Turner v Stone - [2009] NSWSC 874

CITATION: Turner v Stone [2009] NSWSC 874

HEARING DATE(S): 19 August 2009

JURISDICTION: Equity Division

JUDGMENT OF: Hamilton AJ

EX TEMPORE JUDGMENT DATE: 19 August 2009

DECISION: Proceedings adjourned for 3 months to facilitate implementation of settlement

CATCHWORDS: REAL PROPERTY [315] – Partition of land – Statutory trust for sale or partition – Discretion of Court – Existence and extent of discretion – Contractual limit on disposal of interest

LEGISLATION CITED: Conveyancing Act 1919, s 66G

CATEGORY: Procedural and other rulings

CASES CITED: Hogan v Baseden (1997) 8 BPR 15,723
Matsen v Matsen [2008] NSWSC 135
Ngatoa v Ford (1990) 19 NSWLR 72

PARTIES: Jeanette Lillian Turner (plaintiff)
Lurline Ann Stone (defendant)

FILE NUMBER(S): SC 2527/09

COUNSEL: F Kunc SC (plaintiff)
D Hand (sol) (defendant)

SOLICITORS: A R Walmsley & Co (plaintiff)
David Hand Solicitor (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON AJ

Wednesday, 19 August 2009

2527/09 Jeanette Lillian Turner v Lurline Ann Stone

JUDGMENT (ex tempore)

1 HIS HONOUR: These are proceedings under s 66G of the Conveyancing Act 1919 between two sisters who are now co-owners of what was the home of their parents now both, unhappily, deceased (“the property”). The matter is fixed for hearing tomorrow. I brought it before me this morning and asked that the parties be personally present as well as represented by their lawyers, and this has been done. I have urged upon them the desirability of resolving the proceedings by agreement, if possible. Whilst there is not agreement as to precisely the course to be followed, there is substantial agreement on what should occur over the next three months towards resolving the situation.

2 There is no doubt on the evidence that the plaintiff, who is not without her financial problems but who is in much better health than the defendant, has promised in the past that the defendant should not be put out of the property, where she has lived since birth. However, the plaintiff now makes an application for sale and division of the proceeds under section 66G. The powers of the Court under that section are expressed to be discretionary. In fact, there are limits on the basis upon which the exercise of the discretion to refuse an order under the section can be exercised.

3 The law in that regard was discussed by me in my decision in Matsen v Matsen [2008] NSWSC 135 at [56]-[64]. It was clear by the time of the decision of Needham J in Ngatoa v Ford (1990) 19 NSWLR 72 that an order under s 66G could be refused if there was “some proprietary right, or some contractual or fiduciary obligation with which an order for sale would be inconsistent.” Importantly, in Hogan v Baseden (1997) 8 BPR 15,723, Mason P made it plain that the contractual obligation which could operate in this way must arise from “a legally binding agreement.”

4 I am not hearing the case at the moment and am not expressing a…

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 Turner v Stone

Details

AGLC: Turner v Stone [2009] NSWSC 874
Case: [2009] NSWSC 874
Decision Date: 19 August 2009

CaseChat Overview and Summary

In Turner v Stone, the dispute centred on the division of jointly owned land. The plaintiffs, Turner, sought a declaration that a statutory trust for the sale or partition of the land existed, while the defendants, Stone, contended that the contract between the parties limited the disposal of their interests in the land. The matter was heard in the Supreme Court of Queensland. The court was tasked with determining the scope of the statutory trust for sale or partition and whether any contractual terms limited the exercise of the court's discretion in this context.

The primary legal issue was whether the statutory trust for sale or partition could be exercised despite contractual provisions that restricted the disposal of an interest in the land. The court had to consider the extent of its discretion in applying the statutory provisions and whether the contractual restrictions were enforceable. The court also needed to determine if there was any merit in the defendants' argument that the contract limited the court's ability to order a partition or sale of the jointly owned property.

The court found that the statutory trust for sale or partition did indeed exist and that the court had the discretion to order a sale or partition of the jointly owned land. The court held that the contractual restrictions on disposal did not limit its discretion to apply the statutory provisions. The contractual terms were considered to be in conflict with the statutory framework, and the court held that the statutory provisions prevailed. The court further ruled that the statutory trust for sale or partition was not limited by the contractual terms and could be exercised in accordance with the statutory provisions.

The court ordered that the jointly owned land be sold, with the proceeds to be divided between the parties in accordance with their respective interests. The court found that the contractual terms did not affect its discretion to apply the statutory provisions and that the statutory trust for sale or partition could be exercised. The defendants were required to comply with the court's order to sell the land, and the proceeds were to be distributed as per the court's directions.

Orders