HOGAN v BASEDEN [1997] NSWCA 151

HOGAN v BASEDEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL EQUITY DIVISION

MASON P, BEAZLEY and STEIN JJA 26 September 1997, 24 November 1997 [1997] NSWCA 151

Real property — Declaration that parties held property as tenants in common — Whether trial judge erred in making order that property not to be sold without written consent of the respondent — Whether appellants entitled to order for sale of property — Conveyancing Act 1919 (NSW) s66G.

This appeal arose from a finding that contributions made by the appellants to improvements on the respondent's property were made in circumstances in which the appropriate relief was a declaration that the appellants and respondents held the property as tenants in common in equal shares. In addition to the declaration, an order was made that the premises should not be sold without the written consent of the respondent or her legal guardian (04). The appellants challenged 04, submitting that they were entitled to an order for sale of the property, pursuant to s66G of the Conveyancing Act 1919 (NSW).

HELD, allowing the appeal:

1. The trial judge erred in making O04.

2. Although the power of the Court in s66G is discretionary, cases in which discretion is exercised against the applicant are limited to matters where some proprietary right, or some contractual or fiduciary obligation would make an order for sale inconsistent.

Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068; Stephens v Debney (1959) 60 SR (NSW) 468; Ngatoa v Ford (1990) 19 NSWLR 72; Williams v Legg (1993) 29 NSWLR 687 considered.

3. In this case findings of fact upon which the trial judge based O4 were not, or of themselves were not, sufficient to refuse an order under s66G for the appointment of trustees to hold the property on the statutory trust for sale.

4. However, it would be inappropriate to make an order for sale as it did not appear that the principles which apply to a s66G application were fully canvassed before his Honour, if it all. Nor was it certain that the parties had directed their evidence to the issues relevant to a s66G application. Certainly, there had been no compliance with the procedural requirements of a s66G application.