)
Janelle Theloy Thistleton (Defendant)
Representation:
Counsel:
Ms J Gatland (Plaintiff)
Solicitors:
Clark Rideaux Solicitors (Plaintiff)
In person (Defendant)

File Number(s): 2021/268500
Publication restriction: None

Judgment

By a Summons filed on 20 September 2021, the plaintiff, Kaye Thistleton, seeks relief under s 66G of the Conveyancing Act 1919 (NSW) for the sale of a property at Greendale (near Bega) that she owns with the defendant, Janelle Thistleton. The plaintiff and the defendant are sisters. They inherited the property from their late father in 2011. They hold the property, which consists of two lots contained in a single certificate of title, as tenants in common in equal shares.
The property, which is sometimes referred to as “Lachlans” or “Brogo”, was originally purchased by the parents of the parties around 1954. It is located in a bush setting, and has an area of about 65ha. At the time of the original purchase there were no structures on the land. Later, an old shed was erected. In 1989, the defendant, with her father’s consent, purchased a house and had it transported to the property where it was placed upon foundations. The defendant then added a water tank and a system of water pipes to service the house. It is not clear on the evidence whether the house became a fixture and thus part of the land. It seems likely that it did, but in any case nothing seems to turn on this.
The sale of the property is resisted by the defendant. Her principal contention is that the conduct of the plaintiff in seeking the relief is inequitable and contrary to an estoppel which operates…

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 Thistleton v Thistleton

Details

AGLC: Thistleton v Thistleton [2022] NSWSC 101
Case: [2022] NSWSC 101
Decision Date: 11 February 2022

CaseChat Overview and Summary

The dispute in this case was between Thistleton and Thistleton. The central issue was the determination of the sale of jointly owned property, given the co-ownership arrangement and the applicability of the statutory trust for sale under the Conveyancing Act 1919 (NSW). The case was heard by the Supreme Court of New South Wales.

The court was tasked with deciding whether an estoppel prevented the plaintiff from seeking an order for the sale of the jointly owned property, based on statements made by the plaintiff that she would not claim any share of the house placed on the land by the defendant. The court also needed to assess whether partition would be more beneficial for the co-owners than an order for sale. The plaintiff acknowledged the defendant's entitlement to an adjustment in the sale proceeds to reflect their contribution to the value of the house.

The court held that no estoppel precluded the plaintiff from seeking orders for sale. The plaintiff's statements did not create a binding estoppel, as they did not amount to a representation that would lead the defendant to reasonably believe that the plaintiff would not seek an order for sale. The court further found that partition was not shown to be more beneficial for the co-owners than an order for sale, given the circumstances of the case. Consequently, the court made orders for the sale of the jointly owned property.

The final orders included the sale of the jointly owned property, with an adjustment to the sale proceeds to reflect the defendant's contribution to the value of the house. The court relied on the statutory trust for sale under section 66G of the Conveyancing Act 1919 (NSW) to make these orders.

Orders