Wheller and Wheller

In the matter of *Wheller and Wheller*, heard before Macmillan J, the dispute concerned an application for an order for the sale of property pursuant to section 66G of the *Conveyancing Act 1919* (NSW). The applicants sought the sale of a property held by the parties as tenants in common, while the respondent opposed the sale, seeking instead an order for partition.

The central legal issue before the court was whether the circumstances warranted an order for sale under section 66G of the *Conveyancing Act 1919* (NSW), or if partition was the more appropriate remedy. This required the court to consider the principles governing the exercise of discretion under section 66G, particularly in light of the respondent's preference for partition and the nature of the property in question.

Macmillan J considered the established principles that an order for sale under section 66G is a discretionary remedy. His Honour noted that while partition is the traditional remedy for co-owned property, section 66G provides an alternative where sale is more advantageous. The court weighed the practicalities of partition against the potential benefits of sale, taking into account the evidence presented by both parties regarding the property's suitability for division and the market conditions. The judge ultimately found that a sale would be more advantageous to the parties than partition, considering the specific characteristics of the property and the likely costs and difficulties associated with a physical division.

Consequently, Macmillan J made orders for the sale of the property pursuant to section 66G of the *Conveyancing Act 1919* (NSW).