Rex Phillip Tory v Sarjit Kuar Tory [2007] NSWSC 1078
HEARING DATE(S):
20/09/07
JUDGMENT DATE :
24 September 2007
JURISDICTION:
Equity Division
JUDGMENT OF:
White J
EX TEMPORE JUDGMENT DATE:
24 September 2007
DECISION:
See paragraph 76 of the judgment.
CATCHWORDS:
REAL PROPERTY – Sale or partition – Co-owner seeking sale under s 66G of Conveyancing Act 1919 (NSW) – Grounds for refusing sale or making order for sale on terms so that defendant entitled to purchase plaintiff’s half share at value of half share rather than at half value of property if it were sold as a whole – Estoppel – Whether plaintiff made representation that he would not do anything inconsistent with holding property until rezoning or rezoning and development completed – No unequivocal representation made to such effect – Fiduciary duty – Any fiduciary relationship existing between parties does not extend to imposing obligation to hold property for purpose of rezoning or rezoning and development – Unconscionability – Unconscionability without more not a ground for refusing order for sale – Where detriment suffered by defendant was incurring of personal liability and mortgaging her share of property – Detriment redressed by plaintiff’s undertaking to indemnify defendant for liabilities incurred by mortgage over property – Held that grounds for refusing order for sale or making order for sale on terms not made out.
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
WHITE J
Monday, 24 September 2007
2169/07 Rex Phillip Tory v Sarjit Kuar Tory
JUDGMENT
1 HIS HONOUR: This is an application under s 66G of the Conveyancing Act 1919 (NSW) for an order appointing trustees for sale of land in Yamba in New South Wales.
2 The plaintiff and the defendant are co-owners as tenants in common in equal shares. The land in question is 15.24 hectares of rural land with a potential for development as residential land if it is rezoned.
3 The defendant opposes the application unless an order is made on terms that she first have…
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.
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AGLC
Tory v Tory [2007] NSWSC 1078
Case
[2007] NSWSC 1078
Decision Date
CaseChat Overview and Summary
The case of Tory v Tory involved a dispute between the co-owners of a property, with the plaintiff seeking to sell the property under section 66G of the Conveyancing Act 1919 (NSW). The central issue was whether the court should refuse to order the sale of the property or alternatively, order the sale on terms that would allow the defendant to purchase the plaintiff's half share at the value of half the property rather than at half the value of the property if it were sold as a whole. The case hinged on whether there were any grounds to support such an order, including the existence of an estoppel, a fiduciary duty, or unconscionability.
The court considered whether the plaintiff had made any unequivocal representation that he would not take any action inconsistent with holding the property until rezoning or the completion of a development, which could have constituted an estoppel. The court found that no such unequivocal representation had been made. Additionally, the court examined whether there was any fiduciary relationship between the parties that would impose an obligation on the plaintiff to hold the property for the purpose of rezoning or completing a development. The court concluded that any fiduciary relationship that existed did not extend to such an obligation. The court also considered whether the defendant's detriment in incurring personal liability and mortgaging her share of the property, coupled with the plaintiff's undertaking to indemnify her for the liabilities incurred by the mortgage, constituted unconscionability. The court held that unconscionability alone was not a sufficient ground for refusing an order for sale.
Ultimately, the court found that there were no grounds to refuse an order for sale or to make an order for sale on terms that would allow the defendant to purchase the plaintiff's half share at the value of half the property. The court ordered that the property be sold and the proceeds be divided equally between the parties.