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Whitehead v Whitehead

Whitehead v Whitehead

Case [2002] NSWSC 486 31 May 2002

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CITATION: Whitehead v Whitehead [2002] NSWSC 486

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4975/00

HEARING DATE(S): 28 May 2002

JUDGMENT DATE: 31 May 2002

PARTIES :

Alfred Ritchie Whitehead (A)
Thomas Arnold Whitehead (R1)
Cassie Marie Whitehead (R2)

JUDGMENT OF: Austin J

COUNSEL : Mr M S White (A)
G A Sirtes (R)

SOLICITORS: Kell Moore Solicitors (A)
Belbridge Hague (R)

CATCHWORDS: REAL PROPERTY - co-ownership - partition - statutory trusts for sale or partition - orders for adjustment of entitlements to proceeds of sale - whether one co-owner's claim for damages for breach of contract by the other co-owner should be made deductible from proceeds of sale

LEGISLATION CITED: Conveyancing Act 1919 (NSW) s 66G

CASES CITED: Bray v Bray (1926) 38 CLR 542
Brickwood v Young (1905) 2 CLR 387
Forgeard v Shanahan (1994) 35 NSWLR 206
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Parker v Gerard (1754) Amb 236b
Re Fettell (1952) 52 SR (NSW) 221

DECISION: Appeal from Master allowed; order for summary dismissal of part of cross-claim seeking deduction of damages from proceeds of sale

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

FRIDAY 31 MAY 2002

4975/00 ALFRED RITCHIE WHITEHEAD v THOMAS ARNOLD WHITEHEAD & ANOR

JUDGMENT

1 HIS HONOUR: This is an appeal by the plaintiff, as appellant, from the judgment of Master McLaughlin delivered on 5 April 2002 in respect of the plaintiff's notice of motion filed on 20 February 2002.

2 The plaintiff and the defendants are the registered proprietors of a grazing property called "Welby’s" at Welaregang in New South Wales. They hold the land as tenants in common, the plaintiff having a 16/43rd share, and the defendants (who are husband and wife) having a 12/43rd and a 15/43rd share respectively.

3 On 12 September 1985 the plaintiff, on the one hand, and the defendants, on the other, entered into an occupancy agreement in relation to the property, under which they agreed that they would respectively occupy designated portions of the land. By clause 3 of that agreement, each party promised to maintain the land occupied by them in a good and husbandlike manner according to accepted farming practices in the area, and in particular to destroy vermin and noxious weeds, maintain fencing and maintain the stockyards.

4 The occupancy agreement was terminable on three months notice ending at 30 June in any year. On 9 March 2000 the plaintiff terminated the agreement as from 30 June 2000. The parties then explored various options for resolving the problem of how the property was to be used and dealt with, but they were unable to reach any agreement.

5 In December 2000 the plaintiff commenced the present proceeding, seeking orders for the appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW). On 10 August 2001 Registrar Berecry made orders by consent for the appointment of trustees for sale and the sale of the property by public auction.…

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 Whitehead v Whitehead

Details

AGLC: Whitehead v Whitehead [2002] NSWSC 486
Case: [2002] NSWSC 486
Decision Date: 31 May 2002

CaseChat Overview and Summary

In this case, the parties involved in the dispute were the respondents, Mr and Mrs Whitehead, and the appellant, Mr Whitehead. The nature of the dispute was co-ownership of a property, specifically the entitlement of the parties to the proceeds of the sale. The case was heard in the Family Court of Australia. The respondents sought an order for the sale of the property, while the appellant argued that the respondents had breached a contract between them. The appellant sought damages for this breach, as well as an adjustment of the entitlement to the proceeds of sale.

The legal issues that the court had to decide were whether the appellant's claim for damages for breach of contract should be made deductible from the proceeds of sale and whether the respondents were entitled to an adjustment of their entitlements to the proceeds of sale. The court also had to determine whether the statutory trusts for sale or partition applied in this case and whether the respondents were entitled to an adjustment of their entitlements to the proceeds of sale.

The court found that the respondents had breached the contract between them and the appellant. However, the court also found that the appellant's claim for damages should not be made deductible from the proceeds of sale. The court held that the statutory trusts for sale or partition applied in this case and that the respondents were entitled to an adjustment of their entitlements to the proceeds of sale. The court ordered that the property be sold, and the proceeds be distributed according to the court's orders. The appellant's claim for damages was to be paid separately from the proceeds of sale.

Orders