Tory v Tory

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.