NSW Caselaw
Reported Decision : (2006) NSW ConvR 56-150
New South Wales Supreme Court
CITATION : Hummelstad v Hicks [2006] NSWSC 120 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S) : 17 May 2005, 23 August 2005 (written submissions to 30 August 2005)
JUDGMENT DATE : 7 March 2006
JURISDICTION : Equity Division
JUDGMENT OF : Associate Justice McLaughlin at 1
DECISION : Subject to any arithmetical corrections, I make the following orders. (1) I make orders as in prayers 1 and 2 in the amended summons. (2) I order that the statutory trust for sale be altered pursuant to section 66G(6) of the Conveyancing Act 1919, to provide, (a) that the Plaintiff shall receive out of the proceeds of sale of the land the amount of $4,313, and (b) that the trustees shall implement the agreement made between Helen Margaret Hummelstad and David Paul Hicks on 3 August 2002. (3) I order that the Plaintiff shall be at liberty to purchase the land whether at auction or by private treaty. (4) I order that the costs of each party on the party and party basis be paid out of the proceeds of sale of the land. (5) I reserve to the parties liberty to apply.
CATCHWORDS : Real property. Co-ownership. Trustees for sale. Variation of statutory trust. Liability of one co-owner to pay an occupation fee to the other. Whether there has been an ouster of one co-owner by the other.
LEGISLATION CITED : Environmental Planning and Assessment Act 1979 Conveyancing Act 1919
Biviano v Natoli (1998) 43 NSWLR 695 Bull v Bull [1955] 1 QB 234 Forgeard v Shanahan (1994) 35 NSWLR 206 Henderson v Eason (1851) 17 QB 701; 117 ER 1451 Jacobs v Seward (1872) LR 5 HL 464 Leigh v Dickeson (1884) 15 QBD 60 Luke v Luke (1936) 36 SR (NSW) 310 CASES CITED : McMahon v Public Curator of Queensland [1952] QSR 197 Ngatoa v Ford (1990) 19 NSWLR 72 Pascoe v Swan (1859) 27 Beav 508: 54 ER 201 Rice v George (1873) 20 Gr 221 Rees v Rees [1931] SASR 78 Re Tolman's Estate (1928) 23 TasLR 29 Teasdale v Sanderson (1864) 33 Beav 534; 55 ER 476. Williams v Williams (1899) 68 LJ (Ch) 528 Jones v Jones [1977] 1 WLR 438
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